WT/DS524/R  
13 April  2022 
(22-3007) Page: 1/474 
 Original:  Spanish  
 
  
 
COSTA RICA – MEASURES CONCERNING THE IMPORTATION OF  
FRESH AVOCADOS FROM MEXICO  
REPORT OF THE PANEL  
  WT/DS524/R  
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  TABLE OF CONTENTS  
1  INTRODUCTION  ................................ ................................ ................................ .........  26 
1.1  Complaint by Mexico  ................................ ................................ ................................ ... 26 
1.2  Panel establishment and composition  ................................ ................................ ............  26 
1.3  Panel proceedings ................................ ................................ ................................ ....... 26 
1.3.1   General  ................................ ................................ ................................ ..................  26 
1.3.2   Costa  Rica's request for a preliminary ruling ................................ ................................  28 
1.3.3   Consultation of experts and international organizations  ................................ ................  29 
1.3.3.1   Panel decision to consult individual experts and the IPPC Secretariat  ...........................  29 
1.3.3.2   Panel selection of individual experts  ................................ ................................ ........  31 
1.3.3.3   Panel questions for the individual experts  ................................ ................................  34 
1.3.3.4   Request for information from the Panel to the p arties  ................................ ................  36 
1.3.3.5   Panel meeting with the parties and experts  ................................ ..............................  37 
1.3.3.6   Consultation with the IPPC Secretariat  ................................ ................................ ..... 39 
2  FACTUAL ASPECTS  ................................ ................................ ................................ ..... 40 
2.1  The m easures at issue  ................................ ................................ ................................  40 
2.1.1   Manual for conducting qualitative pest risk analyses by entry pathway 
(Manual  NR-ARP-PO-01_M -01) ................................ ................................ ...........................  40 
2.1.1.1   Introduction, purpose and scope  ................................ ................................ .............  40 
2.1.1.2   Stage 1: Initiation  ................................ ................................ ................................ . 41 
2.1.1.3   Stage 2: Pest risk assessment  ................................ ................................ ................  43 
2.1.1.3.1   Pest categorization  ................................ ................................ .............................  43 
2.1.1.3.2   Assessment of the probability of introduction and spread  ................................ ........  43 
2.1.1.3.2.1   Probability of entry of a pest  ................................ ................................ .............  44 
2.1.1.3.2.2   Probability of establishment  ................................ ................................ ..............  46 
2.1.1.3.2.3   Probability of spread after establishment  ................................ ............................  47 
2.1.1.3.3   Assessment of potential economic consequences ................................ ....................  48 
2.1.1.3.4   Degree of u ncertainty  ................................ ................................ .........................  49 
2.1.1.3.5   Conclusion of the pest risk assessment stage  ................................ .........................  49 
2.1.1.4   Stage 3: Pest risk management  ................................ ................................ ..............  49 
2.1.1.4.1   Identification and selection of appropriate risk management options .........................  49 
2.1.1.4.2   Risk management options acc ording to risk assessment outcome  .............................  50 
2.1.1.5   Datasheets  ................................ ................................ ................................ ...........  51 
2.1.2   Report ARP -002-2017 ................................ ................................ ..............................  52 
2.1.2.1   Introductory remarks to the PRA  ................................ ................................ .............  52 
2.1.2.1.1   Introduction  ................................ ................................ ................................ ...... 52 
2.1.2.1.2   Background and the importance of the avocado for Costa  Rica ................................ . 52 
2.1.2.1.3   Uncertainty  ................................ ................................ ................................ ....... 55 
2.1.2.1.4   Pest risk analysis  ................................ ................................ ...............................  55 
2.1.2.2   Stage 1: Initiation  ................................ ................................ ................................ . 56 WT/DS524/R  
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  2.1.2.2.1   ASBVd  ................................ ................................ ................................ ..............  56 
2.1.2.2.2   Interna tional regulations concerning ASBVd  ................................ ..........................  57 
2.1.2.2.3   Conclusion of the initiation stage  ................................ ................................ ..........  58 
2.1.2.3   Stage 2: Pest risk assessment  ................................ ................................ ................  58 
2.1.2.3.1   Pest categorization  ................................ ................................ .............................  58 
2.1.2.3.2   Assessment of the probability of introduction and spread  ................................ ........  58 
2.1.2.3.2.1   Probability of entry of ASBVd  ................................ ................................ ............  58 
2.1.2.3.2.2   Probability of establishment  ................................ ................................ ..............  62 
2.1.2.3.2.3   Probability of spread after establishment  ................................ ............................  63 
2.1.2.3.3   Assessment of potential eco nomic consequences ................................ ....................  64 
2.1.2.3.4   Conclusion of the pest risk assessment  ................................ ................................ . 65 
2.1.2.4   Stage 3: Pest risk management  ................................ ................................ ..............  65 
2.1.2.5   ASBVd d atasheet  ................................ ................................ ................................ .. 66 
2.1.3   Report ARP -006-2016 ................................ ................................ ..............................  68 
2.1.4   Resolution DSFE -003-2018 ................................ ................................ .......................  69 
2.1.5   Resolution DSFE -002-2018 ................................ ................................ .......................  70 
2.2  International Standards for Phytosanitary Measures (ISPM)  ................................ .............  71 
2.2.1   Background: The International Plant Protection Convention (IPPC) and its 
international standard -setting activities  ................................ ................................ ...............  71 
2.2.2   ISPMs identified by Mexico  ................................ ................................ ........................  72 
2.2.2.1   ISPM No.  1: Phytosanitary principles for the protection of plants and the 
application of phytosanitary measures in international trade  ................................ ...................  72 
2.2.2.2   ISPM No.  2: Framework for pest risk analysis  ................................ ...........................  73 
2.2.2.3   ISPM No.  4: Requirements for the establishment of pest free areas  .............................  73 
2.2.2.4   ISPM No.  5: Glossary of phytosanitary terms  ................................ ............................  74 
2.2.2.5   ISPM No.  6: Guidelines for surveillance  ................................ ................................ .... 74 
2.2.2.6   ISPM No.  8: Determination of pest status in an area  ................................ .................  75 
2.2.2.7   ISPM No.  11: Pest risk analysis for quarantine pests  ................................ .................  76 
2.2.2.8   ISPM No.  32: Categorization of commodities according to their pest risk  ......................  76 
2.3  Other f actual aspects  ................................ ................................ ................................ .. 77 
2.3.1   The avocado  ................................ ................................ ................................ ...........  77 
2.3.1.1   General characteristics  ................................ ................................ ..........................  77 
2.3.1.2   Avocado farming  ................................ ................................ ................................ ... 78 
2.3.1.2.1   Edaphoclimatic conditions  ................................ ................................ ...................  78 
2.3.1.2.2   Recalcitrant nature of avocado seeds  ................................ ................................ .... 79 
2.3.1.2.3   Propagation methods of avocado  ................................ ................................ ..........  79 
2.3.2   Avocado sunblotch viroid (ASBVd)  ................................ ................................ .............  80 
2.3.2.1   Description of the basic characteristics of ASBVd  ................................ ......................  80 
2.3.2.2   Symptoms of ASBVd  ................................ ................................ .............................  82 
2.3.2.3   Transmission of ASBVd  ................................ ................................ ..........................  83 
2.3.2.4   Methods for the detection and diagnosis of ASBVd  ................................ ....................  83 WT/DS524/R  
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  3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................ . 84 
4  ARGUMENTS OF THE PARTIES  ................................ ................................ ....................  84 
5  ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ .........  84 
6  INTERIM REVIEW  ................................ ................................ ................................ ....... 84 
6.1  Introduction  ................................ ................................ ................................ ...............  84 
6.2  Reque st for review concerning Costa Rica's comments on the inputs provided by the 
expert Ricardo Flores Pedauyé  ................................ ................................ ............................  85 
6.3  Requests for re view concerning whether Mexico has demonstrated that ASBVd is 
present in Costa Rica  ................................ ................................ ................................ .........  85 
6.3.1   Section 7.3  ................................ ................................ ................................ .............  85 
6.3.2   Paragraph 7.286  ................................ ................................ ................................ ...... 86 
6.3.3   Paragraph 7.295  ................................ ................................ ................................ ...... 86 
6.3.4   Paragraph 7.301 of the Interim Report  ................................ ................................ ....... 87 
6.4  Request for review concerning trade in avocados between Costa Rica and Mexico and 
between Costa Rica and other countries in which ASBVd is present  ................................ .........  88 
6.5  Request for review concerning whether Manual NR -ARP-PO-01_M -01 may, directly or 
indirectly, affect international trade  ................................ ................................ .....................  89 
6.6  Request for review concerning Reports ARP -002-2017 and ARP -006-2016 and the 
determination of absence of ASBVd in the territory of Costa Rica  ................................ ............  89 
6.7  Request for review concerning the manner in which the Panel will analyse Mexico's 
arguments regar ding the determination of absence of ASBVd in Costa Rica in the Reports 
ARP-002-2017 and ARP -006-2016 ................................ ................................ ......................  90 
6.8  Requests for review  concerning the general surveillance system as part of the basis 
for the determination of absence of ASBVd in Costa Rica  ................................ .......................  91 
6.8.1   Paragraphs 7.276 and 7.482  ................................ ................................ .....................  91 
6.8.2   Paragraph 7.477  ................................ ................................ ................................ ...... 92 
6.8.3   Paragraph 7.483  ................................ ................................ ................................ ...... 92 
6.8.4   Paragraph 7.486  ................................ ................................ ................................ ...... 93 
6.9  Requests for review concerning the specific surveillance system as part of the basis 
for the determinatio n of absence of ASBVd in Costa Rica  ................................ .......................  94 
6.9.1   Paragraph 7.570  ................................ ................................ ................................ ...... 94 
6.9.2   Paragraphs 7.572 through 7.581  ................................ ................................ ...............  95 
6.9.3   Paragraphs 7.648 through 7.671  ................................ ................................ ...............  97 
6.9.4   Paragraph 7.722  ................................ ................................ ................................ ...... 99 
6.9.5   Paragraph 7.773  ................................ ................................ ................................ ...... 99 
6.9.6   Paragraph 7.824 of the Interim Report  ................................ ................................ ...... 100 
6.9.7   Paragraph 7.844  ................................ ................................ ................................ ..... 102 
6.10  Request for review concerning spontaneous germination in Reports A RP-002-2017 
and ARP -006-2016 ................................ ................................ ................................ ...........  102 
6.11  Request for review concerning the evaluation of the likelihood of entry  ..........................  103 
6.11.1   Paragraph 7.1202  ................................ ................................ ................................ . 103 
6.11.2   Paragraph 7.1221  ................................ ................................ ................................ . 104 
6.11.3   Paragraph 7.1226  ................................ ................................ ................................ . 106 
6.11.4   Paragraphs 7.1226 and 7.1239  ................................ ................................ ...............  108 WT/DS524/R  
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  6.11.5   Paragraph 7.1228  ................................ ................................ ................................ . 109 
6.11.6   Paragraph 7.1246  ................................ ................................ ................................ . 109 
6.12  Request for review concerning the general arguments on the evaluation of the 
likelihood of entry, establishment and spread in Reports ARP -002-2017 and 
ARP-006-2016 ................................ ................................ ................................ .................  110 
6.13  Request for review concerning the titles of sections 7.6.4.1.1 and 7.6.4.1.2  ....................  111 
6.14  Request for review concerning whether either of Mexico's proposed alternative 
measures are significantly less restrictive to trade than Resolutions DSFE -003-2018 and 
DSFE -002-2018 ................................ ................................ ................................ ...............  112 
6.15  Requests for review concerning the summary of the parties' arguments  .........................  112 
7  FINDINGS  ................................ ................................ ................................ ................  112  
7.1  General principles regarding the applicable standard of review, treaty interpretation, 
burden of proof, and order of analysis  ................................ ................................ ................  112 
7.1.1   Function of the Panel and applicable standard of review  ................................ ..............  112 
7.1.2   Interpretation of t he relevant treaty provisions  ................................ ...........................  114 
7.1.3   Burden of proof  ................................ ................................ ................................ ...... 115 
7.1.4   Order of analysis  ................................ ................................ ................................ .... 115 
7.2  How to address the measures at issue and the scope of the SPS  Agreement  .....................  117 
7.2.1   General introduction to the section  ................................ ................................ ...........  117 
7.2.2   The Panel's analysis  ................................ ................................ ................................  118 
7.2.2.1   Whether the measures identified by Mexico are measures for the purposes of the 
dispute settlement procedure  ................................ ................................ ............................  118 
7.2.2.2   Whether  the Panel will analyse individually the measures identified by Mexico  .............  121 
7.2.2.3   Whether Costa  Rica's measures are sanitary or phytosanitary measures covered 
by the SPS  Agreement  ................................ ................................ ................................ ...... 122 
7.2.2.3.1   Resolutions DSFE -002-2018 and DSFE -003-2018 ................................ ..................  123 
7.2.2.3.1.1   Whether Resolutions DSFE -002-2018 and DSFE -003-2018 are SPS measures 
pursuant to paragraph 1 of Annex A to the SPS  Agreement  ................................ ...................  123 
7.2.2.3.1.2   Whether Resolutions DSFE -002-2018 and DSFE -003-2018 may, directly or 
indirectly, affect international trade  ................................ ................................ ....................  126 
7.2.2.3.1.3   Conclusion on Resolutions DSFE -002-2018 and DSFE -003-2018 ...........................  128 
7.2.2.3.2   Reports ARP -002-2017 and ARP -006-2016 ................................ ...........................  128 
7.2.2.3.2.1   Whether Reports ARP -002-2017 and ARP -006-2016 are SPS measures 
pursuant to paragraph 1 of Annex A to the SPS  Agreement  ................................ ...................  128 
7.2.2.3.2.2   Whether Reports ARP -002-2017 and ARP -006-2016 may, directly or 
indirectly, affect international trade  ................................ ................................ ....................  137 
7.2.2.3.2.3   Conclusion regarding Reports ARP -002-2017 and ARP -006-2016 ..........................  141 
7.2.2.3.3   Manual NR -ARP-PO-01_M -01 ................................ ................................ ..............  141 
7.2.2.3.3.1   Whether Manual NR -ARP-PO-01_M -01 is an SPS measure pursuant to 
paragraph 1 of Annex A to the SPS  Agreement  ................................ ................................ .... 141 
7.2.2.3.3.2   Whether Manual NR -ARP-PO-01_M -01 may, dir ectly or indirectly, affect 
international trade  ................................ ................................ ................................ ...........  144 
7.2.2.3.3.3   Conclusion on Manual NR -ARP-PO-01_M -01 ................................ .......................  146 
7.2.2.4   Whether the Panel will analyse jointly the measures identified by Mexico  ....................  146 
7.2.3   Overall conclusion of this section  ................................ ................................ ..............  151 WT/DS524/R  
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  7.3  Whether Mexico has demonstrated that ASBVd is present in Costa  Rica............................  152 
7.4  Mexico's claims w ith respect to risk assessment obligations under the 
SPS Agreement ................................ ................................ ................................ ................  160 
7.4.1   General introduction to the section  ................................ ................................ ...........  160 
7.4.2   The relevant legal provisions  ................................ ................................ ....................  160 
7.4.3   The Panel's standard of review and the legal standard  ................................ .................  161 
7.4.3.1   The Panel's standard of review under Article  5.1 of the SPS  Agreement  ......................  161 
7.4.3.2   Legal standard under Article  5.1 of the SPS  Agreement  ................................ ............  162 
7.4.3.3   Legal standard under Article  5.2 of the SPS  Agreement  ................................ ............  164 
7.4.3.4   Legal standard under Article  5.3 of the SPS  Agreement  ................................ ............  165 
7.4.3.5   Legal standard under Article  2.2 of the SPS  Agreement  ................................ ............  167 
7.4.4   Structure of the Panel's analysis of Mexico's claims regarding risk assessment 
obligations  ................................ ................................ ................................ ......................  168 
7.4.4.1   Structure of the analysis under Article  5.1 of the SPS  Agreement  ...............................  169 
7.4.4.2   Treatment of Articles 5.2 and 5.3 of th e SPS  Agreement  ................................ ...........  171 
7.4.4.3   Treatment of Article  2.2 of the SPS  Agreement  ................................ ........................  173 
7.4.5   Analysis of the risk assessment contained in Reports ARP -002-2017 and 
ARP-006-2016 ................................ ................................ ................................ .................  174 
7.4.5.1   The determination of absence of ASBVd in Costa  Rica in ARP -002-2017 and 
ARP-006-2016 ................................ ................................ ................................ .................  174 
7.4.5.1.1   Mexico's argument with respect to the determination of absence of ASBVd in 
Costa  Rica and Costa  Rica's questioning of the Panel's terms of referenc e with respect to 
that determination  ................................ ................................ ................................ ...........  174 
7.4.5.1.2   Reports ARP -002-2017 and ARP -006-2016 and the determination of absence of 
ASBVd in the territory of Costa  Rica ................................ ................................ ...................  176 
7.4.5.1.2.1   The manner in which the Panel will analyse Mexico's arguments regarding 
the det ermination of absence of ASBVd in Costa  Rica in the Reports ARP -002-2017 and 
ARP-006-2016 ................................ ................................ ................................ .................  180 
7.4.5.1.2.2   General surveillance sy stem as part of the basis for the determination of 
absence of ASBVd in Costa  Rica ................................ ................................ .........................  181 
7.4.5.1.2.3   Specific surveillance system as part of the basis for the determination of 
absence of ASBVd in Costa Rica  ................................ ................................ .........................  185 
7.4.5.1.3   Conclusion on the  determination of freedom from ASBVd in Costa Rica  ....................  245 
7.4.5.2   Whether the pest or disease, as well as the associated potential biological and 
economic consequences, were identified  ................................ ................................ .............  246 
7.4.5.3   Whether the likelihood of pests' or diseases' entry, establishm ent or spread, as 
well as the associated potential biological and economic consequences, were evaluated ............  248 
7.4.5.3.1   Introductio n to the section  ................................ ................................ .................  248 
7.4.5.3.2   The risk assessment methodology in Manual NR -ARP-PO-01_M -01 ..........................  249 
7.4.5.3.2.1   Reasoning of the risk assessor  ................................ ................................ .........  251 
7.4.5.3.2.2   Flexibility to address ASBVd -specific issues  ................................ ........................  252 
7.4.5.3.3   Diversion  from intended use and spontaneous germination in Reports 
ARP-002-2017 and ARP -006-2016 ................................ ................................ .....................  252 
7.4.5.3.3.1   Introduction to the secti on ................................ ................................ ..............  252 
7.4.5.3.3.2   The significance of diversion from intended use in Reports ARP -002-2017 
and ARP -006-2016 ................................ ................................ ................................ ...........  253 WT/DS524/R  
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  7.4.5.3.3.3   The importance of documenting diversion from intended use in 
Reports  ARP-002-2017 and ARP -006-2016 ................................ ................................ ..........  258 
7.4.5.3.3.4   Sources cited in support of the assertions concerning diversion from intended 
use in Reports ARP -002-2017 and ARP -006-2016 ................................ ................................  262 
7.4.5.3.3.5   Documents cited in support of the assertions concerning diversion from 
intended use not included in Rep orts ARP -002-2017 and ARP -006-2016 ................................ . 267 
7.4.5.3.3.6   Discussion on the viability of the use of Hass as rootstock  ................................ ... 275 
7.4.5.3.3.7   The relevance of spontaneous germination in Reports ARP -002-2017 and 
ARP-006-2016 ................................ ................................ ................................ .................  277 
7.4.5.3.3.8   The importance of documenting spontaneous germination in Reports 
ARP-002-2017 and ARP -006-2016 ................................ ................................ .....................  280 
7.4.5.3.3.9   Sources cited in support of the statements regarding spontaneous 
germination in Reports ARP -002-2017 and ARP -006-2016 ................................ ....................  282 
7.4.5.3.3.10   Documents cited in support of the statements on spontaneous germination 
that are not included in Reports ARP -002-2017 and AR P-006-2016 ................................ ........  285 
7.4.5.3.3.11   Discussion of the occurrence of spontaneous germination  ................................ .. 291 
7.4.5.3.3.12   Conclusion to the section  ................................ ................................ ...............  295 
7.4.5.3.4   Whether the likelihood of entry, establishment and spread was evaluated in 
Reports ARP -002-2017 and ARP -006-2016 ................................ ................................ ..........  296 
7.4.5.3.4.1   Evaluation of the likelihood of entry  ................................ ................................ .. 296 
7.4.5.3.4.2   Evaluation of the likelihood of establishment  ................................ ......................  314 
7.4.5.3.4.3   Evaluation of the likelihood of spread  ................................ ................................  325 
7.4.5.3.5   Evaluation of the associated potential biological and economic consequences  ...........  332 
7.4.5.3.6   Other general arguments concerning the evaluation of the likelihood of entry, 
establishment and spread in Reports  ARP-002-2017 and ARP -006-2016 ................................ . 337 
7.4.5.3.7   Conclusion on the evaluation of the likelihood of entry, establishment and 
spread, and of the associated potential biological and economic consequences  ........................  346 
7.4.5.4   Whether the likelihood of entry, establishment or spread of a pest or disease was 
evaluated according to the sanitary or phytosanitary measures which might be applied  ............  348 
7.4.5.5   Whether Costa Rica's risk assessment in Reports ARP -002-2017 and ARP -006-
2016 is appropriate to the circumstances  ................................ ................................ ............  353 
7.4.5.6   Whether the risk assessment techniques of international organizations were 
taken into account  ................................ ................................ ................................ ...........  361 
7.4.5.7   Whether the factors listed in Article  5.2 of the SPS  Agreement were taken into 
account  ................................ ................................ ................................ ..........................  366 
7.4.5.8   Whether the fac tors listed in Article  5.3 of the SPS  Agreement were taken into 
account in the assessment of the risk in question  ................................ ................................ . 371 
7.4.5.9   Conclusion on the risk assessment in Reports ARP -002-2017 and ARP -006-2016 .........  379 
7.4.6   Whether Costa Rica's SPS measures are based  on the risk assessment ..........................  381 
7.4.7   Whether the factors listed in Article  5.3 of the SPS  Agreement were taken into 
account in deter mining the measure to be applied  ................................ ...............................  385 
7.4.7.1   Whether Costa Rica has acted inconsistently with Article  2.2 of the 
SPS Agreement ................................ ................................ ................................ ................  387 
7.4.8   Overall conclusion of the section on Mexico's claims concerning the risk 
assessment  ................................ ................................ ................................ .....................  390 
7.5  Mexico's claims regarding the obligations of the SPS  Agreement concerning trade 
restrictiveness  ................................ ................................ ................................ .................  390 WT/DS524/R  
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  7.5.1   General introduction  ................................ ................................ ...............................  390 
7.5.2   The relevant legal provisions  ................................ ................................ ....................  391 
7.5.3   Legal standard for determining the ALOP  ................................ ................................ ... 391 
7.5.4   The Panel's analysis of Costa Rica's appropriate level of pro tection (ALOP)  .....................  393 
7.5.5   Legal standard of Article  5.6 of the SPS  Agreement  ................................ .....................  399 
7.5.6   The Panel's analysis  ................................ ................................ ................................  402 
7.5.6.1   Whether any of the alternative measures proposed by Mexico achieve Costa 
Rica's ALOP  ................................ ................................ ................................ .....................  402 
7.5.6.1.1   Whether domestic regu lation that prevents diversion from intended use 
achieves Costa Rica's ALOP  ................................ ................................ ...............................  402 
7.5.6.1.2   Whether the ASBVd symptom -free certific ation of shipments achieves Costa 
Rica's ALOP  ................................ ................................ ................................ .....................  410 
7.5.6.2   Conclusion on whether any of the alternative measures proposed by Mexico 
achieve Costa Rica's ALOP  ................................ ................................ ................................ . 413 
7.5.6.3   Whether any of the alternative measures proposed are reasonably available 
taking in to account technical and economic feasibility  ................................ ...........................  414 
7.5.6.3.1   Whether the domestic regulation that prevents diversion from intended  use is 
reasonably available taking into account technical and economic feasibility  .............................  414 
7.5.6.3.2   Whether the ASBVd symptom -free certification of shipments is reasonably 
available taking into account technical and economic feasibility  ................................ .............  415 
7.5.6.4   Whether any  of the alternative measures proposed by Mexico are significantly 
less restrictive to trade than Resolutions DSFE -003-2018 and DSFE -002-2018 ........................  416 
7.5.6.4.1 Whether the regulation on diversion from intended use or ASBVd symptom -free 
certification are measures that are significantly less restrictive to trade than Resolutions 
DSFE -003-2018 and DSFE -002-2018 ................................ ................................ ..................  416 
7.5.7   Overall conclusion of this section  ................................ ................................ ..............  420 
7.6  Mexico's claims with respect to the obligations pertaining to arbitrary or unjustifiable 
discrimination or disguised trade restrictions  ................................ ................................ ....... 421 
7.6.1   General introduction  ................................ ................................ ...............................  421 
7.6.2   The relevant legal provisions  ................................ ................................ ....................  422 
7.6.3   Legal standard under Article  5.5 of the SPS  Agreement  ................................ ...............  422 
7.6.4   The Panel's analysis  ................................ ................................ ................................  426 
7.6.4.1   Introduction  ................................ ................................ ................................ ........  426 
7.6.4.1.1   Whether Costa Rica has adopted its own levels of protection in different 
situations  ................................ ................................ ................................ ........................  427 
7.6.4.1.2   Whether Costa Rica's levels of protection exhibit arbitrary or unjustifiable 
distinctions in their treatment of different s ituations  ................................ .............................  437 
7.6.4.1.3   Whether there is discrimination or a disguised restriction on international trade  ........  445 
7.6.4.2   Conclusion with respect to Article 5.5 of the SPS Agreement  ................................ ..... 448 
7.6.5   Legal standard under Article  2.3 of the SPS  Agreement  ................................ ...............  449 
7.6.6   The Panel's analysis  ................................ ................................ ................................  452 
7.6.7   Overall conclusion of this section  ................................ ................................ ..............  454 
7.7  Mexico's claims with respect to the obligations under the SPS Agreement regarding 
adaptation to regional conditions  ................................ ................................ .......................  454 
7.7.1   General introduction to the section  ................................ ................................ ...........  454 WT/DS524/R  
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  7.7.2   The relevant legal provisions  ................................ ................................ ....................  455 
7.7.3   Legal standard under Article  6.1 of the SPS  Agreement  ................................ ...............  455 
7.7.4   The Panel's analysis  ................................ ................................ ................................  457 
7.7.4.1   Whether Costa Rica has acted inconsistently with its obligation under the second 
sentence of Article 6.1 of the SPS Agreement  ................................ ................................ ...... 457 
7.7.4.1.1   Level of prevalence of specific diseases or pests  ................................ ....................  458 
7.7.4.1.2   The existence of eradication and control programmes  ................................ ............  460 
7.7.4.1.3   Appropr iate criteria or guidelines developed by the relevant international 
organizations  ................................ ................................ ................................ ...................  461 
7.7.4.1.4   Conclusion with respect to the se cond sentence of Article 6.1 of the SPS 
Agreement  ................................ ................................ ................................ ......................  462 
7.7.4.2   Whether Costa Rica has acted inconsistently with its obligation under the first 
sentence of Article 6.1 of the SPS Agreement  ................................ ................................ ...... 462 
7.7.5   Overall conclusion of this section  ................................ ................................ ..............  464 
7.8  Mexico's claims related to harmonization  ................................ ................................ ...... 464 
7.8.1   General introduction to the section  ................................ ................................ ...........  464 
7.8.2   The Panel's analysis  ................................ ................................ ................................  465 
7.8.3   Overall conclusion of this section  ................................ ................................ ..............  468 
7.9  Mexico's claims relating to general conformity with the SPS Agreement  ............................  468 
7.9.1   General introduction to the section  ................................ ................................ ...........  468 
7.9.2   The relevant legal provisions  ................................ ................................ ....................  468 
7.9.3   Legal sta ndard under Articles  1.1 and 2.1 of the SPS  Agreement  ................................ .. 469 
7.9.4   The Panel's analysis  ................................ ................................ ................................  469 
7.9.5   Overall conclusion of this section  ................................ ................................ ..............  470 
7.10  Mexico's claims and Costa Rica's defence under the GATT  1994 ................................ ..... 470 
7.10.1   General introduction to the section  ................................ ................................ ..........  470 
7.10.2   The Panel's analysis  ................................ ................................ ..............................  470 
7.10.3   Overall conclusion of this section  ................................ ................................ ............  472 
8  CONCLUSIONS AND RECOMMENDATIONS  ................................ ................................  472  
 
  WT/DS524/R  
- 10 - 
  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURE S OF THE PANEL  
Contents  Page  
Annex A -1 Working Procedures of the Panel  4 
Annex A-2 Additional Working Procedures of the Panel for consultation s with experts  11 
Annex A-3 Additional Working Procedures o f the Panel on  meetings with remote participants  14 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex B-1 Integrated executive s ummary of the arguments of Mexico  18 
Annex B-2 Integrated executive summary of the arguments of Costa  Rica 44 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex C-1 Integrated executive summary of the arguments of Canad a  73 
Annex C-2 Integrated executive summary of the arguments of the European  Union  75 
ANNEX D  
PRELIMINARY RESOLUTION  OF THE PANEL  
Contents  Page  
Annex D -1 Preliminary Resolution  of the Panel  78 
 
  WT/DS524/R  
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted 
26 January  2015, DSR 2015:II, p. 579  
Argentina – Import Measures  Panel  Report s, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and 
Add.1, adopted 2 6 January  2015, as modified (WT/DS438/R) and upheld 
(WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R 
/ WT/DS444/AB/R / WT/DS445/AB/R, DSR 2015:II, p. 783  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New  Zealand , WT/DS367/AB/R, adopted 1 7 December  2010, 
DSR 2010:V, p. 2175  
Australia – Apples  Panel  Report , Australia – Measures Affecting the Importation of Apples 
from New  Zealand , WT/DS367/R, adopted 1 7 December  2010, as modified 
by Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, p. 2371  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November  1998, DSR 1998:VIII, p. 
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, p. 3407  
Australia – Salmon 
(Article  21.5 – Canada)  Panel Report , Australia – Measures Affecting Importation of Salmon – 
Recourse to Article  21.5 of the DSU by Canada , WT/DS18/RW, adopted 
20 March  2000, DSR 2000:IV, p. 2031  
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 1 7 December  2007, DSR 2007:IV, p. 
1527 
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, p. 2985  
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the 
Renewable Energy Generation Sector / Canada – Measures Relating to the 
Feed-in Tariff Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 
24 May 2013, DSR 2013:I, p. 7  
Canada – Wheat Exports and 
Grain Imports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat 
and Treatment of Imported Grain , WT/DS276/AB/R, adopted 
27 September  2004, DSR 2004:VI, p. 2739 
Canada – Continued 
Suspension  Appellate Body Report, Canada – Continued Suspension of Obligations in 
the EC – Hormones Dispute , WT/DS321/AB/R, adopted 
14 November  2008, DSR 2008:XIV, p. 5373  
Canada – Continued 
Suspension  Panel  Report , Canada – Continued Suspension of Obligations in the EC – 
Hormones Dispute , WT/DS321/R and Add.1 to Add.7, adopted 
14 November  2008, as modified by Appellate Body Report 
WT/DS321/AB/R, DSR 2008:XV, p. 5757  
Canada – Pharmaceutical 
Patents  Panel  Report , Canada – Patent Pr otection of Pharmaceutical Products , 
WT/DS114/R, adopted 7 April 2000, DSR 2000:V, p. 2289  
Canada – Dairy Appellate Body Report, Canada – Measures Affecting the Importation of 
Milk and the Exportation of Dairy Products , WT/DS103/AB/R, 
WT/DS113/AB/R, and Corr.1, adopted 2 7 October  1999, DSR 1999:V, p. 
2057 
EC – Tube or Pipe Fittings  Appellate Body Report, European  Communities  – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 1 8 August  2003, DSR 2003:VI, p. 2613  
EC – Asbestos  Appellate Body Report, European  Communities  – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB/R, adopted 
5 April 2001, DSR 2001:VII, p. 3243  
EC – Approval and Marketing 
of Biotec h Products  Panel  Report s, European  Communities  – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R, Add.1 to Add.9 and 
Corr.1 / WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to 
Add.9 and Corr.1, adopted 2 1 November  2006, DSR 2006:III, p. 847  WT/DS524/R  
- 12 - 
  Short title  Full case title and citation  
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, p. 591  
EC – Bananas III (Article  21.5 
– Ecuador II) / EC – Bananas 
III (Article  21.5 – US) Appellate Body Reports, European  Communities  – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adop ted 
11 December  2008, and Corr.1 / European  Communities  – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article  21.5 of 
the DSU by the United  States , WT/DS27/AB/RW/USA and Corr.1, adopted 
22 December  2008, DSR 2008:XVIII, p. 71 65 
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 2 5 September  1997, as modified by Appellate Body Report 
WT/DS27/AB/R, DSR 1997:III, p. 1085  
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 2 5 September  1997, as modified by Appellate 
Body Report WT/DS27/AB/R, DSR 1997:II, p. 943  
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 2 5 Septemb er 1997, as modified by Appellate Body Report 
WT/DS27/AB/R, DSR 1997:II, p. 803  
EC – Selected Customs 
Matters  Appellate Body Report, European  Communities  – Selected Customs 
Matters , WT/DS315/AB/R, adopted 1 1 December  2006, DSR 2006:IX, p. 
3791 
EC – Faste ners (China)  Appellate Body Report, European  Communities  – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R, 
adopted 2 8 July 2011, DSR 2011:VII, p. 3995  
EC – Hormones  Appellate Body Report, European  Communities  – Measures Concerning 
Meat and Meat Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, 
adopted 1 3 February  1998, DSR 1998:I, p. 135  
EC – Hormones (Canada)  Panel  Report , European  Communities  – Measures Concerning Meat and 
Meat Products (Hormones), Complaint by Canada , WT/DS48/R/CAN, 
adopted 1 3 February  1998, as modified by Appellate Body Report 
WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, p. 235  
EC – Hormones (US)  Panel  Report , European  Communit ies – Measures Concerning Meat and 
Meat Products (Hormones), Complaint by the United  States , 
WT/DS26/R/USA, adopted 1 3 February  1998, as modified by Appellate 
Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:III, p. 699  
EC – Seal Products  Appellate Body R eports, European  Communities  – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / 
WT/DS401/AB/R, adopted 1 8 June 2014, DSR 2014:I, p. 7  
EC – Bed Linen (Article  21.5 – 
India)  Appellate Body Report, European  Communities  – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of 
the DSU by India , WT/DS141/AB/RW, adopted 2 4 April 2003, 
DSR 2003:III, p. 965  
EC – Sardines  Appellate Body Report, European  Communities  – Trade  Description of 
Sardines , WT/DS231/AB/R, adopted 2 3 October  2002, DSR 2002:VIII, p. 
3359 
China – GOES  Panel  Report , China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United  States , WT/DS414/R 
and Add.1,  adopted 1 6 November  2012, upheld by Appellate Body Report 
WT/DS414/AB/R, DSR 2012:XII, p. 6369  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, adopted 2 2 February  2012, DSR 2012:VII, p. 3295  
China – Broiler Products  Panel  Report , China – Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United  States , WT/DS427/R and Add.1, adopted 
25 September  2013, DSR 2013:IV, p. 1041  WT/DS524/R  
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  Short title  Full case title and citation  
China – Publications and 
Audiovisual Products  Panel  Report , China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 1 9 January  2010, as modified by 
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties 
on High -Performance Stainless Steel Seamless Tubes ("HP -SSST") from 
Japan / China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from the 
European  Union , WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, 
adopted 2 8 October  2015 
Korea – Alcoholic Beverages  Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 1 7 February  1999, DSR 1999:I, 
p. 3 
Korea – Various Measures on 
Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, 
Chilled and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 
10 January  2001, DSR 2001:I, p. 5  
Korea – Commercial Vessels  Panel  Report , Korea – Measures Affecting Trade in Commercial Vessels , 
WT/DS273/R, adopted 1 1 April 2005, DSR 2005:VII, p. 27 49 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports 
of Certain Dairy Products , WT/DS98/AB/R, adopted 1 2 January  2000, 
DSR 2000:I, p. 3  
Korea – Radionuclides  Panel  Report , Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides , WT/DS495/R and Add.1, adopted 
26 April 2019, as modified by Appellate Body Report WT/DS495/AB/R, 
DSR 2019:VII, p. 3823  
Korea – Radionuclides  Appellate Body Report, Korea – Import Bans, and Testing and Certific ation 
Requirements for Radionuclides , WT/DS495/AB/R and Add.1, adopted 
26 April 2019, DSR 2019:VII, p. 3653  
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 1 9 December  2002, DSR 2002:IX, p. 
3779 
US – Hot-Rolled Steel  Appellate Body Report, United  States  – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Upland Cotton  Appellate Body Report, United  States  – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 2 1 March  2005, DSR 2005:I, p. 3  
US – Upland Cotton  Panel  Report , United  States  – Subsidies on Upland Cotton , WT/DS267/R, 
Add.1 to Add.3 and Corr.1, adopted 2 1 March  2005, as modified by 
Appellate Body Report WT/DS267/AB/R, DSR 2005:II, p. 299  
US – Upland Cotton 
(Article  21.5 – Brazil)  Appellate Body Report, United  States  – Subsidies on Upland Cotton – 
Recourse to Article  21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DSR 2008:III, p. 809  
US – Animals  Panel  Report , United  States  – Measures Affecting the Importation of 
Animals, Meat and Other Animal Produ cts from Argentina , WT/DS447/R 
and Add.1, adopted 3 1 August  2015, DSR 2015:VIII, p. 4085  
US – Poultry (China)  Panel  Report , United  States  – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R, adopted 2 5 October  2010, DSR 2010:V, 
p. 1909 
US – Shrimp  Appellate Body Report, United  States  – Import Prohibition of Certain 
Shrimp and Shrimp Products , WT/DS58/AB/R, adopted 6 November  1998, 
DSR 1998:VII, p. 2755  
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, p. 323  
US – Wool Shirts and Blouses  Panel  Report , United  States  – Measure Affecting Imports of Woven Wool 
Shirts and Blous es from India , WT/DS33/R, adopted 2 3 May 1997, upheld 
by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343  WT/DS524/R  
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  Short title  Full case title and citation  
US – Continued Zeroing  Appellate Body Report, United  States  – Continued Existence and 
Application of Zeroing Methodology , WT/DS350/AB/R, adopte d 
19 February  2009, DSR 2009:III, p. 1291  
US – COOL  Appellate Body Reports, United  States  – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 
23 July 2012, DSR 2012:V, p. 2449  
US – COOL  Panel  Report s, United  States  – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, adopted 2 3 July 2012, as 
modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, 
DSR 2012:VI, p. 2745  
US – FSC (Article  21.5 – EC) Appellate Body Report, United  States  – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article  21.5 of the DSU by the 
European  Communities , WT/DS108/AB/RW, adopted 2 9 January  2002, 
DSR 2002:I, p. 55  
US – Corrosion -Resistant 
Steel Sunset Revie w Appellate Body Report, United  States  – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January  2004, DSR 2004:I, p. 3  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United  States  – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 1 7 December  2004, DSR 2004:VII, p. 3257  
US – Gasoline  Appellate Body Report, United  States  – Standards for R eformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 2 0 May 1996, DSR 1996:I, 
p. 3 
US – Gambling  Appellate Body Report, United  States  – Measures Affecting the 
Cross -Border Supply of Gambling and Betting Services , WT/DS285/AB/R, 
adopted 2 0 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, 
p. 5475)  
US – Export Restraints  Panel  Report , United  States  – Measures Treating Exports Restraints as 
Subsidies , WT/DS194/R and Corr.2, adopted 2 3 August  2001, 
DSR 2001:XI, p. 5767  
US – Continued Suspension  Panel  Report , United  States  – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS320/R and Add.1 to Add.7, adopted 
14 November  2008, as modified by Appellate Body Report 
WT/DS320/AB/R, DSR 2008:XI, p. 3891  
US – Continued Suspension  Appellate Body Report, United  States  – Continued Suspension of 
Obligations in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 
14 November  2008, DSR 2008:X, p. 3507  
US – Zeroing (EC) 
(Article  21.5 – EC) Appellate Body Report, United  States  – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article  21.5 of 
the DSU by the European  Communities , WT/DS294/AB/RW and Corr.1, 
adopted 1 1 June 2009, DSR 2009:VII, p. 2911  
US – Underwear  Panel  Report , United  States  – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/R, adopted 2 5 February  1997, as 
modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31  
India – Agricultural Products  Appellate Body Report, India – Measures Concerning the Importation of 
Certain Agricultural Products , WT/DS430/AB/R, adopted 1 9 June 2015, 
DSR 2015:V, p. 2459  
India – Agricultural Products  Panel  Report , India – Measures Concerning the Importation of Certa in 
Agricultural Products , WT/DS430/R and Add.1, adopted 1 9 June 2015, as 
modified by Appellate Body Report WT/DS430/AB/R, DSR 2015:V, p. 2663  
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R, WT/DS 55/R, WT/DS59/R, WT/DS64/R, Corr.1 and 
Corr.2, adopted 2 3 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 
2201 
Indonesia – Chicken  Panel  Report , Indonesia – Measures Concerning the Importation of Chicken 
Meat and Chicken Products , WT/DS484/R and Add.1, adopted 
22 November  2017, DSR 2017:VIII, p. 3769  
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, p. 97  WT/DS524/R  
- 15 - 
  Short title  Full case title and citation  
Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R, adopted 1 0 December  2003, DSR 2003:IX, p. 
4391 
Japan – Apples  Panel  Report , Japan – Measures Affecting the Importation of Apples , 
WT/DS245/R, adopted 1 0 December  2003, upheld by Appellate Body 
Report WT/DS245/AB/R, DSR 2003:IX, p. 4481  
Japan – Apples (Article  21.5 – 
US) Panel  Report , Japan – Measures Affecting the Importation of Apples – 
Recourse to Article  21.5 of the DSU by the United  States , WT/DS245/RW, 
adopted  20 July 2005, DSR 2005:XVI, p. 7911  
Japan – Agricultural Products 
II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 1 9 March  1999, DSR 1999:I, p. 277  
Japan – Agricultural Products 
II Panel  Report , Japan – Measures Affecting Agricultural Products , 
WT/DS76/R, adopted 1 9 March  1999, as modified by Appellate Body 
Report WT/DS76/AB/R, DSR 1999:I, p. 315  
Russia – Railway Equipment  Appellate Body Report, Russia – Measures Affecting the Importation of 
Railway Equipment and Parts Thereof , WT/DS499/AB/R and Add.1, 
adopted 5 March  2020 
Russia – Pigs (EU)  Panel  Report , Russian  Federation  – Measures on the Importation of Live 
Pigs, Pork and Other Pig Products from the European  Union , WT/DS475/R 
and Add.1, adopt ed 21 March  2017, as modified by Appellate Body Report 
WT/DS475/AB/R, DSR 2017:II, p. 361  
Russia – Pigs (EU)  Appellate Body Report, Russian  Federation  – Measures on the Importation 
of Live Pigs, Pork and Other Pig Products from the European  Union , 
WT/DS475/AB/R and Add.1, adopted 2 1 March  2017, DSR 2017:I, p. 207  
EU – PET (Pakistan)  Appellate Body Report, European  Union  – Countervailing Measures on 
Certain Polyethylene Terephthalate from Pakistan , WT/DS486/AB/R and 
Add.1, adopted 2 8 May 2018, DSR 2018:IV, p. 1615  
 
  WT/DS524/R  
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  EXHIBITS  FREQUENTLY CITED  IN THIS REPORT  
Exhibit  Short title  Title 
CRI-1 MAG, IICA, National Avocado 
Production Plan (2019)  Ministerio de Agricultura y Ganadería (MAG) de Costa Rica e 
Instituto Interamericano de Cooperación para la Agricultura 
(IICA), Representación Costa Rica, "Plan Nacional de 
Fortalecimiento del Sector Aguacatero", 26 de junio de 2019  
CRI-2 "El cultivo de palta o aguacate", 
Agrotendencia.tv  (2018)  "El cultivo de palta o aguacate", Agrotendencia.tv  (2018)  
CRI-3 INTAGRI, Grafting Avocado  
(2018)  Instituto para la Innovación Tecnológica en Agricultura 
(INTAGRI), Injerto en Aguacate, Artículos Técnicos de 
INTAGRI , Serie Frutales, No. 44 (2018)  
CRI-8 Ncango et al.  (2014)  D. Ncango, Z . Dlamini and N . Zulu, "An overview of avocado 
sunblotch viroid disease in South  Africa  from 2008 to 2013", 
South  Africa n Avocado Growers ' Association Yearbook , Vol. 
37 (2014)  
CRI-9 Coit (1928)  J.E. Coit, "Sun -Blotch of the Avocado, A Serious Physiological 
Disease", California Avocado Society 1928 Yearbook , Vol. 12 
(1928)  
CRI-10 Cambrón Crisantos (2011)  J.M. Cambrón Crisantos, "Similitud genética del viroide de la 
mancha del sol del aguacate en Michoacán, México", tesis 
presentada como requisito para obtener el grado de maestro 
en ciencias, Colegio  de Postgraduados (COLPOS) Institución 
de Enseñanza e Investigación en Ciencias Agrícolas (2011)  
CRI-12/ 
CRI-86 Document LAB -LDP-BM-PT-06 
(2017)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Detección molecular del Avocado 
sunblotch viroid (ASBVd)", LAB -LDP-BM-PT-06, que rige a 
partir del 27 de marzo de 2017  
CRI-13 SINAVEF, Update of the inventory 
list (2010)  Sistema Nacional de Vigilancia Epidemiológica Fitosanitaria 
(SINAVEF), Actualizació n de lista de inventario, Informe 2010 
(2010)  
CRI-14 CABI (2019)  Centro de Biociencia Agrícola Internacional ( CABI), Crop 
Protection Compendium, Datasheet report for Avocado 
sunblotch viroid (avocado sun blotch), 12 de septiembre de 
2019  
CRI-15 Memorandum CIBCM -501-2019 
(2019)  Centro de Investigaciones en Biología Celular y Molecular de 
la Universidad de Costa Rica, Oficio CIBCM -501-2019, 9 de 
septiembre de 2019  
CRI-16 Memorandum CIBCM -167-2017 
(2017)  Centro de Investigaciones en Biología Celular y Molecular de 
la Universidad de Costa Rica, Oficio CIBCM -167-2017, 17 de 
marzo de 2017  
CRI-17 Summary 2014 -2019 s ampling 
surveys  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Informe de vigilancia para la 
determinación de la ausencia del ASBVd en las plantaciones 
de aguacate en Costa Rica", Oficio DOR -RN-0001-2019, 23 
de septiembre de 2019  
CRI-18 Obregón rebuttal (2015)  Servicio Fitosanitario del Estado del Ministerio de Agricultura y 
Ganadería de Costa Rica, Oficio DSFE.1023.2015, 18 de 
diciembre de 2015  
CRI-19 Final report (1) on 2017-2018 
sampling survey  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Informe final sobre muestreo 
2017-2018" (1), Oficio LDP -002-18, 15 de enero de 2018  
CRI-20 Final report (2) on 2017-2018 
sampling survey  Servicio  Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Informe final sobre muestreo 
2017-2018" (2), Oficio LDP -014-18, 22 de febrero de 2018  
CRI-21 Final report on  2019 sampling 
survey  Servicio Fitosanitario del Estado del Mi nisterio de Agricultura 
y Ganadería de Costa Rica, "Informe final sobre muestreo de 
2019", Oficio LDP -RAM-0003-2019, 24 de junio de 2019  
CRI-25 MAF, New  Zealand 's requirements 
(1998)  Ministry of Agriculture and Forestry (MAF) (actualmente 
Ministry for Primary Industries), Import Health Standard 
Commodity Sub -class: Fresh Fruit/Vegetables Avocado, 
Persea americana  from Australia (3 de junio de 1998)  
CRI-27 Everett and Siebert (2018)  K.R. Everett and B . Siebert, "Exotic plant disease threats  to 
the New  Zealand  avocado industry and climatic suitability : A 
Review", New Zealand  Plant Protection , Vol. 71 (2018), 
páginas 25 -38 
CRI-28 Ministry of Health of Costa Rica, 
Waste Management (2011)  Ministerio de Salud de Costa Rica, Política Nacional para la 
Gestión Integral de Residuos 2010 -2021, 1.a ed. (2011)  WT/DS524/R  
- 17 - 
  Exhibit  Short title  Title 
CRI-29 Climatic regions and subregions of 
Costa Rica  Instituto Meteorológico Nacional Gestión de Desarrollo de 
Costa Rica, "Regiones y subregiones climáticas de Costa 
Rica" 
CRI-30 Nursery regulations (2007)  Presidente de la República y Ministro de Agricultura y 
Ganadería, Reglamento de Viveros, Almácigos, Semilleros y 
Bancos de Yemas Nº 33927, 2 de julio de 2007  
CRI-33 Technical standards for seeds 
(2017)  Oficina Nacional de Semil las de Costa Rica, "Normas Técnicas 
para la Certificación de Semillas, Yemas y Plantas de vivero 
de Aguacate (Persea americana Mill.)", aprobado el 17 de 
octubre 2017  
CRI-34 Draft decree governing the use of 
avocado seeds (2019)  Presidente de la República  y Ministro de Agricultura y 
Ganadería de Costa Rica, "Proyecto de Decreto para 'Regular 
el uso de semilla de aguacate (Persea americana Mill.) para 
propagación, extraídas de frutos importados para consumo, 
de países con presencia de Avocado sunblotch viro id 
(ASBVd)'", 13 de septiembre de 2019  
CRI-37 SFE, Phytosanitary requirements,  
NR-ARP-GT05 (Peru) (2012)  Servicio Fitosanitario del Estado (SFE), Unidad de Análisis de 
Riesgo de Plagas, Guía Técnica ARP 05, "Requisitos 
fitosanitarios para la importación de frutas, hortalizas, raíces, 
bulbos y tubérculos para consumo fresco o para la industria", 
NR-ARP-GT05 (Perú) (2012)  
CRI-41/ 
MEX-208 EPPO Costa Rica (2019)  EPPO, Global Database, Avocado sunblotch viroid (ASBVD0) 
Distribution details in Cost a Rica, 21 de septiembre de 2019  
CRI-43 Manual for Nurseries (2017)  Ministerio de Agricultura y Ganadería de Costa Rica, "Manual 
para el Establecimiento y Manejo de un Vivero de Aguacate 
(Persea americana Mill.)", aprobado el 22 de mayo de 2017  
CRI-44 Cultural practices in sowing and 
managing avocado seeds in Costa 
Rica (2019)  Centro de Investigación en Cultura y Desarrollo, Universidad 
Estatal a Distancia de Costa Rica, "Prácticas culturales de 
siembra y manejo de semillas de aguacate en Costa Rica"  
informe de investigación, 10 de octubre de 2019  
CRI-45 Affidavit of Juan Gamboa Robles 
(2019)  Declaración Jurada de Juan Gamboa Robles, 23 de 
septiembre de 2019  
CRI-46 Affidavit of Francisco Fallas 
Serrano (2019)  Declaración Jurada de Francisco Fallas Serrano, 23 de 
septiembre de 2019  
CRI-47 Affidavit of Francisco Cordero 
Navarro (2019)  Declaración Jurada de Francisco Cordero Navarro, 23 de 
septiembre de 2019  
CRI-48 Affidavit of Daniel Ureña Zumbado 
(2019)  Declaración Jurada de Daniel Ureña Zum bado, 23 de 
septiembre de 2019  
CRI-49 Affidavit of Francisco Elizondo 
Ureña (2019)  Declaración Jurada de Francisco Elizondo Ureña, 23 de 
septiembre de 2019  
CRI-53/
MEX-174 Regulation governing the use of 
avocado seeds  (2019)  Decreto Nº 41995 -MAG del Segu ndo Vicepresidente en el 
ejercicio de la presidencia de la República y el Ministro de 
Agricultura y Ganadería, "Reglamento para regular el uso de 
semilla de aguacate (Persea americana Mill.) para 
propagación, extraídas de frutos frescos importados para 
consumo, de países con presencia de avocado sunblotch 
viroid (ASBVd ) ", del 23 de septiembre de 2019, publicado en 
La Gaceta Nº 196, de 16 de octubre de 2019  
CRI-54 SFE, Phytosanitary requirements, 
NR-ARP-GT05 (US) (2012)  SFE, Requisitos fitosanitarios,  NR-ARP-GT05 (Perú) (2012), 
prueba documental CRI -37; y Servicio Fitosanitario del 
Estado (SFE), Unidad de Análisis de Riesgo de Plagas, Guía 
Técnica ARP 05, "Requisitos fitosanitarios para la importación 
de frutas, hortalizas, raíces, bulbos y tubérculos para 
consumo fresco o para la industria", NR -ARP-GT05 (Estados 
Unidos) (2012)  
CRI-56 "Recomendaciones para cultivar 
aguacate Hass", La Tribuna  
(2017)  C. Landa, "Recomendaciones para cultivar aguacate Hass", 
La Tribuna  (16 de di ciembre de 2017)  
CRI-58 "Agronomists rescue the best 
varieties of criollo avocado", 
ucr.ac.cr  (2019)  O'Neal Katzy Coto, "Agronomists rescue the best varieties of 
criollo avocado", ucr.ac.cr  (29 de mayo de 2019)  
CRI-63 INEC, Crops  (2015)  Instituto Nacional de Estadísticas y Censo (INEC) de  
Costa Rica, VI Censo Agropecuario, "Cultivos agrícolas, 
forestales y ornamentales", San José, Costa Rica, julio 2015  
CRI-64 INEC, Agricultural statistical a tlas 
(2015)  Instituto Nacional de Estadísticas y Censo (INEC) de  
Costa Rica, VI Censo Agropecuario, "Atlas estadístico 
agropecuario", noviembre 2015  
CRI-65 Ben-Ya'acov and Michelson (1995)  A. Ben-Ya'acov and E . Michelson, "Avocado rootstocks", 
Horticultural Reviews , Vol. 17 (1995)  WT/DS524/R  
- 18 - 
  Exhibit  Short title  Title 
CRI-69 OR-HN-049-2019 (2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento de Operaciones 
Regionales, Unidad Operativa Regional Huetar Norte, 
OR-HN-049-2019, 20 de noviembre de 2019  
CRI-70 OR-BR-FUN-0014-2019 (2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Dep artamento de Operaciones 
Regionales, Unidad Regional Brunca, OR -BR-FUN-0014-2019, 
20 de noviembre de 2019  
CRI-71 OR-CS-0003-2019 (2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento de Operaciones 
Regionales, Región Central Sur, OR -CS-0003-2019, 21 de 
noviembre de 2019  
CRI-72 OR-PC-034-2019 (2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento de Operaciones 
Regionales, Operaciones Regionales Pacífico Central, 
OR-PC-034-2019, 20 de noviembre de 2019  
CRI-73 URCOR -CO-154/2019 (2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento de Operaciones 
Regionales, Unidad Operativa Central Oriental, 
URCOR -CO-154/2019, 20 de noviembre de 2019  
CRI-74 UCR, "The Criollo Avocado"  Universidad de Costa Rica (UCR), Ministerio de Agricultura y 
Ganadería (MAG), Comisión Asesora sobre Degradación de 
Tierras (CADETI), Minister io de Ambiente y Energía 
(MINAE),"El Aguacate Criollo"  
CRI-82 Document OR -RN-PO-03 (2018)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Procedimiento de toma de 
muestras de plagas en vegetales en el campo para  
diagnóstico", OR -RN-PO-03, 13 de febrero 2018  
CRI-83 ASBVd surveys in Costa Rica 
(2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Prospección del viroide 
SunBlotch (ASBVd) en el cultivo de aguacate" (2019)  
CRI-84 Map sampling surveys 2014 -2019 Servicio Fitosanitario del Estado del Ministerio  de Agricultura 
y Ganadería de Costa Rica, Unidad de Biometría y Sistemas 
de Información Geográfica, "Fincas muestreadas para 
determinar la presencia o ausencia del ASBVd", 2014 -2019 
CRI-85 Memorandum OR -BSG-004/2019 
(2019)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento Operaciones 
Regionales, Unidad de Biometría y Sistemas de Información 
Geográfica, Borbón Martínez, OR -BSG-004/2019, 26 de 
noviembre 2019  
CRI-87 Backyard sampli ng survey (2019)  Servicio Fitosanitario del Estad del Ministerio de Agricultura y 
Ganadería de Costa Rica, Unidad de Control de Residuos, 
Departamento de Operaciones Regionales, 
DOR-DOR-RN-081-2019; y Unidad de Biometría y Sistemas 
de Información Geográfic a, "Mapa con la ubicación de 
muestreo de aguacate en traspatios, para determinar la 
presencia o ausencia del ASBVd, 2015 -2019", de 28 de 
noviembre de 2019  
CRI-88 Document OR -RN-PO-01 (2018)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Procedimiento de Vigilancia y 
Control de Plagas Reglamentadas", OR -RN-PO-01, 12 de 
octubre 2018  
CRI-90 Document PCCI -GC-PO-01 (2018)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Procedimiento para el Control de 
Documentos y Registros", PCCI -GC-PO-01, 29 de noviembre 
2018  
CRI-91 Document CFI -PO-16 (2018)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, "Procedimiento para el muestr eo 
de aguacate fruta con el fin de verificar la ausencia o 
presencia de la plaga 'Avocado Sunblotch viroide' (Mancha de 
Sol)", CFI -PO-16, 6 de febrero 2018  
CRI-101 Desjardins (1987)  P.R. Desjardins, "Avocado Sunblotch", en T.O . Diener (ed.), 
The Viroids  (Plenum Press : New York, 1987)  
CRI-102 CABI, Datasheet report for ASBVd  CABI, Crop Protection Compendium : Datasheet report for 
Avocado sunblotch viroid  
CRI-105 New Manual, NR -ARP-M-01 Servicio Fitosanitario del Estado del Ministerio de Agricultur a 
y Ganadería de Costa Rica, "Manual para la elaboración de 
análisis cualitativo de riesgo de plagas", NR -ARP-M-01, 
aprobado el 16 de marzo de 2018  WT/DS524/R  
- 19 - 
  Exhibit  Short title  Title 
CRI-115 Dale and Allen (1979)  J.L. Dale and R.N . Allen, "Avocado affected by sunblotch 
disease contains low molecular weight ribonucleic acid", 
Australasian Plant Pathology , Vol. 8 (1979)  
CRI-116 Desjardins et al. (1980)  P.R. Desjardins, R.J . Drake and S.A . Swiecki, "Infectivity 
studies of avocado sunblo tch disease causal agent, possibly a 
viroid rather than a virus", Plant Disease , Vol. 64 (1980)  
CRI-117 Dorantes et al. (2004)  L. Dorantes, L . Parada and A . Ortiz, "Avocado Post Harvest 
Operations", INPhO – Post-harvest Compendium, Food and 
Agriculture Organization (FAO) (2004)  
CRI-121 Hadidi et al. (2003)  A. Hadidi, R . Flores, J.W . Randles and J.S . Semancik,  Viroids  
(CSIRO Publishing : Melbourne, Australia, 2003)  
CRI-122 Holdridge (1982)  L.R. Holdridge, Ecología basada en zonas de vida , Instituto 
Interamericano de Cooperación para la Agricultura, San José, 
Costa Rica (1982)  
CRI-123 Horne and Parker (1931)  WM.T . Horne and E.R . Parker, " The Avocado disease called 
sunblotch", Phytopathology , Vol. 21 (1931)  
CRI-125 Mohamed and Thomas (1980)  N.A. Mohamed and W . Thomas, "Viroid -like Properties of an 
RNA Species Associated with Sunblotch Disease of 
Avocados", Journal of General Virology , Vol. 46, No. 1 (1980)  
CRI-126 Morton (1987)  J.F. Morton, "Avocado", in J.F . Morton (ed.), Fruits of warm 
climates  (Miami, Florida, 1987)  
CRI-128 Ochoa Ascencio (2013)  S. Ochoa Ascencio, "Sunblotch o Mancha del Sol del 
Aguacate", Facultad de Agrobiología "Presidente Juárez", 
Universidad de San Nicolás de Hidalgo (UMSNH), Uruapan, 
Michoacán, México (2013)  
CRI-131 Schnell et al. (2001)  R.J. Schnell, D.N . Kuhn, C.T . Olano and W.E . Quintanilla, 
"Sequence diversity among avocado sunblotch viroids 
isolated from single avocado trees", Phytoparasitica , Vol. 29 
(2001)  
CRI-135 Storey et al. (1986)  W.B. Storey, B . Bergh and G.A . Zentmyer, "The origin, 
indigenous range, and dissemination of the avocado", 
California Avocado Society Yearbook , Vol. 70 (1986)  
CRI-136 Suarez et al. (2005)  I.E. Suarez, R.A . Schnell, D.N . Kuhn and R.E . Lits, 
"Micrografting of ASBVd -infected Avocado ( Persea 
americana ) plants", Plant Cell Tissue and Organ Culture , Vol. 
80 (2005)  
CRI-137 Vargas et al. (1991)  C.O. Vargas, M . Querci y L.F . Salazar, "Identificación y 
estado de diseminación del viroide del manchado solar del 
palto ( Persea americana  L.) en el Perú y la existencia de 
otros viroides en palto", Fitopatología , Vol. 26, No. 1 (1991)  
CRI-138 Horne (1934)  W.T. Horne, "Avocado Diseases  in California", University  of 
California,  Berkeley Bulletin , Vol. 585 (1934)  
CRI-139 Rondón and Figueroa (1976)  A. Rondón y M . Figueroa, "Mancha de sol (Sun blotch) de los 
aguacates ( Persea americana ) en Venezuela", Agronomía 
Tropical , Vol. 26, No. 5 (1976)  
CRI-140 SFE, Avocado imports statistics 
2015-2017 (2019)  Servicio Fitosanitario del Estado (SFE), Estadísticas de 
importación de aguacate 2015 -2017 (2019)  
CRI-146 Document VCP -VI-PO-02 (2011)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Departamento de Vigilancia y 
Control de Plagas, "Vigilancia y control de plagas 
Cuarentenarias Reglamentadas (PCR)", VCP -VI-PO-02, 9 de 
agosto 2011  
CRI-149 Forms OR -RN-F-03 and 
OR-RN-F-04, completed  Boletas de ubicación de establecimientos o sitios de 
producción y boletas de seguimiento de plagas en 
establecimientos o sitios de producción rellenadas  
CRI-150 Forms OR -RN-F-01, completed 
(2017 -2018)  Servicio Fitosanitario del Estado del Ministerio de A gricultura 
y Ganadería de Costa Rica, Formularios para el manejo y 
transporte de muestras para diagnósticos de plagas y análisis 
de residuos de plaguicidas, OR -RN-F-01, 2017 -2018  
CRI-151 SFE, Calculation of s amples 
(2021)  Servicio Fitosanitario del Estado de Costa Rica (SFE), Unidad 
de biometría y sistemas de información, Cálculo de muestras 
(2021)  
CRI-152 Document LAB -LDP-BM-PO-09 
(2016)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa  Rica, Laboratorio de Diagnóstico de 
Plagas, "Aseguramiento de calidad de métodos de 
diagnóstico molecular", LAB -LDP-BM-PO-09, 22 de diciembre 
2016  WT/DS524/R  
- 20 - 
  Exhibit  Short title  Title 
CRI-153 Regulation No.  26921 -MAG Presidente de la República y Ministro de Agricultura y 
Ganadería de Costa Rica, Reglamento a la Ley de Protección 
Fitosanitaria, No.  26921 -MAG 
CRI-154 Document LAB -LDP-BM-PO-02 
(2015)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Laboratorio Central de 
Diagnóstico de Plagas, "Prácticas generales de trabajo en el 
laboratorio de Biología Molecular", LAB -LDP-BM-PO-02, 21 de 
agosto 2015  
CRI-155 Document LAB -LDP-BM-PO-07 
(2016)  Servicio Fitosanitario del Estado del Ministerio de Agricultura 
y Ganadería de Costa Rica, Labor atorio de Diagnóstico de 
Plagas, "Resuspensión de imprimadores/sondas y control 
general de alícuotas", LAB -LDP-BM-PO-07, 15 de febrero 
2016 
MEX-1 Resolution DSFE -03-2015 Servicio Fitosanitario del Estado de Costa Rica, Dirección 
Ejecutiva, Resolución DSFE -03-2015 
MEX-3 Resolution DSFE -11-2015 Servicio Fitosanitario del Estado de Costa Rica, Dirección 
Ejecutiva, Resolución DSFE -11-2015 
MEX-4 Resolution DSFE -003-2018 Servicio Fitosanitario del Estado de Costa Rica, Dirección 
Ejecutiva, Resolución DSFE -003-2018 
MEX-21 Pérez Santiago (2008)  A. Pérez Santiago, "Generalidades del cultivo de aguacate 
(Persea americana )" (2008)  
MEX-22 Galindo Tovar et al. (2008)  M.E. Galindo Tovar, N . Ogata Aguilar and A.M . Arzate 
Fernández, "Some aspects of avocado ( Persea americana  
Mill.) diversity and domestication in Mesoamerica", Genetic 
Resources and Crop Evolution , Vol. 55 (Springer, 2008)  
MEX-23 DGIB, Monogra ph of Mexico's 
avocado sector (2012)  México, Secretaría de Economía, Dirección General de 
Industrias Básicas (DGIB), Monografía del Sector Aguacate 
en México : Situación Actual y Oportunidades de Mercado 
(2012)  
MEX-24 SFA, Crops  monograph  (2011)  México, Secretaría de Economía, Subsecretaría de Fomentos 
a los Agronegocios (SFA), Monografía de cultivos  
MEX-26 Sánchez Pérez (1999)  J. Sánchez Pérez, "Recursos Genéticos de Aguacate ( Persea 
Americana  Mill.) y especies afines en México", Revista 
chapingo  (Serie Horticultura) , Vol. 5, Número Especial (1999)  
MEX-27 Morales García et al.  (2013)  J.L. Morales García, M.R . Mendoza López, V.M . Coria Avalos, 
J.L. Aguirre Montañez, J. de la Luz Sánchez Pérez, J.A . 
Vidales Fernández, L.M . Tapia Vargas, G . Hernández Ruíz y 
J.J. Alcántar Rocillo , "Tecnología -Produce Aguacate en 
Michoacán", Vol. 1 (2013)  
MEX-31/
CRI-4 Campos Rojas et al. (2012)  E. Campos Rojas, J . Ayala Arreola, J . Andrés Agustín y M. de 
la Cruz Espíndola Barquera, "Propagación de Aguacate", 
SAGARPA -SINAREFI -UACh . México (2012)  
MEX-35 Ellis (1991)  R.H. Ellis, "The longevity of seeds", Horticultural Science, Vol. 
26, No. 9 (1991), páginas 1119 -1125 
MEX-42 Whitsell (1952)  R. Whitsell, "Sun -blotch disease of avocados", California 
Avocado Society Yearbook  (1952)  
MEX-43 Geering (2018)  A.D.W . Geering, "A review of the status of Avocado sunblotch 
viroid in Australia", Australasian Plant Pathology, Vol. 47, 
No. 6 (2018), páginas 555 -559  
MEX-45 Saucedo Carabez et al. (2014)  J.R. Saucedo Carabez, D . Téliz Ortiz, S . Ochoa Ascencio, D . 
Ochoa Martínez, M.R . Vallejo Pérez and H . Beltrán Peña, 
"Effect of Avocado sunblotch viroid (ASBVd) on avocado yield 
in Michoacán, México", European Journal of Plant Pathology , 
Vol. 138 (Springer, 2014)  
MEX-46 Semancik (2003)  J.S. Semancik, "Avocado sunblotch viroid" en A . Hadidi, R . 
Flores, J.W . Randles and J.S . Semancik (eds.) Viroids  (CSIRO 
Publishing : Melbourne, Australia, 2003)  
MEX-47 Vallejo Pérez et al. (2017)  M.R. Vallejo Pérez D.  Téliz Ortiz, R. de la Torre Almaraz, J.O . 
López Mart ínez and D . Nieto Ángel, "Avocado sunblotch 
viroid : Pest risk and potential impact in México", Crop 
Protection , Vol. 99 (Elsevier, 2017)  
MEX-48 EPPO Global Database, World 
distribution (2019)  Organización Europea y Mediterránea de Protección de las 
Plantas ( EPPO) Global Database, Avocado sunblotch viroid 
(ASBVD0) World distribution (2019)  
MEX-50 Singh et al. (2003)  R.P. Singh, K.F.M . Ready and X . Nie, "Biology", en A . Hadidi, 
R. Flores, J.W . Randles and J.S Semancik (eds.),  Viroids  
(CSIRO Publishing : Melbourne, Australia, 2003), páginas 
30-48  WT/DS524/R  
- 21 - 
  Exhibit  Short title  Title 
MEX-51 Campos et al. (2011)  R.E. Campos, U.E . SantaCruz, G.J.M . Rivera y M.J.A . Florez, 
"Distinción de los síntomas del viroide del aguacate 'Rayito 
de Sol' y su manejo en Michoacán, México", Actas VII 
Congreso Mundial del Aguacate  (Australia, 2011)  
MEX-52 Semancik and Szychowski (1994)  J.S. Semancik and J.A . Szychowski, "Avocado sunb lotch 
disease : a persistent viroid infection in which variants are 
associated with differential symptoms",  Journal of General 
Virology , Vol. 75 (1994)  
MEX-54 LaNGIF, ASBVd Epidemiol ogical 
Analysis (2009)  Laboratorio Nacional de Geoprocesamiento de Información 
Fitosanitaria (LaNGIF), "Análisis Epidemiológico de la mancha 
de sol de aguacate – Avocado Sun Blotch Viroid (ASBVd)"  
MEX-56
  Ploetz et al.  (2011)  R.C. Ploetz, E . Dann, K . Pegg, A . Eskalen, S . Ochoa and A . 
Campbell, "Pathog en exclusion : Options and 
implementation", Actas VII Congreso Mundial del Aguacate  
(Australia, 2011)  
MEX-59 SENASICA, Datasheet  Servicio Nacional de Sanidad, Inocuidad y Calidad 
Agroalimentaria (SENASICA), Ficha Técnica -Avocado 
sunblotch viroid  
MEX-60 Desjardins et al. (1979)  P.R. Desjardins, R.J . Drake, E.L . Atkins and B.O . Bergh, 
"Pollen transmission of avocado sunblotch virus 
experimentally demonstrated", California Agriculture , Vol. 33, 
No. 11 (1979)  
MEX-61 Picado Salmerón, Fresh fruit PRA 
(2015)  J.C. Picado Salmerón, "Evaluación del Riesgo presentado por 
frutos frescos de aguacate (palta) procedente de México y 
destinados a Costa Rica como vía de ingreso para ASBVd", 
julio de 2015  
MEX-63 Beltrán Peña (2013)  H. Beltrán Peña, "El viroide de la mancha de sol del aguacate 
en Michoacán : Detección y manejo", tesis doctoral, Colegio 
de Postgraduados (COLPOS) Institución de Enseñanza e 
Investigación en Ciencias Agrícolas, marzo de 2013  
MEX-64 Sampling survey 2014  O. Borbón Martínez, Dep artamento de Operaciones 
Regionales del Servicio Fitosanitario del Estado del Ministerio 
de Agricultura y Ganadería de Costa Rica, "Muestreo del 
viroide manchado solar (ASBVd)(Sunblotch) en el cultivo de 
aguacate (Persea americana), a nivel nacional, 2014"   
MEX-65 Sampling survey 2015 -2016 O. Borbón Martínez, Departamento de Operaciones 
Regionales del Servicio Fitosanitario del Estado del Ministerio 
de Agricultura y Ganadería de Costa Rica, "Muestreo del 
viroide manchado solar (ASBVd) (Sunblotch) en el cul tivo de 
aguacate ( Persea Americana ), Región central oriental, 
diciembre 2015 y enero 2016"  
MEX-66 Mühlbach et al. (2003)  H-P. Mühlbach, U . Weber, G . Gómez, V . Pallás, N.Duran -Vila 
and A . Hadidi, "Molecular Hybridization", en A . Hadidi, R . 
Flores, J.W . Randles and J.S . Semancik (eds.),  Viroids  
(CSIRO Publishing : Melbourne, Australia, 2003)  
MEX-68 Schnell et al. (1997)  R.J. Schnell, D.N . Kuhn, C.M . Ronning and D.  Harkins, 
"Application of RT -PCR for indexing avocado sunblotch 
viroid", Plant Disease , Vol. 81, No. 9 (1997)   
MEX-69 Luttig and Manicom (1999)  M. Luttig and B.Q . Manicom, "Application of a Highly 
Sensitive Avocado Sunblotch Viroid Indexing Method", 
South  Africa n Avocado Growers' Ass ociation Yearbook 1999 , 
Vol. 22 (1999)  
MEX-70 De la Torre et al. (2009)  R. de la Torre Almaráz, D . Téliz Ortiz, V . Pallás and J.A . 
Sánchez Navarro, "First Report of Avocado sunblotch viroid  in 
Avocados from Michoacán, México", Plant Disease , Vol. 93, 
No. 2 (2009)  
MEX-71 ISPM No. 1 Secretaría de la CIPF, Principios fitosanitarios para la 
protección de las plantas y la aplicación de medidas 
fitosanitarias en el comercio internacional , NIMF No . 1 
(Roma, FAO en nombre de la Secretaría de la CIPF, adoptada 
en 2006, publicada en 2016)  
MEX-72 ISPM No. 2 Secretaría de la CIPF, Marco para el análisis de riesgo de 
plagas , NIMF No. 2 (Roma, FAO en nombre de la Secretaría 
de la CIPF, adoptada en 2007, publicada en 2016)  
MEX-73 ISPM No. 4 Secretaría de la CIPF, Requisitos para el establecimiento de 
áreas libres de plagas , NIMF No. 4 (Roma, FAO en nombre de 
la Secretaría de la CIPF, adoptada en 1995, publicada en 
2017)  WT/DS524/R  
- 22 - 
  Exhibit  Short title  Title 
MEX-74 ISPM No. 5 Secretaría  de la CIPF, Glosario de términos fitosanitarios , 
NIMF No. 5 (Roma, FAO en nombre de la Secretaría de la 
CIPF, adoptada en 2018, publicada en 2019)  
MEX-75 ISPM No. 6 Secretaría de la CIPF, Directrices para la vigilancia , NIMF 
No. 6 (Roma, FAO en nombre de  la Secretaría de la CIPF, 
adoptada en 1997, publicada en 2016)  
MEX-76 ISPM No. 8 Secretaría de la CIPF, Determinación de la situación de una 
plaga en un área , NIMF No. 8 (Roma, FAO en nombre de la 
Secretaría de la CIPF, adoptada en 1996, publicada en 2017)  
MEX-77 ISPM No. 11 Secretaría de la CIPF, Análisis de riesgo de plagas para 
plagas cuarentenarias , NIMF No. 11 (Roma, FAO en nombre 
de la Secretaría de la CIPF, adoptada en 2013, publicada en 
2017)  
MEX-78 ISPM No. 32 Secretaría de la CIPF, Categorización de productos según su 
riesgo de plagas, NIMF No. 32 (Roma, FAO en nombre de la 
Secretaría de la CIPF, adoptada en 2009, publicada en 2016)  
MEX-84 ARP-002-2017 Servicio Fitosanitario del Estado de Costa Rica, Unidad de  
Análisis de Riesgo de Plagas, "Análisis de Riesgo de Plagas 
iniciado por la revisión de una política para la importación de 
frutos frescos de aguacate ( Persea americana  Mill.) para 
consumo, originarios de México" (2017)   
MEX-85 ARP-006-2016 Servicio Fitosanitario del Estado de Costa Rica, Unidad de 
Análisis de Riesgo de Plagas, "Análisis de Riesgo de Plagas 
por plaga para Avocado Sunblotch Viroid  (ASBVd), para 
frutos frescos de aguacate para consumo ( Persea americana  
Mill.) y plantas para pla ntar de aguacate ( Persea americana  
Mill.)" (2017)  
MEX-90 "Crecex: Nunca se debió prohibir 
la importación del aguacate 
Hass", Elmundo.cr  (2019)  Claudia Marín, "Crecex: Nunca se debió prohibir la 
importación del aguacate Hass", Elmundo.cr  (2019)  
MEX-91 "Importadores prevén un precio 
más alto para el aguacate Hass de 
Perú", La Nación  (2015)  "Importadores prevén un precio más alto para el aguacate 
Hass de Perú", La Nación  (2015)  
MEX-92 "Exigen a gobierno tico 
transparencia en negociación 
aguacate mexicano", prensa -
latina.cu  (2019)  "Exigen a gobierno tico transparencia en negociación 
aguacate mexicano", prensa -latina.cu  (28 de febrero de 
2019)  
MEX-93 Affidavit of Jesús Alberto Salas 
Sanabria (2019)  Declaración Jurada de Jesús Alberto Salas Sanabria, 25 de 
marzo de 2019  
MEX-94 Affidavit of Eduardo Ramírez 
Castro (2019)  Declaración Jurada de Ed uardo Ramírez Castro, 25 de marzo 
de 2019  
MEX-95 Affidavit of Manrique Loáiciga 
González (2019)  Declaración Jurada de Manrique Loáiciga González, 27 de 
marzo de 2019  
MEX-96 Affidavit of Randall Benavides 
Rivera (2019)  Declaración Jurada de Randall Benavides Rivera, 28 de marzo 
de 2019  
MEX-97 Los Santos Zone (2007)  Ministerio de Agricultura y Ganadería de Costa Rica, Región 
Central Oriental, "Caracterización de la Agrocadena de 
Aguacate, Zona de los Santos" (2007)  
MEX-103 Resolution DSFE -002-2018 Servicio Fitosanitario del Estado de Costa Rica, Dirección 
Ejecutiva, Resolución DSFE -002-2018 
MEX-104 Manual NR -ARP-PO-01_M -01 Servicio Fitosanitario del Estado de Costa Rica, Departamento 
de Control Fitosanitario, "Manual para la elaboración de 
análisis cualitativo de riesgo de plaga por vía de entrada", 
NR-ARP-PO-01_M -01 (2016)  
MEX-114 SFE, Application of ISPM Nos. 6 
and 8 by the SFE  Servicio Fitosanitario del Estado de Costa Rica  (SFE) , 
Departamento de Operaciones Regionales, "Aplicación de las 
NIMF 6 y 8 por parte del Servicio Fitosanitario del Estado"  
MEX-115 Memorandum 
CIBCM -PCDV -044-2014 (2014)  Centro de Investigaciones en Biología Celular y Molecular de 
la Universidad de Costa Rica, Oficio CIBCM -PCDV -044-2014, 
29 de octubre de 2014  
MEX-117 Nurseries surveillance record  Registro de vigilancia en viveros que Costa Rica compartió al 
gobierno de México (seguimiento)  
MEX-118 CONSULSANTOS (2017)  Documento de la empresa consultora CONSULSANTOS 
S.R.L., 16 de marzo de 2017 
MEX-119 CONSULSANTOS (2010)  Empresa consultora CONSULSANTOS S.R.L., "Informe acerca 
de los resultados del censo socioeconómico -productivo de los 
productores de aguacate de la subregión Los Santos dentro 
de la consultoría : 'Caracterización socioeconóm ica y WT/DS524/R  
- 23 - 
  Exhibit  Short title  Title 
georreferenciación del cultivo del aguacate de altura en la 
zona de los Santos'" (2010)  
MEX-123 Corrigenda ARP -006-2016 (2019)  Servicio Fitosanitario del Estado (SFE) de Costa Rica, Unidad 
de Análisis de Riesgo de Plagas, "Análisis de riesgo de plag as 
por plaga para Avocado sunblotch viroid  (ASBVd), para frutos 
frescos de aguacate para consumo ( Persea americana  Mill.) y 
plantas para plantar de aguacate ( Persea americana  Mill.)"  
(Corrigenda de julio de 2019)  
MEX-124 IPPC Secretariat, "Diversion from 
intended use" (2016)  Secretaría de la CIPF, "Diversion from intended use" (2016)  
MEX-125 Garbanzo Solís (2011)  M. Garbanzo Solís, Manual de Aguacate – Buenas Prácticas 
de Cultivo Variedad Hass , 2.ª ed. (San José, Costa Rica: 
MAG, 2011)  
MEX-126 Mexico, Regulatory framework 
related to the avocado industry in 
Mexico (2019)  México, Marco normativo relacionado con la industria del 
aguacate en México (2019)  
MEX-129 Avocado Sunblotch Viroid (ASBVd) 
Diagnostic Testing in Costa Rica 
(2015)  Laborat orios Doctor Obregón, "Diagnóstico Viroide Mancha de 
sol del Aguacate (ASBVd) en Costa Rica", 18 de noviembre 
de 2015  
MEX-130 Chin et al. (1989)  H.F. Chin, B. Krishnapillay and P.C. Stanwood, "Seed 
Moisture: Recalcitrant vs. Orthodox Seeds", en P.C. 
Stanwood and M.B. McDonald (eds.), Seed moisture (Crop 
Science Society of America, Madison, Wisconsin, 1989) 
páginas 15 -22  
MEX-131 Corrigenda ARP -002-2017 (2019)  Servicio Fitosanitario del Estado de Costa Rica, Unidad de 
Análisis de Riesgo de Plagas, "Análisis de Riesgo de Plagas 
iniciado por la revisión de una política para la importación de 
frutos frescos de aguacate ( Persea americana  Mill.) para 
consumo, originarios de México" (Corrigenda de julio de 
2019)  
MEX-132 Wutscher and Maxwell  (1969 ) H.K. Wutscher and  N.P. Maxwell, "The Effect of Sub -freezing 
Temperatures on Fruit Quality and Seed Viability of 'Lula' 
Avocado", HortScience , Vol. 4, No.  2 (1969), páginas 26 -27  
MEX-133 Spalding et al. (1976)  D.H. Spalding, R.J. Knight and W.F. Reeder, "Storage of 
Avocado Seeds", Proceedings Florida State Horticultural 
Society , Vol. 89 (1976), páginas 257 -258  
MEX-134 Memorandum CIBCM -PCDV -021-
2015 (2015)  Centro de Investigación en Biología Celular y Molecular  de la 
Universidad de Costa Rica, Oficio CIBCM -PCDV -021-2015, 
6 de abril de 2015  
MEX-138 Technical report  
025-2015-ARP-SFE (2015)  Servicio Fitosanitario del Estado de Costa Rica, Unidad de 
Análisis de Riesgo de Plagas, "Informe Técnico 
025-2015-ARP-SFE", 25 de mayo de 2015  
MEX-139 SENASICA, Phytosanitary 
requirements for importation from 
the US, published in 2013  Servicio Nacional de Sanidad, Inocuidad y Calidad 
Agroalimentaria (SENASICA), Requisitos fitosanitarios para la 
importación de los EE.UU., publicado en 2013  
MEX-151 G/SPS/48  Comité de Medidas Sanitarias y Fitosanitarias, Directrices 
para fomentar la aplic ación práctica del artículo 6 del Acuerdo 
sobre la Aplicación de Medidas Sanitarias y Fitosanitarias, 
G/SPS/48 (16 de mayo de 2008)  
MEX-172 Téliz (2015)  D. Téliz, Información sobre el viroide de la mancha de sol del 
aguacate (2015)  
MEX-175 Saucedo Carab ez et al. (2019)  J.R. Saucedo Carabez, D. Téliz Ortiz, M.R. Vallejo Pérez and 
H. Beltrán Peña, "The Avocado Sunblotch Viroid: An Invisible 
Foe of Avocado", Viruses , Vol. 11 (2019)  
MEX-176 Trask (1948)  E.E. Trask, "Observations on the Avocado Industry in 
Mexico", Californi a Avocado Society Yearbook 1948, Vol. 33 
(1948)  
MEX-181 Bernal Estrada and Díaz Diez  
(2008)  J.A. Bernal Estrada y C.A. Díaz Diez (eds.), Tecnología para 
el Cultivo del Aguacate  (CORPOICA Centro de Investigación 
La Selva, Rionegro, Antioquia, Colombia , 2008)  
MEX-187 Affidavit of Dr Daniel Téliz Ortiz 
(2019)  Declaración Jurada del Dr  Daniel Téliz Ortiz, 4 de diciembre 
de 2019  
MEX-193 Palukaitis et al. (1981)  P. Palukaitis, A.G. Rakowski, D.McE. Alexander and R.H. 
Symons, "Rapid indexing of the sunblotch disease of 
avocados using a complementary DNA probe to avocado 
sunblotch viroid", Annals of Applied Biology , Vol. 98 (1981), 
páginas 439 -449  WT/DS524/R  
- 24 - 
  Exhibit  Short title  Title 
MEX-221 SENASICA , Comparison of the 
ASBVd diagnostic protocols of 
Mexico and Costa Rica (2020)  Servicio Nacional de Sanidad, Inocuidad y Calidad 
Agroalimentaria (SENASICA), Dirección General de Sanidad 
Vegetal, "Opinión Técnica de los Protocolos de diagnóstico 
Fitosanitar io para la detección de ausencia o presencia del 
viroide Avocado sunblotch viroid (ASBVd)", enero de 2020 
MEX-222 Affidavit of Salvador Ochoa 
Ascencio (2020)  Declaración Jurada de Salvador Ochoa Ascencio, 23 de enero 
de 2020  
MEX-223 APEAM, Preliminary report of 
sampling survey of consignments 
(2020)  Asociación de Productores, Empacadores y Exportadores de 
Aguacate de México, A.C. (APEAM) "Informe preliminar de 
resultados del muestreo para detectar ASBVd en aguacates 
frescos para consumo dest inados a la exportación", enero 
2020 
MEX-227 Affidavit of Rodolfo de la Torre 
Almaraz (2020)  Declaración Jurada de Rodolfo de la Torre Almaraz, 22 de 
enero de 2020  
MEX-233 Mexico, List of scientific evidence 
used in Costa Rica's PRAs  México, Relación de testimonios científicos utilizados en los 
ARP de Costa Rica  
MEX-245 Mexico, Table on the applicability 
of evidence  México, Cuadro sobre la aplicabilidad de evidencia 
presentada por Costa Rica  
MEX-263 APEAM, Final report of sampling 
survey of consignments  (2020)  Asociación de Productores, Empacadores y Exportadores de 
Aguacate de México, A.C. (APEAM), "Informe final de 
resultados del muestreo para detectar ASBVd en aguacates 
frescos para consumo destinados a la exportación", marzo de 
2020  
MEX-286 Mexico, Avocado and coffee 
production in Costa Rica (2020)  México, Análisis cronológico del desarrollo tecnológico del 
sistema de producción de  aguacate  y algunos cultivos como 
café en Costa Rica , 20 de mayo de 2020  
 
  WT/DS524/R  
- 25 - 
  ABBREVIATIONS USED IN THIS  REPORT  
Abbreviations  Descript ion 
ALOP Appropriate level of protection  
APHIS  United  States  Animal and Plant Health Inspection Service  
ASBVd  Avocado sunblotch viroid  
CABI Centre for Agriculture and Biosciences International  
COLEACP  Europe -Africa -Caribbean -Pacific Liaison Committee  
COSAVE  Plant Health Committee  
CPM Commission on Phytosanitary Measures  
DNA Deoxyribonucleic acid  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EPPO European and Mediterranean Plant Protection Organization  
EU European  Union  
FAO Food and Agriculture Organization of the United Nations  
GATT 1994 General Agreement on Tariffs and Trade 1994  
GATS  General Agreement on Trade in Services  
IICA Inter-American Institute for Cooperation on Agriculture  
IPPC International Plant Protection Convention  
ISPM International Standard for Phytosanitary Measures  
LDP Pest Diagnostic Laboratory  
MAG Ministry of Agriculture and Livestock of Costa Rica  
masl Metres above sea level  
NAPPO  North American Plant Protection Organization  
NPPO  National Plant Protection Organization  
OIRSA  International Regional Organization for Plant and Animal Health  
PFA Pest-free area 
PRA Pest risk analysis  
RNA Ribonucleic acid  
RPPO  Regional Plant Protection Organization  
RT-PCR Reverse transcriptase – polymerase chain reaction  
SAGARPA  Ministry of Agriculture and Rural Development  
SENASICA  National Health, Food Safety and Agri-food Quality Service of Mexico  
SFE State Phytosanitary Service  of Costa  Rica 
Single FTA  Free Trade Agreement between the United Mexican States and the Republics of 
Costa  Rica, El Salvador, Guatemala, Honduras and Nicaragua  
SPS Sanitary and Phytosanitary  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
UARP  Pest Risk Analysis Unit  
UCR University of Costa  Rica 
US United  States  of America  
USD United  States  dollars  
USDA  United  States  Department of Agriculture  
Vienna  Convention   Vienna  Convention  on the Law of Treaties, signed in Vienna, 2 3 May 1969, United 
Nations document A/CONF.39/27  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
 
  WT/DS524/R  
- 26 - 
  1  INTRODUCTION  
1.1.  The present dispute concerns certain measures imposed by Costa  Rica on the importation of 
fresh avocados for consumption from Mexico, related to Avocado sunblotch viroid (ASBVd).  
1.1  Complaint  by Mexico  
1.2.  On 8 March  2017, Mexico requested consultations with Costa  Rica pursuant to Articles  1 and  4 
of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), 
Article  XXII of the General Agreement on Tariffs and Trade 1994 (GATT  1994), and Article  11.1 of 
the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS  Agreement ), with 
respect to the measures and claims set out below.1 
1.3.  Consultations were held on 26 and 2 7 April 2017, but failed to resolve the dispute.2 
1.2  Panel establishment and composition  
1.4.  On 22 November  2018, Mexico requested the establishment of a panel pursuant to Articles  4.7 
and 6 of the DSU, Article  XXIII of G ATT 1994, and Article  11.1 of the SPS  Agreement  with standard 
terms of reference .3 At its me eting on 1 8 December  2018, the Dispute Settlement Body (DSB) 
established a panel pursuant to the request of Mexico in document WT/DS524/2, in accordance with 
Article  6 of the DSU.4 
1.5.  The Panel's terms of reference are as follows:  
To examine, in the light of  the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Mexico in document 
WT/DS524/2 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.5 
1.6.  On 16  May 2019, the parties agreed that the Panel would be composed as follows:  
Chair:  Mr Gary HORLICK  
 
Members:  Mr Alejandro BUVINIC  
 Ms María de Lourdes FONALLERAS  
 
1.7.  Canada, China, El Salvador, the European  Union , Honduras, India, Panama, the 
Russian  Federation and the United  States  notified their interest in participating in the Panel 
proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.8.  In order to hear the views of the parties on the Working Procedures and timetable, the Panel 
held an organizational meeting on 5 July 2019. The Panel adopted its Working Procedures6 and 
timetable on 1 6 July 2019.7 
1.9.  The Panel received Mexico's first writte n submission on 9  August  2019 and Costa  Rica's first 
written submission on 2 5 September  2019. The Panel received third party written submissions from 
Canada and the European  Union  on 8 October  2019. 
 
1 Mexico's request for consultations, WT/DS524/1.  
2 Request for establishment of a panel by Mexico, WT/DS524/2 (Mexico's panel request), p.1 . 
3 Mexico's panel request, WT/DS524/2, p. 1.  
4 DSB, Minutes of Meeting held on 18  December  2018, WT/DSB/M/423.  
5 Constitution of the Panel established at the request of Mexico, WT/DS524/3.  
6 See the Working Procedures of the Panel (Annex A -1). 
7 The Panel amended its timetable, at t he request of or in consultations with the parties, on multiple 
occasions, most recently on 8 February  2022. WT/DS524/R  
- 27 - 
  1.10.   The Panel sent advanced written questions to the parties and to the third parties on 
22 October  2019 and held its first meeting with the parties on 29 and 3 0 October  2019. A session 
with the third parties took place on 3 0 October  2019. The Panel then sent written questions to the 
parties and third parties on 1 November  2019. Mexico also sent written questions to Costa  Rica on 
the same date.  
1.11.   Canada, El Salvador and the European  Union  sent their responses to the Panel's questions on 
22 November  2019. 
1.12.   On 28 November  2019, the parties requested that the Panel extend the deadline for the 
submission of their written responses to the questions posed by the Panel and by the other party 
from 2 9 November  2019 to 6 December  2019. The Panel agreed to the parties' request, and the 
parties submitted their responses on 6 Decembe r 2019. 
1.13.   On 24 January 2020, the Panel received the parties' second written submissions.  
1.14.   Since March  2020, the COVID -19 pandemic , and the measures taken in response to this 
disease in Switzerland, in each party's territory and in the countries of residence  of the panelists and  
of the experts advising the panelists , called into question the subsequent dates on the timetable, 
including the dates proposed for the Panel's meeting with the parties and experts and  for the Panel's 
second meeting with the parties.  
1.15.   On 17 April 2020, the Panel informed the parties that it was assessing the situation  caused 
by the pandemic  and that it would contact them again in due course . The Panel also invited the 
parties to comment on this matter, if they so wished.  
1.16.   On 6 May 2020, Costa  Rica requested that the Panel postpone its  meeting with the parties 
and experts and its  second meeting with the parties, scheduled for 2 and 5 June 2020, as it would 
not be able to complete the necessary formalities to travel to Geneva as a result of the pandemic.  
1.17.   On 11 May 2020, Mexico indicated that it could agree to Costa  Rica's request . Mexico also 
indicated that ideally the meetings would be held in person as originally planned, but stressed the 
importance of obtaining a ruling as soon a s possible . Mexico stated that, if the evolution of the 
pandemic did not allow for the remaining  meetings to be held as originally planned in the next four 
months, it would review the matter again and explore alternatives for holding those meetings . 
1.18.   On 14 May 2020, the Panel informed  the parties that its meeting with the parties and experts 
and its second meeting with the parties were to be postponed until further notice, and that it would 
continue to monitor the  situation caused by  the pandemic.  
1.19.   On 29 May 2020, Mexico and Costa  Rica sent a communication to the DSB Chair, stating that 
both parties had agreed on Procedures for Arbitration under Article  25 of the DSU for this dispute.8 
1.20.   On 9 October  2020, the Panel informed the parties that it was still impossible to hold its 
meeting with them and the experts and its second meeting with the parties  in person, because of  
the situation caused by  the pandemic, including ongoing travel restrictions and the health risks 
associated with travelling and attending  large meetings . The Panel therefore invited the parties to 
express their views  on possible alternatives to move proceedings  forward and hold the remaining  
meetings, including  through virtual means, in writing, or using a combination of both . 
1.21.   On 16 October  2020, the parties sent their comments on possible alternative s to move 
proceedings  forward and hold the remaining  meetings . Mexico indicated that the virtual 
communication methods available to it would allow the remaining  meetings to be held virtually . For 
its part , Costa  Rica stated  that the most appropriate format for the Panel's second meeting with the 
parties was a hybrid one, whereby the parties could meet at the WTO in Geneva, and all those who 
could not be physically present could participate virtua lly. Costa  Rica also stated  that it would prefer 
the Panel's meeting with the parties and experts  to be conducted  in writing, and suggested that the 
remaining  meetings should be held  separately, with a  minimum of two weeks between the  meetings . 
 
8 Agreed Procedures for Arbitration under Article  25 of the DSU, WT/DS524/5.  WT/DS524/R  
- 28 - 
  1.22.   On 20 October  2020, the parties submitted their comments on the other party's comments  
concerning  possible alternatives to move proceedings  forward and hold the remaining  meetings . 
Mexico said that there was no compelling reason  for the meetings  to be held  at least two weeks 
apart, and indicated that, should  the Panel meet in person in Geneva to participate in the meetings, 
the format should be entirely virtual for both parties . Costa  Rica requested  that, should  the Panel 
adopt alternative procedures, these should be in line  with the provisions of its Working Procedures, 
and reserved the right to comment on them. 
1.23.   The Panel gave careful consider ation to  the parties' comments, the technological tools 
available to them, the situation caused by  the pandemic and the availability of both the panelists 
and the experts . 
1.24.   On 28 October  2020, the Panel informed the parties that it wished to hold both meetings 
virtually (through the Cisco Webex  platform ). The Panel also stated  that it wished to move 
proceedings  forward in a manner that resembled as much as possible how they would have unfolded  
if the world were not in the midst  of a pandemic , without having to chang e the Working Procedures 
that had already been adopted, or making only minimal changes, while at the same time striving to 
respond to the challenges arising from the situation . 
1.25.   The Panel noted that, owing to the participants' time differences and the limit ations inherent 
to a virtual meeting, eight working days would be required  for both its meeting with the parties and 
experts and its second meeting with the parties . The Panel advised  that it had been impossible to 
find eight consecutive working days on wh ich all the participants were available to attend those 
meetings . Therefore, the Panel was of the opinion that the best approach would be to separate  both 
meetings, as this would be the only way to proceed  with at least one of them (the Panel's meeting 
with the parties and the experts) before the end of 2020 . The Panel noted that none of the panelists 
would be able to travel to Geneva  because of the pandemic . 
1.26.   On 4 November  2020, the Panel proposed  a draft of Additional Working Procedures  of the  
Panel on meetings with remote participants to the parties, indicating that the idea behind th ese 
procedures was to supplement, rather than change , the Working Procedures of the  Panel and the 
Additional Working Procedu res of the Panel for consultations with experts . The Panel clarified that 
the aim of the Additional Working Procedures of the  Panel on meetings with remote participants was 
to ensure that the meetings were conducted  in a manner that resembled as much as po ssible 
in-person meetings, albeit by virtual means.  
1.27.   On 12 November  2020, the Panel sent the adopted Additional Working Procedures o f the Panel 
on meetings with remote participants to the parties , after considering the comments and views of 
the parties thereon .9 The Panel announced that those Additional Working Procedures would apply 
both to its meeting with the parties and experts and to its second meeting with the parties.  
1.28.   As described below, th e Panel's meeting with the parties and experts was held virtually on 
15 and 1 8 December  2020. 
1.29.   The Panel's second meeting with the parties was held on 9 and 1 1 March  2021, also virtually . 
The Panel sent advanced written questions to the parties on  1 March  2021 and written question after 
the meeting  on 17 March  2021. On 14 April 2021, the parties sent their responses  to the Panel's 
questions . On 28 April 2021, the parties sent their comments on the other party's responses  to the 
Panel's questions.  
1.30.   On 26 May 2021, the Panel issued the descriptive part of its Report to the parties . The parties 
sent their comments on the descriptive part of the Report on 9 June 2021. 
1.3.2   Costa  Rica's request for a preliminary ruling  
1.31.   In its first written submission, dated 2 5 September  2019, Costa  Rica raised a preliminary 
issue with respect to Mexico's claim that the actions of Costa  Rica had been inconsistent with 
Article  6.1 of the SPS  Agreement . Costa  Rica considered that Mexico's claim concerning the 
 
9 Additional Working Procedures of the Panel on meetings with remote p articipants, in Annex A -3. WT/DS524/R  
- 29 - 
  adaptation of Costa  Rica's measures to the areas of origin of the product was outside the Panel's 
terms of reference.10 
1.32.   Pursuant to paragraph 4(1)(a) of the adopted Working Procedures11, the Panel provided 
Mexico with an opportunity to respond to Costa  Rica's preliminary ruling request prior to the Panel's 
first meeting with the parties . Mexico submitted its response to Costa  Rica's request on 
15 October  2019. Both parties had an opportunity to comment on Costa  Rica's preliminary ruling 
request at the Panel's first meeting with the parties . Pursuant to paragraph 4(1)(d) of the adopted 
Working Procedures12, the Panel also provided third parties with an opportunity to comment on 
Costa  Rica's preliminary ruling request. Canada commented as a third party on 22  October  2019.  
1.33.   The Panel issued its preliminary ruling on 1 8 December  2019. In its findings, the Panel 
indicated that the preliminary ruling would become an integral part of the Panel  Report . This 
preliminary ru ling can therefore be found in Annex D of the Addendum.  
1.3.3   Consultation of experts and international organizations  
1.34.   As the parties' arguments involved complex scientific or technical issues, to ensure conformity 
with its terms of reference and in accordance with Article  11.2 of the SPS  Agreement  and Article  13 
of the DSU, the Panel consult ed scientific or technical experts and the Secretariat of the International 
Plant Protection Convention (IPPC).  
1.3.3.1   Panel decision to consult individual experts and the IPPC Secretariat  
1.35.   At the organizational meeting held on 5 July 2019, the Panel Chair asked for the parties' initial 
views o n the need to consult experts in this dispute . The Panel Chair also requested  the parties' 
comments on the proposed Additional Working Procedures of the Panel  for consultations with 
experts . The parties had an opportunity to express their views both at the  organizational meeting 
and in writing on 8 July 2019. 
1.36.   On 25 September  2019, a fter receiving the parties' first written submissions, the Panel sent 
a communication to the parties inviting them to express their views on the possibility of seeking 
scientific  or technical advice from individual experts and/or international organizations, as well as 
on the considerations that should guide the Panel in making its decision.13 
1.37.   The Panel also sought the parties' views, should it decide to seek scientific and/or tec hnical 
advice from experts and/or international organizations, on : (i) specific issues where they considered 
that input from experts and/or international organizations would be beneficial ; (ii) international or 
regional organizations or other potential rel evant research institutions or bodies, in addition to the 
IPPC Secretariat, whose assistance the Panel could seek in order to obtain names of potential 
individual experts ; (iii) the profiles of individual experts (for example, their experience and 
qualific ations) that would be more useful or relevant to the dispute ; (iv) international or regional 
organizations or other potential ly relevant  research institutions or bodies, in addition to the 
IPPC Secretariat, whose scientific or technical advice the Panel co uld seek ; and (v)  the type of 
consultation that should be used (i.e. written, oral or both types of consultation).14 
1.38.   On 8 October  2019, i n its response to the Panel, Mexico stated that it had no objection to the 
Panel's use of individual experts and international organizations15; and that the Panel's main 
consideration should be that the dispute was fundamentally about scientific and technical issues .16 
Mexico added that the parties had presented arguments and raised issues of fact that were 
 
10 Costa Rica's first written submission, paras.  4.1-4.18. 
11 The relevant part of paragraph 4(1)(a) provides that "Mexico shall submit its response to the request 
prior to the substantive meeting of the Panel, at a time to be dete rmined by the Panel in light of the request".  
12 The relevant part of paragraph 4(1)(d) provides that "[t]he Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as provided for in the 
timetable or separately".  
13 Letter from the Panel to the parties, dated 25  September  2019.  
14 Letter from the Panel to the parties, dated 25  September  2019.  
15 Letter from Mexico to the Panel, dated 8  October  2019, para.  5. 
16 Letter from Mexico to the Panel, dated 8  October  2019, para.  6. WT/DS524/R  
- 30 - 
  contradic tory and, therefore, having impartial and technically justified views would help guide the 
Panel's deliberations.17 
1.39.   Mexico considered that it would be beneficial to have input from experts and/or international 
organizations on the following specific issues  in the dispute : (i) the nature, characteristics and types 
of ASBVd ; (ii) assessment of phytosanitary risk ; (iii) determination of the presence or absence of a 
pest in an area ; (iv) quarantine nature of the pest and economic importance ; (v) diversion from 
intended use in a risk assessment ; (vi) ASBVd routes of transmission ; (vii) evaluation of the entry, 
establishment and spread of ASBVd ; and (viii) methods of detection and characterization of ASBVd .18 
Mexico also stated that the expert profiles that would be most useful and relevant to the dispute 
would include those with proven experience in studies related to agricultural sciences, plant virology, 
phytopathology and, in particular, avocado diseases.19 
1.40.   Mexico identified the North American Plant Protection Organization (NAPPO) and the 
Inter-American Institute for Cooperation on Agriculture (IICA) as other organizations, in addition to 
the IPPC Secretariat, whose assistance the Panel could seek in order to obtain names of individual 
experts, and whose scienti fic or technical advice it could also seek directly.20 
1.41.   Costa  Rica, however, stated that, in its view, there were no specific issues that warranted the 
Panel using experts and that it was up to the Panel, and not to any technical or scientific expert, to 
settle this matter, which Costa  Rica considered to be of a highly legal nature . Costa  Rica added that, 
should the Panel decide to seek scientific or technical advice, it hoped that the relevant steps would 
be taken to ensure that the experts met the requirem ents of independence and impartiality needed 
to fulfil their task, and assumed that due process would be respected in the relevant consultations 
and that the proposed Additional Working Procedures of the Panel  for consultations with experts 
would be followed .21 
1.42.   On 18 October  2019, the Panel informed the parties of its decision on the need to seek 
scientific or technical advice from individual experts and/or relevant international organizations or 
bodies.  
1.43.   The Panel noted that Article  13.1 of the DSU gives panels "the right to seek information and 
technical advice from any individual or body which it deems appropriate" ; that this right is of a broad 
nature22; and that  Article  11.2 of the SPS  Agreement  provides t hat in a dispute under this Agreement 
involving scientific or technical issues, the panel should seek advice from experts chosen by the 
panel in consultation with the parties to the dispute.23 
1.44.   The Panel also pointed out that, in addition to the right to se ek information and technical 
advice, panels have, under Article  11 of the DSU, a duty to make an objective assessment of the 
matter before it, including an objective assessment of the facts of the case.24 
1.45.   The Panel observed that the facts of the present dispute involve d scientific and technical issues 
on which the panelists lacked expertise .25 Therefore, in order to be able to make an objective 
assessment of the facts of the case, the Panel would require advice from experts to assist it with the 
analysis an d assessment of the relevant scientific and technical issues.26 
 
17 Letter from Mexico to the Panel, dated 8  October  2019, para.  6. 
18 Letter from Mexico to the Panel, dated 8  October  2019, para.  7. 
19 Letter from Mexico to the Panel, dated 8  October  2019, para.  9. 
20 Letter from Mexico  to the Panel, dated 8  October  2019, para.  8. 
21 Letter from Costa Rica to the Panel, dated 8  October  2019.  
22 Appellate Body Report, US – Shrimp , paras.  104 and 106.  
23 Panel decision on the need to seek scientific or technical advice from individual experts  and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.1. 
24 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.2. 
25 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.3. 
26 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.4. WT/DS524/R  
- 31 - 
  1.46.   In light of the foregoing , the Panel decided to seek scientific or technical advice from individual 
experts, through written and oral consultations27, on the following areas:  
a. Techniques for gr owing, producing, transporting, storing and marketing avocados, 
including their propagation from seeds  discarded following  consumption, both naturally 
and as a result of diversion from intended use.  
b. The nature, characteristics and types of ASBVd, including  the pathways and likelihood of 
entry, establishment and spread ; its geographical prevalence ; its seasonality and climate 
susceptibility ; its effects on avocado trees and fruit ; its economic importance and its 
categorization as a quarantine pest ; methods for detecting its presence or absence in an 
area; possible methods for its control, management and eradication.  
c. Phytosanitary risk assessment methods and techniques, including types of investigation, 
sources of information, scientific method, and cr iteria on reliability and validity of findings.  
d. The meaning, scope and application of  the International Standards for Phytosanitary 
Measures (ISPMs).28 
1.47.   Lastly, the Panel adopted the Additional Working Procedures of the Panel  for consultations 
with experts with the amendments it considered appropriate in light of the parties' comments.29, 30 
1.3.3.2   Panel selection of individual experts  
1.48.   In its decision of 1 8 October  2019, the Panel informed the parties that it would seek the 
assistance of the IPPC Secretariat, of the NAPPO (directly or through the IPPC) and  of the  IICA to 
obtain names of potential experts .31 The Panel also invited the parties to submit an agreed list of 
experts, if they so wished, by the end of its first meeting with the parties.32 
1.49.   On 22 October  2019, the Panel contacted the IPPC Secretariat, NAPPO and the IICA, seeking 
assistance to identify  potential experts . While the IICA stated that it had not been able to obtain any 
names of potential experts, NAPPO and the IPPC Secretariat provided some names.33 
1.50.    On 27 November  2019, after informing the parties, the Panel requested assistance from some 
other  regional organizations operating within the framework of the IPPC (the European and 
Mediterranean Plant Protection Organization (EPPO), the International Re gional Organization of Plant 
and Animal Health (OIRSA) and the Plant Health Committee (COSAVE)) for additional names of 
potential experts . EPPO, OIRSA and COSAVE provided some additional names.34 
1.51.   Between November  2019 and January  2020, the Panel contacted each of the 
19 potential  experts who had been suggested , in order to determine whether they would be 
interested and available to advise the Panel in this dispute and, if so, to collect the relevant 
documentation . On 16 January  2020, the Panel sen t the parties a list of the names of all the persons 
who had been contacted, identifying the 15 potential experts who had confirmed their interest and 
 
27 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant inte rnational organizations or bodies, dated 18  October  2019, para.  2.5. 
28 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.6. 
29 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  3.3. 
30 Additional Working Procedures of the Panel for consultations with experts, in A nnex A -2. 
31 Panel decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.9. 
32 Panel decision on the need to seek scientific or technical advi ce from individual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.10. 
33 Email from the IICA, dated 18  November  2019; from NAPPO, dated 4  November  2019; and from the 
IPPC Secretariat, dated 5  December  2019.  
34 Email from EPPO, dated 12  December  2019; from OIRSA, dated 13  December  2019; and from 
COSAVE, dated 13  December  2019.  WT/DS524/R  
- 32 - 
  availability to assist the Panel . The Panel also provided the relevant documentation that had been 
gather ed.35 
1.52.   Pursuant to paragraph 4 of the Additional Working Procedures of the Panel  for consultations 
with expe rts36, the Panel provided the parties with an opportunity to comment in writing and to 
make known any compelling objections to any particular expert . The Panel received the parties' 
comments on 3 1 January  2020 and the parties' comments on the other party's comments on 
7 February  2020.  
1.53.   On 14 February  2020, the Panel issued its decision on the selected experts . Pursuant to 
paragraph 5 of the Additional W orking Procedures of the Panel  for consultations with experts37, and 
in consideration of both parties' comments, the Panel chose Prof Dr Ricardo Flores Pedauyé38, 
Mr Pablo Cortese39 and Mr Robert L.  Griffin40 as experts to provide scientific or technical advice in 
this dispute.41 
 
35 This documentation included: their curricul a vitae, lists of publications, and statements of potential 
conflicts of interest of those who had indicated that they would be interested and available to participate in the 
proceedings.  
36 Paragraph 4 of the Additional Working Procedures of the Panel for consultations with experts states: 
"[p]arties shall have the opportunity to comment a nd to make known any compelling objections to any 
particular expert."  
37 Paragraph 5 of the Additional Working Procedures of the Panel for consultations with experts states: 
"The Panel shall select the experts on the basis of their qualifications and the ne ed for specialized scientific 
expertise, and shall not select experts whom the Panel considers to have a conflict of interest either after self -
disclosure or otherwise. The Panel shall decide the number of experts in light of the number and type of issues 
on which advice shall be sought, as well as of the different areas on which each expert can provide expertise."  
38 The late Professor Dr Ricardo Flores Pedauyé was a research professor with the Department of 
Molecular and Evolutionary Plant Virology at the Institute of Molecular and Cellular Plant Biology (IBMCP) of the 
Spanish National Research Council (CSIC) in Valencia, Spain. In addition to having held various teaching 
positions, Ricardo Flores Pedauyé conducted various scientific studies, published nume rous articles on virology 
issues, including ASBVd. and participated in many national and international conventions and conferences. He 
supervised pre -doctorate, doctoral and post -doctorate theses, and was, inter alia , vice president of the 
Spanish  Society for Virology, chair of the Viroids Study Group of the International Committee on Taxonomy of 
Viruses, advisor on viroids to the United  States ' National Center for Biotechnology Information, editor and 
reviewer of various journals, and assessor of various s cientific units.  
39 Mr Pablo Luis Cortese, agricultural engineer and holder of a Master's degree in plant protection, is 
currently the Director of Phytosanitary Strategic Information at the National Agriculture and Food Quality and 
Health Service (SENASA) o f Argentina, and Associate Professor and Chair of Plant Protection at the Faculty of 
Agronomy of the University of Buenos Aires. He also served as the National Coordinator of the National Citrus 
Health Programme of the Plant Health Directorate at SENASA. P ablo Cortese has authored various publications 
on surveillance and has experience of governance at the national, regional and international levels, having 
been involved, inter alia , in the development and coordination of programmes for phytosanitary survei llance, 
prevention and management of agricultural pests; the development of operational and technical manuals in the 
field of plant protection; the development of traceability systems; and the design and coordination of 
information systems and databases. P ablo Cortese also represents Argentina in the MERCOSUR Plant Health 
Commission, has been a member of expert groups of COSAVE and in the framework of the IPPC, and has acted 
as a consultant with the IICA and the IPPC.  
40 Robert Lee Griffin, biologist and hol der of a Master's degree in plant pathology, has been the National 
Coordinator for Agriculture Quarantine Inspection at the United  States  Department of Agriculture (USDA), 
Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine,  in North Carolina, 
United  States. He held various posts at the USDA APHIS, including Director of the Plant Epidemiology and Risk 
Analysis Laboratory (PERAL) at the USDA APHIS Center for Plant Health Science and Technology. Robert Griffin 
also served as Co ordinator of the IPPC Secretariat, where he oversaw the Secretariat's leadership and 
management in implementing the work programme for global harmonization, and was responsible for the 
creation and adoption of ISPM Nos. 6 -24; the establishment of the IPPC information exchange programme; the 
IPPC dispute settlement mechanism; phytosanitary technical assistance programmes; and for representing the 
IPPC at meetings of the WTO Committee on Sanitary and Phytosanitary Measures.  
41 Panel decision on selected expert s and on the need to seek scientific or technical advice from relevant 
international organizations or bodies, dated 14  February  2020, para.  2.2. WT/DS524/R  
- 33 - 
  1.54.   In its decision, the Panel noted that both parties considered Ricardo Flores Pedauyé and 
Pablo  Cortese to be viable or suitable choices for consultation by the Panel .42 Robert L.  Griffin was 
not deemed an acceptable expert by Costa  Rica because, in its view, his understanding of Spanish 
was limited .43 Mexico, however, considered the potential experts' technical and scientific knowledge 
to be the most important factor, rather  than their  proficiency in Spanish .44 The Panel considered 
Robert L.  Griffin to be an expert with the necessary experience and qualifications to advise the Panel, 
as he had indicated that he could fully understand written Spanish, including technical material, and 
that he could write and speak in Spanish at a conversational level .45 Moreover, the Panel indicated 
that the parties would be provided with Spanish translations of Robert L.  Griffin's responses, as well 
as interpretation from Spanish to English and from Engl ish to Spanish at the Panel's meeting with 
the parties and experts.46 
1.55.   On 7 February  2020, the Panel informed the parties that it had decided to seek assistance 
from two bodies that work with the IPPC Secretariat, the Centre for Agriculture and Biosciences 
International (CABI) and the Europe -Africa -Caribbean -Pacific Liaison Committee (COLEACP), and 
from the two experts who had not been challenged by either party, to nominate potential additional 
scientific or technical experts who could also advise on area " a" (techniques for growing, producing, 
transporting, storing and marketing avocados) . This was because both parties had rejected all the 
experts who had claimed to be knowledgeable in area "a" . On 10 February  2020, the Panel also 
invited the parties to sug gest names of potential additional individual experts, if they so wished.  
1.56.   On 10 February  2020, the Panel contacted COLEACP, CABI and the two experts who had not 
been challenged by either party, Ricardo Flores Pedauyé and Pablo Cortese, seeking their assist ance 
with names of potential additional individual experts . COLEACP and Ricardo Flores Pedauyé gave the 
Panel the names of two potential additional experts .47 The Panel contacted both of them.  
1.57.   On 13 February  2020, the Panel sent the relevant documentation from the two suggested 
experts to the parties and provided the parties with an opportunity to comment in writing and to 
make known any compelling objections . Mexico also sent a list nominating seven potential additional 
experts on 1 3 February  2020, and the Panel invited Costa  Rica to comment . On 17 February  2020, 
the Panel received the parties' comments on the suggested additional experts . 
1.58.   On 19 February  2020, the Panel issued a decision in which it chose Dr  Fernando  Pliego  Alfaro48 
as the fou rth expert to provide it with scientific or technical advice in this dispute . In its decision, 
the Panel noted that Mexico considered the appointment of Fernando Pliego Alfaro to be viable and 
that, while Costa  Rica had stated that three experts would be s ufficient, it would be willing to 
withdraw its reservations concerning Fernando Pliego Alfaro  since he had the required experience . 
The Panel considered that the four selected experts would enable it to adequately cover the four 
 
42 Panel decision on selected experts and on the need to seek scientific or technical advice from relevant 
international organizations or bodies, dated 14  February  2020, para.  2.3. 
43 Letter from Costa Rica to the Panel, dated 31  January  2020.  
44 Letter from Mexico to the Panel, dated 7  February  2020.  
45 Panel decision on selected experts and on the need to seek scientific or technical advice from relevant 
international organizations or bodies, dated 14  February  2020, para.  2.5. 
46 Panel decision on selected experts and on the need to seek scientific or technical advice from relevant 
international organizat ions or bodies, dated 14  February  2020, para.  2.6. 
47 Email from COLEACP, dated 10  February  2020; and from Ricardo Flores Pedauyé, dated 
10 February  2020.  
48 Professor  Dr Fernando Pliego Alfaro is an expert in the development and use of biotechnological tool s 
for the genetic enhancement of plants, as a complementary strategy to conventional enhancement 
programmes. With regard to avocados, he has undertaken studies on in vitro propagation and rooting, as well 
as zygotic embryogenesis, both in vivo and in vitro . His work has served as the basis for the establishment of 
protocols for the micropropagation of trees selected in the field for their resistance to Rosellinia necatrix , as 
well as protocols for plant regeneration via somatic embryogenesis and genetic tra nsformation. 
Prof Dr Pliego  Alfaro has been responsible for various research projects on the in vitro regeneration of 
avocados and other woody species, the results of which have been presented at various international 
conventions and have given rise to num erous publications.  Prof Dr Pliego  Alfaro  is currently Chair of Plant 
Physiology of the Department of Botany and Plant Physiology of the Faculty of Science at the University of 
Málaga, Spain, and is the Director of the Andalusian Institute of Biotechnology . Fernando Pliego Alfaro has also 
been the President of the International Avocado Society and the Spanish Society of In Vitro Plant Tissue 
Culture, having as he does considerable experience of organizing and managing research and development 
activities. He  is a member of various international Master's and doctoral programmes, has extensive 
experience of supervising Master's and doctoral theses; in addition, he has sat on various committees and been 
a member of international delegations throughout his profes sional career.  WT/DS524/R  
- 34 - 
  areas where expertise was n eeded . The Panel also reported that it did not consider it necessary or 
feasible to contact the additional experts suggested by Mexico, all of whom had been challenged by 
Costa  Rica.49 
1.3.3.3   Panel questions for the individual experts  
1.59.   On 31 January  2020, pursuant  to paragraph 8 of the Additional Working Procedures of the 
Panel  for consultations with experts50, the Panel invited the parties to propose written questions for 
the experts, which the Panel would then consider including in its written questions for the experts . 
The parties sent their proposed written questions for the experts on 1 4 February  2020. 
1.60.   On 21 February  2020, the Panel sent the experts its written questions51, the guidelines on 
drafting responses and the annexes to the guidelines .52 In its guidelines, the Panel invited the 
experts to answer the questions they felt competent to answer, while noting the cross -cutting nature 
of the four areas identified as areas in which the Panel sought advice . The Panel asked the experts 
to submit their responses in writing by 2 0 March  2020. In accordance with  paragraph 9 of the 
Additional Working Proced ures of the Panel  for consultations with experts , the Panel also provided 
the experts with the necessary dispute documents to prepare their responses53 
1.61.   On 5 March  2020, the Panel informed the partie s of its decision to extend the deadline for the 
experts t o respond to the Panel's written questions from 20  March  2020 to 27  March  2020, owing to 
an unexpected delay in mailing the documents to the experts . 
1.62.   On 6 March  2020, Costa  Rica sent the Panel a letter requesting the modification or elimination 
of 20 quest ions from the Panel's list of 187 questions for the individual experts . The Panel provided 
Mexico with an opportunity to comment on Costa  Rica's request . Mexico sent its comments on 
11 March  2020. On 20 March  2020, the Panel issued its decision regarding Costa  Rica's comments 
on the Panel's questions for the experts . Although the Panel rejected all of Costa  Rica's claims 
surrounding those questions, it nevertheless decided to address Costa  Rica's concern, removi ng 
some of the questions and modifying the wording of others.54 
1.63.   In its letter of 6 March  2020, Costa  Rica also requested that the Panel reconsider the 
circulation of the experts' individual opinions to the other experts prior to the Panel's meeting with 
the parties and experts, and ensure that  during the meeting  each of the experts be able to provide 
their technical advice separately, without the other experts being present . In its ruling of 
20 March  2020, t he Panel rejected Costa  Rica's request . In the vie w of the Panel, the fact that the 
experts would see the responses of the other experts and all be present at the meeting would not 
undermine the independence and autonomy of each expert's individual approach, or their objectivity 
or impartiality . The Panel  also noted that such procedural aspects had been used consistently in 
previous disputes under the SPS  Agreement .55 
1.64.   The Panel received the responses from the four experts by the deadline . Robert Griffin sent 
his written responses on 1 4 March  2020, and his responses to the modified questions on 
26 March  2020; Pablo Cortese sent his written answers on 25  March  2020; and 
 
49 Panel decision on selected additional expert, dated 19  February  2020.  
50 The relevant part of paragraph 8 of the Additional Working Procedures of the Panel for consultations 
with experts states that "[t]he Panel shall prepare written questions for the experts. The parties shall be 
invited to suggest a limited number of question s that the Panel could include in its questions for the experts".  
51 The Panel's questions to the individual experts include some, but not all, of the questions proposed by 
the parties.  
52 The annexes include a list of all the documents sent to the experts a nd the Working Procedures of 
the Panel.  
53 The relevant part of paragraph 9 of the Additional Working Procedures of the Panel for consultations 
with experts establishes that "[t]he Panel may provide the experts, on a confidential basis, with the parties' 
submissions, including exhibits, as well as with any additional information deemed necessary". The documents 
provided include: written submissions, the parties' opening and closing statements at the first meeting of the 
Panel, the parties' responses to the P anel's questions and selected exhibits, including those that contain the 
measures at issue.  
54 Panel decision on Costa Rica's comments on the questions for the experts and the participation of 
individual experts in the next steps, dated 20  March  2020.  
55 Panel decision on Costa Rica's comments on the questions for the experts and the participation of 
individual experts in the next steps, dated 20  March  2020, para.  3.2. WT/DS524/R  
- 35 - 
  Fernando  Pliego  Alfaro and Ricardo Flores Pedauyé sent theirs on 2 7 March  2020. Pursuant to 
paragraph 8 of the Additional Working Procedures of the Panel  for consultations with experts56, the 
Panel provided the parties with the experts' responses and gave them an opportunity to comment 
in writing on the responses . The Panel also provided the experts with the respon ses of the other 
experts, pursuant to paragraph  10 of the Additional Working Procedures of the Panel  for 
consultations with experts .57 
1.65.   On 13 April 2020, Costa  Rica requested that the deadline for sending the parties' comments 
to the experts' written respon ses be extended because of the COVID -19 pandemic . On 15 April 2020, 
Mexico indicated that it had no objection to Costa  Rica's request . On 17 April 2020, the Panel 
informed the parties of its decision to extend the deadline from 2 2 April 2020 to 6 May 2020. As a 
result, the date of receipt of the parties' comments on the other party's comments on the experts' 
written responses was postponed until 1 3 May 2020. 
1.66.   On 28 April 2020, Mexico requested that the deadline for the submission of comments on the 
other par ty's comments on the experts' written responses be extended . Costa  Rica did not object to 
this request . On 1 May 2020, the Panel agreed to extend the deadline from 1 3 May 2020 to 
20 May 2020. 
1.67.   The parties sent their comments on the experts' written responses on 6 May 2020 and their 
comments on the other party's comments on 2 0 May 2020. 
1.68.   Pursuant to paragraph 10 of the Additional Working Procedures of the Panel  for consultations 
with expert s58, the Panel provided the four experts with the parties' comments on their written 
responses, as well as the parties' views on the other party's comments on their written responses.  
1.69.   On 13 July 2020, pursuant to paragraph 11(e) of the Additional Working Procedur es of the 
Panel  for consultations with experts59, the Panel informed the parties that it had decided to ask Pablo 
Cortese and Ricardo Flores Pedauyé a very limited number of additional questions to allow the 
experts to expand on or modify their responses t o certain questions, in  light of some documentary 
evidence that might be relevant to the topics covered by these questions.  
1.70.   On 15 July 2020, the Panel sent the additional questions to the experts Ricardo Flores Pedauyé 
and Pablo  Cortese, together with the guidelines on drafting responses and the annexes to the 
questions .60 The Panel also provided the experts with the documentary evidence referred to in the 
questions . On 24 July 2020, the Panel informed the parties that it would give them an opportunity 
to comment on the two experts' responses to the Panel's additional questions, as well as on the 
other party's comments.  
1.71.   On 2 7 July 2020, Mr Cortese sent his responses to the Panel's additional questions . 
On 30 July 2020, Mr Flores Pedauyé sent his responses to the Panel's additional questions  for him . 
On 31 July 2020, the Panel provided the parties with the responses of the experts Pablo Cortese and 
Ricardo Flores Pedauyé and gave them an opportunity to comment in writing on these responses . 
The Pan el also provided the other experts with the responses of Pablo Cortese and Ricardo Flores 
 
56 The relevant part of paragraph 8 of the Additional Working Procedures of the Panel for  consultations 
with experts states the following: "The Panel shall provide the parties with copies of the [experts'] responses, 
in accordance with the timetable adopted by the Panel. The parties shall have the opportunity to comment in 
writing on the respo nses from the experts".  
57 The relevant part of paragraph 10 of the Additional Working Procedures of the Panel for consultations 
with experts reads as follows: "The Panel may schedule a meeting with the experts prior to or in conjunction 
with the second sub stantive meeting with the parties. Prior to the Panel's meeting with the experts, the Panel 
shall ensure that: (…) b. each expert is provided with the other experts' responses to the Panel's questions".  
58 The relevant part of paragraph 10 of the Additional  Working Procedures of the Panel for consultations 
with experts states: "The Panel may schedule a meeting with the experts prior to or in conjunction with the 
second substantive meeting with the parties. Prior to the Panel's meeting with the experts, the P anel shall 
ensure that: a. the parties' comments on the experts' responses are provided to all experts".  
59 Paragraph 11(e) of the Additional Working Procedures of the Panel for consultations with experts 
states: "The Panel may pose additional written quest ions or schedule additional meetings with the experts if 
necessary".  
60 The annexes contain some of the experts' responses to the Panel's questions for the experts dated 
21 February  2020.  WT/DS524/R  
- 36 - 
  Pedauyé, pursuant to paragraph 10 of the Additional Working Procedures of the Panel  for 
consultations with experts .61 
1.72.   The parties sent their comments on the responses  of the experts Ricardo Flores Pedauyé and 
Pablo  Cortese on 1 4 August  2020, and their comments on the other party's comments on 
21 August  2020.  
1.3.3.4   Request for information from the Panel to the parties  
1.73.   On 3 August  2020, pursuant to Article  13.1 of the DSU, Art icle 11.2 of the SPS  Agreement 
and paragraph 9 of the Working Procedures of the Panel62, the Panel sent the parties a request for 
information on the ASBVd surveillance system in Costa  Rica. The Panel asked the parties to submit 
any additional information and supporting documentation they may have relat ed to the ASBVd 
surveillance system in Costa  Rica, including the aspects listed in that request, by 31  August  2020.  
1.74.   On 2 6 August  2020, Costa  Rica requested that the deadline for the submission of the 
requested information be extended to 1 8 September  2020, because "the preparation of the report 
on the ASBVd surveillance system in Costa  Rica, requested by the Panel, ha[d] imposed unforeseen 
workloads on the regular work programme of the staff of the State Phytosanitary Service of 
Costa  Rica (SFE)", in addition to the work that the COVID -19 pandemic had created for the 
phytosanitary authorities .63 On 28 August  2020, the Panel sent a letter to the parties clarifying that 
they had been requested to submi t "any additional information and supporting documentation [they 
may have] relating to the ASBVd surveillance system in Costa  Rica", including the aspects listed in 
its request of 3 August  2020. The Panel added that Costa  Rica could submit a document 
conso lidating information that was already available on its surveillance system, if Costa  Rica 
considered that such information was necessary to understand its surveillance system . The Panel 
emphasized, however, that it was not seeking new information or trying  to obtain an update to the  
information, but was giving the parties an opportunity to submit any additional information and 
supporting documentation relating to the ASBVd surveillance system in Costa  Rica already in their 
possession.  
1.75.   On 31 August  2020, Mexico sent its response to the Panel's request for additional information 
and supporting documentation, and commented on Costa  Rica's request to extend the deadline . 
Mexico stated that the information on ASBVd surveillance  in Costa  Rica was solely in  the hands of 
Costa  Rica and that it was therefore up to Costa  Rica to submit the information and documentation 
requested64; and that, while it understood that the situation caused by the pandemic had posed a 
challenge to every government in the world, it did not warrant the request for an extension of 
18 additional days, especially since the information and documents in question should, in principle, 
be almost immediately available and accessible to the SFE.65 
1.76.   On 1 September  2020, the Panel informed the pa rties that it had decided to extend the 
deadline  for submission of the response to the information request  from 3 1 August  2020 to 
14 September  2020. 
1.77.   On 14 September  2020, Costa  Rica sent its response to the request for information on the 
ASBVd surveillance  system in Costa  Rica. On 28 September  2020, Mexico sent its comments on the 
information submitted by Costa  Rica. 
1.78.   On 6 October  2020, Costa  Rica sent a letter  to the Panel, requesting that it declare 
inadmissible what Costa  Rica considered to be Mexico's procedural claim , includ ed in its comments 
on the information presented by Costa  Rica, that the Panel should rule on the determination of 
 
61 The relevant part of paragraph 10 of the Additional Working Procedu res of the Panel for consultations 
with experts states: "The Panel may schedule a meeting with the experts prior to or in conjunction with the 
second substantive meeting with the parties. Prior to the Panel's meeting with the experts, the Panel shall 
ensur e that: (…) b. each expert is provided with the other experts' responses to the Panel's questions".  
62 The relevant part of paragraph 9 of the Working Procedures of the Panel states that "[t]he Panel may 
pose questions to the parties and third parties at an y time".  
63 Email from Costa Rica to the Panel, dated 26  August  2020.  
64 Letter from Mexico to the Panel, dated 31  August  2020, paras.  1-4. 
65 Letter from Mexico to the Panel, dated 31  August  2020, paras.  5-9. WT/DS524/R  
- 37 - 
  freedom from  ASBVd  in Costa  Rica, as well as the claims related to this .66 On 7 October  2020, the 
Panel informed the parties that it did not consider it necessary at that point in the proceedings to 
rule on this request and that it would address Costa  Rica's request, as well as  its arguments in this 
regard, in its Report . The Panel invited Mexico to express its views on Costa  Rica's request and 
arguments in subsequent stages of the proceedings, without prejudice to its right to express its 
views sooner, if it so wished.  
1.3.3.5   Panel me eting with the parties and experts  
1.79.   As noted above, o n 9 October  2020, the Panel informed the parties that, because  of the 
situation caused by the COVID -19 pandemic, it was not possible at that time to hold its second 
meeting with the parties or its meeting  with the parties and experts in  person . In light of the 
foregoing, the Panel invited the parties to express their views on possible alternatives to hold the 
remaining meetings.  
1.80.   On 1 6 October  2020, the parties sent their views on possible alternatives to m ove the 
proceedings forward and hold the remaining meetings . Mexico indicated that the virtual 
communication methods available to it would allow the Panel's meeting with the parties and experts  
and the Panel's second meeting with the parties to be held virtually . Costa  Rica, however, stated 
that it would prefer the Panel's meeting with the parties and experts to be conducted in writing  
because the meeting would require coordination between its le gal and scientific -technical teams, 
which were in different geographic areas . 
1.81.   On 20 October  2020, the parties submitted their comments on the other party's comments 
concerning possible alternatives to move proceedings forward and hold the remaining meeting s. 
With regard to Costa  Rica's proposal to have a written exchange with the experts instead of a virtual 
meeting, Mexico considered that the meeting needed to be conducted through a virtual exchange 
and not just in writing, noting that there had been writt en exchanges of information with the experts 
since February  2020, and that written proceedings would limit the dynamic exchange that would 
occur in a virtual meeting . Costa  Rica, however, reiterated that, due to the logistical difficulties 
arising from hav ing legal and scientific -technical teams at different latitudes, it would be more 
efficient to conduct the Panel's meeting with the parties and experts by sending written questions 
and answers.  
1.82.   The Panel  gave careful consider ation to  the parties' comments,  the technological tools 
available to them, the situation caused by the pandemic , and the availability of both the panelists 
and the experts.  
1.83.   On 28 October  2020, the Panel informed the parties that it wished to hold its meeting with 
the parties and experts  virtual ly (through the Cisco Webex platform), noting the importance of 
having a direct exchange (albeit virtually) between the parties and the experts, as well as between 
the experts themselves, through the Panel, which would not be achieved through anoth er written 
exchange . As noted above, t he Panel considered that  it would be best to proceed with its meeting 
with the  parties and  experts before the end of 2020. The Panel therefore proposed dates for the 
meeting to the parties, and asked the m to indicate w hether they could participate in the Panel's 
meeting with the parties and experts on the proposed dates.  
1.84.   On 30 October  2020, the parties communicated their inability to attend the meeting on the 
proposed dates and asked the Panel to propose alternative dat es. 
1.85.   On 4 November  2020, the Panel proposed to the parties that its meeting with the parties and 
experts be held during the week of 14 -18 December  2020. The Panel also informed the parties that, 
because of the measures imposed by the Canton of Geneva , Switzerland,  in response to the 
pandemic, the meeting with the parties and experts would be conducted in a n entirely  virtual format, 
without the presence of delegates from the parties on WTO premises.  
 
66 Letter from Costa Rica to the Panel, dated 6  October  2020.  WT/DS524/R  
- 38 - 
  1.86.   On 9 November  2020, the parties confirmed their availab ility to attend the Panel's meeting 
with the parties and experts during the week of 14 -18 December  2020; and, on 12 November  2020, 
the Panel confirmed to the parties that the meeting would be held from 15 to 18  December  2020.  
1.87.   In preparation for its meeting  with the parties and experts, the Panel gave the parties an 
opportunity to submit advance written questions for the experts through the Panel . On 
1 December  2020, the parties sent the Panel advance questions for the experts . The questions were 
sent to the  experts on 2 December  2020. 
1.88.   On 12 December  2020, the expert  Ricardo Flores Pedauyé informed the Panel that he could 
not attend its meeting with the parties and experts for health reasons . On 13 December  2020, the 
Panel proposed to the parties to go ahead with the meeting scheduled for 15 -18 December  2020 
with the three experts who were available, focusing on the questions sent to them . The Panel said 
that it would subsequently try to find a date in early 2021 for an additional meeting day with the 
four experts  present, at which Mr Flores Pedauyé could respond to the questions for him, and the 
other three experts would have the opportunity to speak, if they so wished . On 14 December  2020, 
the parties indicated their agreement to proceed in the manner prop osed by the Panel . 
1.89.   The Panel held a meeting with the parties and experts from 15 to 18  December  2020 with the 
three experts who were available, focused on the questions sent to them . 
1.90.   On 20 December  2020, the Panel received news of the tragic  death of Professor Dr  Flores 
Pedauyé and informed the parties accordingly .67 
1.91.   On 14 January  2021, the Panel suggested to the parties  that a new expert be found with 
knowledge of area  "b" (ASBVd), who could respond orally to the questions of the Panel and the 
parties on a n additional meeting day . The Panel put forward for the consideration of the parties the 
name of an expert whose information had been gathered  during the expert selection process 
undertaken between 2019 and 2020, but who had not been available on the date originally chosen 
for the Panel's meeting with the parties and experts.  
1.92.   On 19 January  2021, in response to the Panel's suggestion, Mexico said that it did not consider 
it necessary to nominate a new expert in area  "b" (ASBVd) and devote an additional day solely to 
that expert, but that it could examine the possibility if Costa  Rica thought it indispensable to hold 
the remaining  meeting with a new expert . On 21 January  2021, in its comments  on Mexico's 
comments, Costa  Rica stated that it agreed with Mexico that it was not necessary to nominate a new 
expert . 
1.93.   Furthermore , on 19 January  2021, in response to the Panel's suggestion , Costa  Rica said that 
Ricardo Flores Pedauyé 's contributions , as they had been set out in writing in his  responses  to the  
questions of the Panel and the parties, could not be the subject of any oral proceedings which were 
needed  to elaborate on the inputs provided . Costa  Rica therefore understood that the Panel should 
weigh Mr Flores Pedauyé's contributions  differently from those provided by the other experts, which, 
according to Costa  Rica, had been context ualized , qualified  and expanded upon orally by the experts.  
1.94.   On 21 January  2021, in its observations on Costa  Rica's comments, Mexico maintained that 
the Panel should reject Costa  Rica's attempt to detract from the value of the responses  provided by 
Mr Flores Pedauyé . Mexico said that when evaluating the relevance, acceptability and weight of Mr 
Flores Pedauyé 's advice , the Panel should consider the degree to which the expert's responses  
answered the technical and scientific questions that he had been asked on ASBVd and its di agnostic 
methods, and that, therefore, the fact that Mr Flores Pedauyé  had been unable to participate in the 
Panel's meeting with the parties and experts should in no way affect the value of the work 
undertaken throughout the proceedings, nor oblige the Pa nel to weigh  his written responses  
differently . Mexico added that Mr Flores Pedauyé's written responses  were invaluable because they 
were highly specific, they should therefore also be considered in light of the evidence on record . 
1.95.   On the same date, in its  observations on Mexico's comments, Costa Rica reiterated that the 
inputs provided by the expert Ricardo Flores Pedauyé  should be assessed by assigning a particular 
 
67 The Panel wishes to express its sincere condolences on the tragic death of Prof Dr Ricardo Flores 
Pedauyé, as well as its deep appreciation for the advice received.  WT/DS524/R  
- 39 - 
  value to the fact that they were not subject to the evidentiary action to which the inputs of other 
experts were subject . For Costa Rica, the fact could not be ignored that these inputs could not be 
explained, contextualized, qualified and expanded upon orally at the Panel's meeting with the 
experts, or that they were not the focus of the exchan ge of views between the Panel, the parties 
and the other experts . 
1.96.   On 29 January  2021, the Panel informed the parties that it would not seek advice from an 
additional expert, after considering the opinion of both parties that it was not necessary to nominat e 
a new expert . The Panel also said that it had taken note of Costa  Rica's observation on Ricardo  Flores 
Pedauyé's contributions, as well as Mexico's comments in that regard, and that it would give any 
explanation that it considered necessary on the matter  in its Report.  
1.97.   On 5 February  2021, the Panel sent the parties and experts the transcript of its meeting with 
the parties and experts, asking them to verify that the transcript accurately reflected the information 
they had provided . After receiving their comments, the Panel sent the final version of the transcript 
to the parties on 26 May 2021. 
1.3.3.6   Consultation with the IPPC Secretariat  
1.98.   In its decision on the need to seek scientific or technical advice from individual experts and/or 
relevant international organizations or bodies, dated 1 8 October  2019, the Panel informed the 
parties that it had not yet made a decision on whether to seek scientific or technical advice directly 
from any of the relevant international organizations or bod ies, and that it would make that decision 
at a later date .68 
1.99.   On 5 February  2020, the Panel informed the parties that it had taken the decision to consult 
the IPPC Secretariat in writing, particularly with regard to the meaning, scope and application of the 
ISPMs, and invited them to propose written questions for the IPPC Secretariat . The Panel stated that 
it would explain, in detail, the grounds for its decision to consult the IPPC Secretariat in writing in 
its decision concerning potential experts.  
1.100.   On 1 4 February  2020, the Panel issued, within its decision on the selected experts, its 
decision on the need to seek scientific or technical advice from relevant international organizations 
or bodies . The Panel explained that as the ISPMs, which were at the core of this dispute, had been 
developed in the framework of the IPPC, the IPPC Secretariat might be in a good position to assist 
the Panel on the meaning, scope and application of ISPMs . The Panel had therefore taken a decision 
to consult the IPPC Secretariat on area "d" (the meaning, scope and application of ISPMs) . The Panel 
considered that written consultation with the IPPC Secretariat, without its participation at the 
meeting with the experts, would be sufficient for scope of the consultation possible with the 
IPPC Secretariat, and would allow the meeting with the experts to be conducted more 
expeditiously.69 
1.101.   Also on 1 4 February  2020, Costa  Rica sent a letter to the Panel, asking it to indicate to the 
parties which expert from the IPPC Secretariat would answ er the Panel's questions and to make 
every effort to safeguard due process, given that a Mexican official was the Director of the 
Commission on Phytosanitary Measures (CPM) Bureau . On 19 February  2020, Mexico commented 
on Costa  Rica's request, stating that  it agreed with Costa  Rica on the importance of the Panel taking 
the necessary steps to safeguard the principles of transparency and due process, but that the 
impartiality of the IPPC Secretariat's responses would not be affected by the membership of the 
CPM Bureau . Mexico agreed with Costa  Rica's concern and that the IPPC should disclose the names 
of the persons who would be responsible for answering the questions.  
1.102.   On 3 March  2020, in response to the concerns raised  by the parties , the Panel informed the m 
that it would prepare a very limited number of questions for the IPPC  Secretariat , which would be of 
a general nature and the answers to which would not require detailed knowledge of the dispute . The 
Panel stated that  it would ask the IPPC Secretariat to treat th e request as confidential and for the 
questions be answered by the Secretariat itself, without assistance from the CPM Bureau or the 
 
68 Panel decision on the need to seek scientific or technical advice from in dividual experts and/or 
relevant international organizations or bodies, dated 18  October  2019, para.  2.11. 
69 Panel decision on selected experts and on the need to seek scientific or technical advice from relevant 
international organizations or bodies, date d 14 February  2020, paras.  3.1-3.3. WT/DS524/R  
- 40 - 
  committees, in accordance with both its rules of conduct and those of the WTO . The Panel stated 
that it did not consider it appropriate to disclose the name of the person from the IPPC Secretariat 
who would answer the Panel's questions, as the answer would be given on behalf of the Organization 
rather than an individual working for that Organization.  
1.103.   On 5 March  2020, the Panel sent a limited number of questions to the IPPC Secretariat on 
the meaning, scope and application of ISPMs . The IPPC Secretariat sent its responses to the Panel's 
questions on 1 4 May 2020. The parties sent their comments on the IPPC Secretariat's responses on 
3 June 2020, and their views on the other party's comments on the IPPC  Secretariat's responses on 
10 June 2020. 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns certain measures described by Mexico as "those by which  Costa Rica 
prohibits or restricts , either jointly or individually,  the importation of fresh avocados for consumption 
from Mexico".70 
2.2.  In its panel request, Mexico identified the following five instruments as measures:  
1. Resolutions DSFE -003-2018 and DSFE -002-2018 issued by the 
State  Phytosanitary Service of the Ministry of Agriculture and Livestock of Costa  Rica, 
dated 29  January  2018.  
2. Reports ARP -002-2017 and ARP -006-2016 prepared by the Pest Risk Analysis 
Unit of the State Phytosanitary Service, dated 1 0 July 2017, as well as 
Manual  NR-ARP-PO-01_M -01, containing the qualitative methodology applied in the said 
risk analyses.71 
2.3.  Mexico expressly noted that its panel request relates to the aforementioned measures at issue 
and to any additional measures that amend, supersede, update or replace them.72 
2.4.  The instruments identified by Mexico as the measures at issue are described below , reflecting 
their own text . The description in this section seeks to present the content of the aforementioned 
instruments, and does not imply any judg ement , analysis or finding in respect of those instruments . 
2.1.1   Manual for conducting qualitative pest risk analyses by entry pathway 
(Manual  NR-ARP-PO-01_M -01) 
2.1.1.1   Introduction, purpose and scope  
2.5.  The Manual for conducting qualitative pest risk analyses by entry pathway (Manual 
NR-ARP-PO-01_M -01)73, of 10 May 2016, prepared by the Pest Risk Analysis Unit (UARP) of the 
State  Phytosanitary Service (SFE), was the instrument used as a guide for preparing 
Reports  ARP-002-2017 and ARP -006-2016.  
2.6.  Manual NR -ARP-PO-01_M -01 is described as a guide for determining pest risk analysis [PRA] 
procedures74, "[w]ith a view to complying more efficiently with the provisions established in the 
[SPS] Agreement in relation to the harmonization of the use of international standards, in this case 
 
70 Mexico's panel request, WT/DS524/2, p. 2.  
71 Mexico's panel request, WT/DS524/2, p. 2.  
72 Mexico's panel request, WT/DS524/2, p. 2.  
73 Servicio Fitosanitario del Estado de Costa Rica, Departamento de Control Fitosanitario , "Manual para 
la elaboración de análisis cualitativo de riesgo de plaga por vía de entrada", NR -ARP-PO-01_M -01 (2016) 
(Manual NR -ARP-PO-01_M -01), (Exhibit MEX -104). Costa Rica stated  that the Manual had been repealed by a 
subsequent revision and was therefore no longer in force. (Costa Rica, reply to Panel question No.  78, para.  3 
(citing Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa  Rica, "Manua l para la 
elaboración de análisis cualitativo de riesgo de plagas", NR -ARP-M-01, aprobado el 16  de marzo de 2018 (New 
Manual, NR -ARP-M-01), (Exhibit CRI -105))). 
74 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  WT/DS524/R  
- 41 - 
  those related to [PRA]" .75 Manual NR -ARP-PO-01_M -01 identifies those s tandards as International 
Standards for Phytosanitary Measures (ISPMs) and refers specifically to ISPM  No. 2, "Framework for 
pest risk analysis" (2007)76, and ISPM No. 11, "Pest risk analysis for quarantine pests" (2013).77, 78 
2.7.  The purpose of  Manual NR -ARP-PO-01_M -01 is described as follows : "[to g]uide the risk analyst 
in conducting a PRA, through an assessment of the available scientific evidence that would enable 
them to determine whether an organism is a regulated pest, to evaluate its risk and to identify risk 
management options, in compliance with the Phytosanitary Protection Law and international 
standards".79 
2.8.  Manual NR -ARP-PO-01_M -01 also states that its content "applies to all Risk Analysis Unit 
officials when conducting qualitative pest analys es by entry pathway".80 
2.9.  Manual NR -ARP-PO-01_M -01 asserts  that the PRA process comprises three stages:  
• Stage 1 : Initiation.  
• Stage 2 : Pest risk assessment.  
• Stage 3 : Pest risk management.81 
2.1.1.2   Stage 1 : Initiation  
2.10.   Manual NR -ARP-PO-01_M -01 states that the initiati on stage entails identifying organisms and 
pathways82 that may be considered for the pest risk assessment in relation to the identified PRA 
area, and that the process may be initiated in three situations : (i) where a pathway that presents a 
potential pest hazard is identified ; (ii) where a pest that may require phytosanitary measures is 
identified ; and (iii) where a decision is made to review or revise phytosanitary measures or policies.83 
2.11.   Manual NR -ARP-PO-01_M -01 states that the initiation stage involves four steps:  
a. Determining whether an organism is a pest84; 
b. Defining the PRA area85, 86; 
c. Evaluating any previous PRA87; and 
 
75 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
76 Secretaría de la CIPF, Marco para el análisis de riesgo de plagas , NIMF No.  2 (Roma, FAO en nombre 
de la Secretaría de la CIPF, adoptada en 2007, publicada en 2016) (ISPM No.  2), (Exhibit MEX -72). 
77 Secretaría de la CIPF, Análisis de riesgo de  plagas para plagas cuarentenarias , NIMF No.  11 (Roma, 
FAO en nombre de la Secretaría de la CIPF, adoptada en 2013, publicada en 2017) (ISPM No.  11), 
(Exhibit  MEX-77). 
78 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
79 Manual NR -ARP-PO-01_M -01, (Exhibi t MEX -104), p. 1.  
80 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
81 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 3.  
82 Manual NR -ARP-PO-01_M -01 defines the pathway, in accordance with ISPM No.  5 "Glossary of terms", 
as "[a]ny means that allows the entry or spread of a pest". (Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), 
p. 3). 
83 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 4 (referring to ISPM No.  2, (Exhibit MEX -72), 
section  1). 
84 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 4 (referring to ISPM No.  2, (Exhibit MEX -72), 
section  1.2). 
85 Manual NR -ARP-PO-01_M -01 defines the PRA area, in accordance with ISPM No.  5 "Glossary of 
terms", as an "[a]rea in relation to which a pest risk a nalysis is conducted". (Manual NR -ARP-PO-01_M -01, 
(Exhibit MEX )-104, p. 2).  
86 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 4 (referring to ISPM No.  2, (Exhibit MEX -72), 
section  1.3). 
87 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 4 (referring to ISPM  No. 2, (Exhibit MEX -72), 
section  1.4). WT/DS524/R  
- 42 - 
  d. Conclusion.88 
2.12.   Manual NR -ARP-PO-01_M -01 states that before conducting a new PRA, a check should be 
made as to whether the organism, pest or pathway has already been subjected to the PRA process ; 
the validity of any existing analysis should be checked ; and its relevance to the PRA area established 
should be confirmed .89 Manual NR -ARP-PO-01_M -01 adds that the possibility of usi ng a PRA of a 
similar organism, pest or pathway may also be investigated.90 
2.13.   Manual NR -ARP-PO-01_M -01 states  that a list is drawn up of the pests associated with the 
crop, in order to determine which quarantine pests91 will be subject to Stage 2 . The list s hould 
include the following information:  
a. Scientific name of the pest , indicating the name of who discovered it and its taxonomic 
status . 
b. Indication as to whether the pest may follow the pathway (yes or no) . 
c. Indication as to whether the pest is regulated in Costa  Rica (yes or no) . 
d. Indication as to whether the pest is present in Costa  Rica (yes or no) .92 
e. Where the pest is not present in the country, observations or comments explaining why it 
is or is not to be included in the subsequent assessment ; primary references should be 
provided as technical justification.93 
2.14.   Manual NR -ARP-PO-01_M -01 also states, with regard to the list, that where the pest is 
regulated or not present in the country, references should be i ncluded concerning the pest's 
association with the commodity, together with comments on : (i) whether the crop is the sole, 
principal or secondary host or an occasional host ; (ii) whether the pest is of economic importance ; 
(iii) whether a PRA or datasheet for the pest already exists ; (iv) whether the pest has previously 
been the subject of a phytosanitary requirement ; and (v) any other information that is important 
for deciding whether the pest is to be included in the assessment.94 
2.15.   Manual NR -ARP-PO-01_M -01 states that if, at this stage, no potential quarantine pests are 
identified, the PRA is halted, and the only requirement imposed is an inspection or a phytosanitary 
certificate from the country of origin.95 
2.16.   Manual NR -ARP-PO-01_M -01 also states that it is important to identify the reasons for 
including or not including the pests examined at the pre -analysis stage in a subsequent study, that 
the information for the PRA can come from various sources, and that, to conduct the qualitative risk 
analysis, sources  of information such as databases and specialized literature should be consulted.96 
2.17.   Manual NR -ARP-PO-01_M -01 adds that for pests that are to be considered in the risk 
assessment, a datasheet should be drawn up, or else the technical information can be incl uded in 
the risk assessment document.97 
 
88 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 4 (referring to ISPM No.  2, (Exhibit MEX -72), 
section  1.5). 
89 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 4 -5. 
90 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 5.  
91 Manual NR -ARP-PO-01_M -01 defines a quarantine pest, in accordance with ISPM No.  5 "Glossary of 
terms", as a "pest of potential economic importance to the area endangered thereby and not yet present there , 
or present but not widely distributed and being officially controlled". (Manual NR -ARP-PO-01_M -01, 
(Exhibit  MEX-104), p. 3).  
92 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 5.  
93 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
94 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 5.  
95 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
96 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
97 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  WT/DS524/R  
- 43 - 
  2.18.   Manual NR -ARP-PO-01_M -01 also states that "[p]ests that are considered to be of potential 
economic importance and that meet the geographical and regulatory criterion of ISPM No.  11, 
FAO, 2004, should be included in this list for consideration during Stage 2".98 
2.1.1.3   Stage 2 : Pest risk assessment  
2.19.   Manual NR -ARP-PO-01_M -01 states  that the pest risk assessment99 process can be broadly 
divided into three interrelated steps:  
a. pest categorization;  
b. assessment of the pr obability of introduction100 and spread101; and 
c. assessment of potential economic consequences and environmental impacts.102 
2.1.1.3.1   Pest categorization  
2.20.   Manual NR -ARP-PO-01_M -01 indicates that pest categorization consists of identifying pests 
that require subsequent a nalysis, that is,  quarantine pests likely to follow the pathway, and that 
consideration should therefore be given to : (i) whether the pest is associated with the commodity 
to be imported ; (ii) whether the pest is associated with the part of the plant to be  imported .103 
Manual NR -ARP-PO-01_M -01 adds that, at this stage, a separate list is presented indicating the 
quarantine pests that are presumed likely to follow the entry pathway.104 
2.21.   Manual NR -ARP-PO-01_M -01 states that once the quarantine pests presumed likely to follow 
the entry pathway have been identified, the risk analysis continues and consideration is given to the 
probability of introduction and spread and the economic consequences in accordance with the 
determination of the risk factors to  be considered . According to Manual NR -ARP-PO-01_M -01, for 
each risk factor, each pest is assigned one of the following probability values : (i) high (3 points) ; 
(ii) medium  (2 points) ; (iii) low (1 point) ; (iv) negligible (0 points) . When this is done, all  the risk 
factor values are added together to obtain a final score and to establish a rating depending on the 
value range.105 
2.22.   Manual NR -ARP-PO-01_M -01 specifies that "[ i]n all instances where sufficient  information is 
not available , either following one's o wn research or because the exporting country 's information is 
insufficien t, the uncertainty should be taken into account and the probability should be calculated 
as high".106 
2.1.1.3.2   Assessment of the probability of introduction and spread  
2.23.   Manual NR -ARP-PO-01_M -01 states that pest introduction is comprised of both entry and 
establishment, and that assessing the probability of introduction requires an analysis of each of the 
pathways with which a pest may be associated from its origin to its establishment in the PRA area.107 
 
98 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
99 Manual NR-ARP-PO-01_M -01 defines pest risk assessment, with  reference to  ISPM No.  5 "Glossary of 
terms", as the "[e]valuation of the probability of the introduction and spread of a pest and the magnitude of 
the associated potential economic consequences". (Manual  NR-ARP-PO-01_M -01, (Exhibit MEX -104), p. 2).  
100 Manual NR -ARP-PO-01_M -01 defines introduction, with reference to ISPM No.  5 "Glossary of terms", 
as the "[e]ntry of a pest resulting in its establishment". (Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), 
p. 2). 
101 Manual NR -ARP-PO-01_M -01 defines spread, with reference to ISPM No.  5 "Glossary of terms", as 
the "[e]xpansion of the geographical distribution of a pest within an area". (Manual NR -ARP-PO-01_M -01, 
(Exhibit  MEX-104), p. 2).  
102 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
103 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
104 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 7.  
105 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 7.  
106 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 7.  
107 Manual NR -ARP-PO-01_M-01, (Exhibit MEX -104), p. 8.  WT/DS524/R  
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  2.24.   Manual NR -ARP-PO-01_M -01 states that the assessment of probability of spread is based 
primarily on biological considerations similar to those for entry and establishment.108 
2.1.1.3.2.1   Probability of entry of a pest  
2.25.   Manual NR -ARP-PO-01_M -01 states that the probability of entry of a pest depends on the 
pathways from the exporting country to the destination, and the frequency and quantity of pests 
associated with them . Manual NR -ARP-PO-01_M -01 adds that the following two aspects should be 
considered and addres sed as separate points when conducting the final assessment on the 
probability of entry : (i) the probability of the pest reaching the commodity 's entry point (section  A, 
B and C) ; and (ii)  the probability of the pest reaching a suitable host once it has pa ssed the entry 
point (section D).109 
2.26.   The probability of the pest reaching the commodity's entry point includes:  
a. Probability of the pest being associated with the pathway at origin (section A) . The risk 
factors to consider , according to Manual NR -ARP-PO-01_M -01, are: 
i. Prevalence of the pest in the source area. A high probability value (3 points) is assigned 
where the pest is widely distributed or present without details of its distribution ; a 
medium  value (2 points) where it is present but its distribution is limited ; and a low 
value (1 point) where it is present but very few cases are reported.110 
ii. Occurrence of the pest in a life stage that would be associated with commodities, 
containers or conveyances . A high probability value (3 points) is assigned where a pest in 
more than one life stage may occur with the commodity ; a medium  value (2  points) where 
a pest in only one life stage may occur with the commodity ; and a low value (1  point) 
where it is unlikely  that a pest in any life stage may occur with the commodity, but there 
is a risk.111 
iii. Volume and frequency of movement along the pathway . A high probability value 
(3 points) is assigned where the quantity of the imported commodity estimated in 
standard conta iner units of 12 metres in length is more than 100 containers per year ; 
a medium  value (2 points) where it is between 10 and 100 containers per year ; and a 
low value (1 point) where it is between 1 and 10 containers per year . For propagati on 
material, the probability of this risk factor will always be high.112 
iv. Seasonal timing . A high probability value (3 points) is assigned where the pest is 
present all year round at the place of origin or where no information is available ; a 
medium  value (2 points) where it  is present during two or three seasons of the year 
at the place of origin ; and a low value (1 point) where it is present during only one 
season of the year at the place of origin.113 
v. Pest management, cultural and commercial procedures applied at the place of origin . 
A high probability value (3 points) is assigned where no information is available or 
where no proper management is known to exist ; a medium  value (2 points) where 
some form of management is known to exist ; and a low value (1 point) where good 
management is known to exist.114 
b. Probability of survival during transport or storage (section B) . The risk factors to consider , 
according to Manual NR -ARP-PO-01_M -01, are: (i) speed and conditions of transport and 
duration of the life cycle of the pest in relation to time in transport and storage ; (ii) vulnerability 
of the life stages during transport or storage ; (iii) prevalence of pest s likely to be associated 
with a consignment ; (iv) commercial procedures applied to consignments in the country of 
 
108 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 8.  
109 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 8.  
110 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 9.  
111 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 9.  
112 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 9.  
113 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 9 -10. 
114 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 10.  WT/DS524/R  
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  origin,  country of destination, or in transport or storage . A high probability value (3 points) is 
assigned where information was found showing that the pest can survive transportation ; a 
medium  value (2 points) where no information was found showing that the pes t does not 
survive transportation, but where the information found indicates that it could survive ; and a 
low value (1 point) where information was found showing that the pest does not survive 
transportation.115 
c. Probability of pest surviving existing pest m anagement procedures (section C) . The risk 
factors to consider , according to Manual NR -ARP-PO-01_M -01, are: 
i. That the pest may survive post -harvest treatment (section C.1) . A high probability 
value (3 points) is assigned where information was found showing that the pest can 
survive post -harvest treatment ; a medium  value (2 points) where no information was 
found showing that the pest does not survive post -harvest treatment, but where the 
information found indicates that it could survive ; and a low value (1 point) where 
information was found showing that the pest does not survive post -harvest 
treatment.116 
ii. That the pest will go undetected at the entry point (paragraph C.2) . A high probability 
value (3 points) is assigned where the pest cannot be detected at th e entry point 
through inspection, or requires specific tests ; a medium  value (2 points) where visual 
magnification equipment is required to detect the pest ; and a low value (1 point) where 
the pest is easily detected during the inspection process.117 
2.27.   The probability that the pest will reach a suitable host  once it has passed the entry point 
includes : 
a. Probability of transfer to a suitable host (section D) . The risk factors to consider , according  
 to Manual NR -ARP-PO-01_M -01, are: 
i. Dispersal mechanisms . A high probability value (3 points) is assigned where the pest 
has suitable dispersal mechanisms, and vectors that are present in the country ; a 
medium  value (2 points) where it has suitable dispersal mechanisms or vectors present 
in the country ; and a low valu e (1 point) where the dispersal mechanisms are 
unsuitable and the pest has no vectors or they are not present in the country.118 
ii. Whether the imported commodity is to be sent to a few or many destination points in the 
PRA area . A high probability value (3 po ints) is assigned where the commodity is to be 
sent to many destination points (more than five) or where no information is available in 
this regard ; a medium  value (2 points) where it is to be sent to a few destination points 
(less than five) ; and a low va lue (1 point) where it is to be sent to only one destination 
point. For propagati on material, the probability of this risk factor will always be high.119 
iii. Proximity of entry, transit and destination points to suitable hosts . A high probability 
value (3 points) is assigned where it is highly likely that host species exist relatively 
close to the entry, transit or final destination points ; a medium  value (2 points) where 
it is fairly likely that host species exist relatively clos e to the entry, transit or final 
destination points ; and a low value (1 point) where it is unlikely that host species exist 
relatively close to the entry, transit or final destination points . For propagati on 
material, the probability of this risk factor wi ll always be high.120 
iv. Time of year at which import takes place . A high probability value (3 points) is assigned 
where import will take place throughout the year or where information is not available ; 
 
115 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 10.  
116 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 10 -11. 
117 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 11.  
118 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 11.  
119 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 12.  
120 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 12.  WT/DS524/R  
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  a medium  value (2 points) where import will take place at  certain times of the year ; 
and a low value (1 point) where import will take place once a year.121 
v. Intended use of the commodity . A high probability value (3 points) is assigned where 
the intended use of the commodity is its reproduction ; a medium  value (2 points) 
where the intended use of the commodity is consumption ; a low value (1 point) where 
the intended use of the commodity is the production of other goods (raw material) ; 
and a negligible value (0 points) where the intended use of the commodity is 
consumption, but it is already packaged and ready to be consumed . In the latter  case, 
the commodity is usually processed.122 
vi. Risks from by -products and waste . A high probability value (3 points) is assigned 
where a high risk is posed by by -products and waste ; a medium  value (2 points) where 
there is some risk from by -products and waste ; a low value (1 point) where there is 
little risk from by -products and waste ; and a negligible value (0 points) where there is 
very little risk from by -products and waste.123 
2.28.   Manual NR -ARP-PO-01_M -01 states  that the data obtained regarding the probability of the 
risk of entry are used to create a table (Table 4) showing the average probability score for each of 
the sections A (1 to 3 points), B (1 to 3 points), C.1 (1 to 3 poin ts), C.2 (1 to 3 points) 
and D (1 to 3 points), and the cumulative figure equivalent to the sum of the average probability 
scores obtained for sections A, B, C.1, C.2 and D, which is interpreted as : high (13 to 15 points) ; 
medium  (9 to 12 points) ; low (5 t o 8 points) ; or negligible (less than 5 points).124 
2.1.1.3.2.2   Probability of establishment  
2.29.   Manual NR -ARP-PO-01_M -01 states that in order to estimate the probability of establishment 
of a pest, reliable biological information should be obtained from the areas where th e pest currently 
occurs .125 The Manual notes that the factors to consider include:  
a. The availability of suitable hosts, alternate hosts and vectors in the PRA area (section  A). 
A high probability value (3 points) is assigned where the pest attacks multiple s pecies 
within multiple plant families ; a medium  value (2 points) where there the pest attacks 
multiple species within a single plant family ; and a low value (1 point) where the pest 
attacks a single species or multiple species within a single genus . In add ition, a high 
probability value (3 points) is assigned where the only host occupies a sown area 
exceeding 20,000 hectares ; and a medium  value (2 points) where the sown area is 
5,000  to 20,000 hectares in size . Should the vector exist in the country, 1 point will be 
added in the case of medium  and low probability, while in the case of propagati on material, 
the probability is always deemed to be  high.126 
b. Environment al suitability (section B) . A high probability value (3 points) is assigned where 
there is evidence that the pest  adapt s to ecological and climatic conditions similar to those 
in crop -growing areas in Costa  Rica; a medium  value (2 points) where the evidence of 
adaptability to  similar ecological and climatic conditions is not conclusive ; and a low value 
(1 point) where there is evidence the pest does not adapt to ecological and climatic 
conditions similar to those in crop -growing areas in Costa  Rica. 
Manual  NR-ARP-PO-01_M -01 indicates that where none of the quarantine pests are able 
to establish in the PRA area because of unsuitable climatic conditions or hosts, there is no 
need to continue the PRA.127 
c. Cultivation  practices and control measures (section C) . A ccording to 
Manual  NR-ARP-PO-01_M -01, the following considerations apply when determining the 
probability of this risk factor : (i) the cultivation practices  employed in the country are very 
 
121 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 12.  
122 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 12.  
123 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 13.  
124 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 13.  
125 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 13.  
126 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 13 -14. 
127 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 14.  WT/DS524/R  
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  different to those employed in the country of origin ; (ii) there are no natural enemies in 
the country ; (iii) proper control of the pest is not feasible ; (iv) suitable eradication 
methods do not exist or are not available in the country . A high probability value (3 points) 
is assigned where three or more of these factors are present ; a medium  value (2 points) 
where one or two of these factors are present ; and a low value (1 point) where none of 
these factors are present.128 
d. Other characteristics of the pest affecting the probability of establishment (section D) . 
Manual  NR-ARP-PO-01_M -01 states that in order to analyse the spread potential of a pest 
in the PRA area, the following aspects should be taken into account : (i) pest reproduction 
patterns ; (ii) inherent capacity for movement ; (iii) biotic and abiotic factors affecting 
dispersal ability . A high probability value (3 points) is assigned where the pest has high 
biotic potential and there is evidence that it has the ability to spread rapidly ; a medium  
value (2 points) where the pest has a high reproductive capacity or the species has the 
ability to spread rapidly ; and a low value (1 point) where the pest does not have high 
reproductive potential or the ability to spread rapidly.129 
2.30.   Manual NR -ARP-PO-01_M -01 states  that the data obtained concerning probability of 
establishment are used to create a table (Table 5) showing the average probability score obtained 
for each of the sections A (1 to 3 points), B (1 to 3 points), C (1 to 3 points) and D (1 to 3 points), 
and the cumulative figure equivalent to the sum of the average probability scores obtained for  
sections  A, B, C and D, which is interpreted as : high (10 to 12 points) ; medium  (7 to 9 points) ; or 
low (4  to 6 points).130 
2.1.1.3.2.3   Probability of spread after establishment  
2.31.   Manual NR -ARP-PO-01_M -01 states that a pest with a high potential for spread may also have 
a high potential for establishment, and possibilities for its successful containment and/or eradication 
are more limited .131 The risk factors to consider , according t o Manual NR -ARP-PO-01_M -01, are: 
a. Suitability of the natural and/or managed environment for natural spread of the pest 
(section A) . A high probability value (3 points) is assigned where there is evidence that 
ecological and climatic conditions similar to th ose in crop -growing areas in Costa  Rica are 
suitable for the pest ; a medium  value (2 points) where the evidence of the suitability of 
similar ecological and climatic conditions is not conclusive ; and a low value (1 point) where 
there is evidence that ecolo gical and climatic conditions similar to those in crop -growing 
areas in Costa  Rica are not suitable for the pest.132 
b. Presence of natural barriers (section B) . A high probability value (3 points) is assigned 
where there are not many natural barriers in the c ountry to limit spread ; a medium  value 
(2 points) where there are some natural barriers in the country to limit spread ; and a low 
value (1 point) where there are numerous natural barriers in the country to limit spread . 
Manual NR -ARP-PO-01_M -01 clarifies  that account should be taken of the fact that, in 
Costa  Rica, this factor would always be deemed to be  high because of the country's size 
and geographical conditions.133 
c. Potential for movement with commodities or conveyances (section C) . 
Manual  NR-ARP-PO-01_M -01 states that in this case, consideration may be given to 
whether there is evidence that the pest is able to move quickly from one place to another 
either of its own accord, naturally or through human activity with commodities or 
conveyances . A high probability value (3 points) is assigned where the two factors are 
present ; a medium  value (2 points) where one of the factors is present ; and a low value 
(1 point) where none of the factors are present.134 
 
128 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 15.  
129 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 15.  
130 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 15 -16. 
131 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 16.  
132 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 16.  
133 Manual NR -ARP-PO-01_M -01, (Exhibit M EX-104), p. 16.  
134 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 17.  WT/DS524/R  
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  d. Intended use of the commodity (section D) . A high probability value (3 points) is assigned 
where the intended use of the commodity once the pest is established is reproduction ; a 
medium  value (2 points) where the intended use of the commodity once the pest is 
established is consumption ; and a low value (1 point) where the intended use of the 
commodity once the pest is established is the production of other goods (raw material).135 
e. Potential vectors in the PRA area (section E) . A high probability value (3 points) is assigned 
where all the potential v ectors exist ; a medium  value (2 points) where only some of the 
potential vectors exist ; and a low value (1 point) where there are no vectors in the country 
but they are likely to  be introduced  easily .136 
f. Potential natural enemies of the pest in the PRA area (section F) . A high probability value 
(3 points) is assigned where there are no potential natural enemies in the country and 
their introduction is unlikely ; a medium  value (2 points) where potential natural enemies 
exist in the country ; and a low valu e (1 point) where known natural enemies exist.137 
2.32.   Manual NR -ARP-PO-01_M -01 states  that the data obtained concerning the probability of 
spread are used to create a table (Table 6) showing the average probability score obtained for each 
of the sections A (1 t o 3 points), B (1 to 3 points), C (1 to 3 points), D (1 to 3 points), E  (1 to 3 points) 
and F (1 to 3 points), and the cumulative figure equivalent to the sum of the average probability 
scores obtained for sections A, B, C, D, E and F, which is interpreted  as: high (15 to 18 points) ; 
medium  (10 to 14 points) ; or low (6 to 10 points).138 
2.33.   Manual NR -ARP-PO-01_M -01 states , by way of conclusion on the probability of introduction 
and spread, that the probability results are set out in the aforementioned score tabl es, and that in 
each case the result may be summarized with a brief outline of the rationale for the result.139 
2.1.1.3.3   Assessment of potential economic consequences  
2.34.   Manual NR -ARP-PO-01_M -01 states that, wherever appropriate, quantitative data that will 
provide mon etary values should be obtained, but that qualitative data may also be used, and 
consultation with an economist may be useful . Manual NR -ARP-PO-01_M -01 indicates that in many 
instances, detailed analysis of the estimated economic consequences is not necessary if there is 
sufficient evidence or it is widely agreed that the introduction of a pest will have unacceptable 
economic consequences, including environmental consequences . Manual  NR-ARP-PO-01_M -01 
states that in such cases, risk assessment will pr imarily focus on the probability of introduction and 
spread.140 
2.35.   Manual NR -ARP-PO-01_M -01 states that the pests introduced may have a variety of economic 
effects : (i) crop losses, in yield and quality ; (ii) effects on domestic and export markets, including, 
in particular, effects on export market access ; (iii) changes to producer costs or input demands, 
including control costs ; (iv) changes to domestic or foreign consumer demand for a product resulting 
from quality changes ; (v) feasibility and cost  of eradication or containment ; (vi) capacity to act as 
a vector for other pests ; (vii) resources needed for additional research and advice ; (viii) social and 
other effects, e.g. tourism . The economic impact is deemed to be  high (3 points) where the pest 
causes at least five of the effects mentioned ; medium  (2 points) where it causes two to four of any 
of the effects mentioned ; and low (1 point) where it causes one or none of the effects mentioned.141 
2.36.   In order to determine the environmental effects, accordin g to Manual  NR-ARP-PO-01_M -01, 
the following factors are taken into consideration : (i) the introduction of a pest may cause harm to 
the environment and/or have a direct or indirect effect on protected species ; (ii) the introduction of 
a pest would encourage control programmes involving the use of toxic pesticides and affect 
integrated pest management programmes ; (iii) the introduction of a pest would encourage control 
programmes involving the release of non -native biological control agents . The envi ronmental impact 
 
135 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 17.  
136 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 17.  
137 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 17.  
138 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 17 -18. 
139 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 18.  
140 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 18.  
141 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 18 -19. WT/DS524/R  
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  would be high (3 points) with three of these factors ; medium  (2 points) with two of these factors ; 
and low (1  point) with one of these factors.142 
2.37.   Manual NR -ARP-PO-01_M -01 states, by way of conclusion on the assessment of economic 
consequen ces, that wherever appropriate, the output of this assessment should be in terms of a 
monetary value, and that the economic consequences can also be expressed qualitatively or using 
quantitative measures without monetary terms.143 
2.38.   Manual NR -ARP-PO-01_M -01 states that the data gathered on economic consequences are 
used to draw up a table (Table 7) showing the score obtained in terms of economic impact 
(1 to 3 points) and environmental impact (1 to 3 points), and that the sum of each economic and 
environmental  impact factor provides a cumulative figure that is interpreted as high (5  to 6 points) ; 
medium  (3 to 4 points) ; or low (2 points).144 
2.1.1.3.4   Degree of uncertainty  
2.39.   The Manual states that the estimation of the probability of introduction of a pest and of its 
econom ic consequences involves many uncertainties, and that it is important to document the areas 
of uncertainty and the degree of uncertainty in the assessment.145 
2.1.1.3.5   Conclusion of the pest risk assessment stage  
2.40.   Manual NR -ARP-PO-01_M -01 states  that in order to determine the pest risk potential for each 
pest assessed, the cumulative figures from the four tables are added together : (i) Table  4 – 
probability of entry (5 to 15 points) ; Table 5  – probability of establishment (4  to 12 points) ; Table 6 
– probability of spread (6 to 18 points) ; and Table 7  – assessment of economic consequences (2  to 6 
points) ; and a cumulative figure is obtained that is interpreted as a high probability of risk (40  to 51 
points) ; a medium  probability of risk (28 to 39 p oints) ; or a low probability of risk (17  to 27 
points).146 
2.1.1.4   Stage 3 : Pest risk management  
2.41.   Manual NR -ARP-PO-01_M -01 states that the conclusions from pest risk assessment are used 
to decide whether risk management is required and the strength of the measures to be used .147 
Manual NR-ARP-PO-01_M -01 indicates that the uncertainty identified in the assessment of economic 
consequences and of probability of introduction should also be taken into account  in and incorporated  
into the selection of appropriate pest management options .148 
2.1.1.4.1   Identification and selection of appropriate risk management options  
2.42.   Regarding the identification and selection of appropriate risk management options, Manual 
NR-ARP-PO-01_M -01 lists some of the measures most commonly applied to traded goods:  
a. Options for consignments, which may include any combination of the following measures : 
(i) inspection or testing for freedom from a pest ; (ii) prohibition of parts of the host ; 
(iii) a pre-entry or post -entry quarantine system ; (iv) specified conditions of preparation 
of the consignment ; (v) specified treatment of the consignment ; (vi) restrictions on end 
use, distribution and periods of entry of the commodity.149 
b. Options preventing or reducing infestation in the crop, which may incl ude the following 
measures : (i) treatment of the crop, field, or place of production ; (ii) restriction of the 
composition of a consignment so that it is composed of plants belonging to resistant or 
less susceptible species ; (iii) growing plants under speci ally protected conditions ; 
 
142 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 19.  
143 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 19.  
144 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 19 -20. 
145 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 20.  
146 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 20 -21. 
147 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 21.  
148 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 21.  
149 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 21 -22. WT/DS524/R  
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  (iv) harvesting of plants at a certain age or a specified time of year ; (v) production in a 
certification scheme.150 
c. Options ensuring that the area, place or site of production or crop is free from the pest, 
which may include the following measures : (i) pest-free area ; (ii) pest-free place of 
production or pest -free production site ; (iii) inspection of crop to confirm pest freedom.151 
d. Options for other types of pathways, for which the following factors should be consider ed: 
(i) natural spread of a pest, for which control measures applied in the area of origin, or , 
similarly,  containment or eradication, supported by suppression and surveillance, in the 
PRA area after entry of the pest could be considered ; (ii) measures for human travellers 
and their baggage, which could include targeted inspections, publicity and fines or 
incentives ; (iii) contaminated machinery or modes of transport, which could be subjected 
to cleaning or disinfestation.152 
e. Options within the importing country . Certain measures applied within the importing 
country may be used, and could include careful surveil lance to try and detect the entry of 
the pest as early as possible, eradication programmes to eliminate any foci of infestation 
and/or containment action to limit spread.153 
f. Prohibition of commodities . Manual NR -ARP-PO-01_M -01 states that where no satisfact ory 
measure to reduce risk to an acceptable level can be found, the final option may be to 
prohibit importation of the relevant commodities.154 
2.1.1.4.2   Risk management options according to risk assessment outcome  
2.43.   Manual NR -ARP-PO-01_M -01 states that, after assignin g pest risk potential, the risk assessor 
will set out possible options for managing the risk associated with importing the commodity 
concerned .155 Manual NR -ARP-PO-01_M -01 provides the following guidelines for interpreting the 
high, medium  or low rating:  
a. For the high risk rating, Manual NR -ARP-PO-01_M -01 states that the application of specific 
phytosanitary measures is recommended, that inspection at entry points is not considered 
sufficient to ensure health safety, and that measures may be required in addit ion to the 
phytosanitary certificate from the country of origin, such as : (i) the provenance of the 
commodity being an area free of a certain pest ; (ii) the provenance of the commodity 
being a production area free of a certain pest ; (iii) the treatment of the commodity with a 
chemical product or another type of treatment with a similar effect ; (iv) verification at 
origin where deemed necessary ; (v) any other measure deemed appropriate in accordance 
with the technical studies carried out.156 
b. For the medium  risk rating, Manual  NR-ARP-PO-01_M -01 states that it may be necessary 
to apply specific phytosanitary measures such as those mentioned above or that it may 
be enough for the consignment to be free of the pest.157 
c. For the low risk rating, Manual N R-ARP-PO-01_M -01 states that the pest does not require 
specific mitigation measures and that inspection at the entry point, to which all imports 
are subject, is expected to ensure sufficient phytosanitary security . According to Manual 
NR-ARP-PO-01_M -01, in  this case, the commodity will only require the phytosanitary 
certificate from the country of origin, specifying under additional declarations that the 
commodity is free of the pests concerned, where necessary.158 
 
150 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 22.  
151 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 22.  
152 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 23.  
153 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 23.  
154 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 23.  
155 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  
156 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  
157 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  
158 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  WT/DS524/R  
- 51 - 
  2.1.1.5   Datasheets  
2.44.   Manual NR -ARP-PO-01_M -01 also co ntains a guide to preparing datasheets for quarantine 
pests . A quarantine pest datasheet is defined as a compilation of the information needed to conduct 
a subsequent PRA .159 Manual NR -ARP-PO-01_M -01 suggests a format containing the following 
information:  
a. Common name of the pest in English and Spanish;  
b. Classification : Manual NR -ARP-PO-01_M -01 states that the taxonomic unit for the pest is 
generally species ; that the use of a higher or lower taxonomic level should be supported 
by scientifically sound rationale ; and that in the case of levels below the species, this 
should include evidence demonstrating that factors such as differences in virulence, host 
range or vector relationships are significant enough to affect the phytosanitary status . 
Manual NR-ARP-PO-01_M -01 adds that in cases where a vector is involved, the vector may 
also be considered a pest to the extent that it is associated with the causal organism and 
is required for transmission of the pest160; 
c. Hosts : According to Manual NR -ARP-PO-01_M-01, the taxonomic level at which hosts are 
considered should normally be the species ; the use of higher or lower taxonomic levels 
should be justified by scientifically sound rationale ; and this is useful for determining the 
availability of suitable host s, alternate hosts and vectors in the PRA area;  
d. Geographical distribution : Manual NR -ARP-PO-01_M -01 states that this information is 
important with a view to the possible use of the datasheet for another entry pathway ; and 
that distribution is determined for each country (widely distributed, present with out details 
of its distribution, limited distribution);  
e. Symptoms and damage : According to Manual NR -ARP-PO-01_M -01, the symptoms or 
damage caused by the pest should be des cribed ; photographs of such symptoms or 
damage should be included where possible ; and this is important for determining certain 
direct or indirect effects of the pest;  
f. Life cycle and biology : Manual NR -ARP-PO-01_M -01 states that this information is 
important for determining the probability of introduction and spread;  
g. Spread : Manual NR -ARP-PO-01_M -01 states that this information is important for 
determining the probability of spread following establishment161; 
h. Economic importance and phytosanitary risk : According to Manual NR -ARP-PO-01_M -01, 
the requirements described in this step indicate what information relative to the pest and 
its potential host plants should be assembled, and suggest levels of economic analysis that 
may be carried out using that in formation in order to assess all the effects of the pest, in 
other words,  the potential economic consequences . Manual NR -ARP-PO-01_M -01 adds 
that, wherever appropriate, quantitative data that will provide monetary values should be 
obtained, and that qualit ative data may also be used . Manual NR -ARP-PO-01_M -01 states 
that consultation with an economist may be useful ; that in many instances, detailed 
analysis of the estimated economic consequences is not necessary if there is sufficient 
evidence or it is widel y agreed that the introduction of a pest will have unacceptable 
economic consequences (including environmental consequences) ; and that, in such cases, 
while risk assessment will primarily focus on the probability of introduction and spread, it 
will be nece ssary to examine economic factors in greater detail when the level of economic 
consequences is in question, or when the level of economic consequences is needed to 
evaluate the strength of measures used for risk management or in assessing the 
cost-benefit of exclusion or control;  
 
159 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 26.  
160 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 26.  
161 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 27.  WT/DS524/R  
- 52 - 
  i. Control : Manual NR -ARP-PO-01_M -01 states that this information is important for 
determining certain aspects pertaining to environmental impact (use of pesticides, 
introduction of biological control agents), and for determining cont rol or eradication 
possibilities if the pest were to be introduced ; and 
j. Bibliography.162 
2.1.2   Report ARP-002-2017  
2.1.2.1   Introductory remarks to the PRA  
2.1.2.1.1   Introduction  
2.45.    Report ARP-002-2017, of 1 0 July 2017, entitled "Pest Risk Analysis initiated by the review of 
a policy for the importation of fresh avocado  (Persea americana Mill.) fruit for consumption from 
Mexico", was prepared by the UARP of the SFE of Costa  Rica, "[t]o determine the risk of plant pests 
associated with the importation of fresh avocados ( Persea  americana  Mill.) for human consumption 
from Mexico ".163 
2.46.   Report ARP-002-2017 specifies  that the existing document, prepared in 2004, needs to be 
updated following the detection of the pest called  Avocado sunblotch viroid (ASBVd) in Mexico in 
2009 according to De la Torre et al., the National Inventory of Regulated Pests of Mexico and the 
presentations by Dr Salvador Ochoa at the IV World Avocado Congress, held in San José, Costa  Rica, 
in July 2013.164 
2.47.   Report ARP-002-2017 states  that "[t]his PRA is carried out in a manner that is harmonized 
with [ISPM No. 11], and therefore complies with the principles of harmonization and assessment of 
risk as stipulated in the [SPS] Agreement" and "does not contravene th e SPS  Agreement ".165 
2.48.   Report ARP-002-2017 also states that its results are expressed in qualitative terms (high, 
medium , low); that the methodology used is based on the Manual NR -ARP-PO-01_M -01; and that 
"Costa  Rica bases its PRA and risk management methodologies on the standards, guidelines an d 
recommendations stipulated by the [IPPC]", but that, "in cases where the standards do not afford 
the desired level of protection determined by Costa  Rica or do not exist, the country exercises its 
right under the SPS  Agreement  to introduce appropriate me asures, justified on scientific grounds 
and supported by a PRA".166 
2.49.   Report ARP-002-2017 notes that the PRA area analysed is the whole of the territory of 
Costa  Rica.167 
2.1.2.1.2   Background and the importance of  the avocado for Costa  Rica 
2.50.   Report ARP-002-2017 notes  that the avocado is native to Mesoamerica168, that it was 
cultivated from Texas to Peru long before the arrival of the Spanish169; and that  it was subsequently 
 
162 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 28-29. 
163 Servicio Fitosanitario del Estado de Costa Rica, Unidad de Análisis de Riesgo de Plagas, "Análisis de 
Riesgo de Plagas iniciado por la revisión de una política para la importación de frutos frescos de aguacate 
(Persea americana Mill.) para consumo, originarios de México" (2017) (ARP -002-2017), (Exhibit  MEX-84), p. 3.  
164 ARP-002-2017, (Exhibit MEX -84), p. 3 (citing R. de la Torre Almaráz, D. Téliz Ortiz, V. Pallás and 
J.A. Sánchez Navarro, "First Report of Avocado sunblotch viroid  in Avocados from Michoacán, México", 
Plant Disease , Vol. 93, No.  2 (2009) (De la Torre et al. (2009)), (Exhibit MEX -70); and Sistema Nacional de 
Vigilancia Epidemiológica Fitosanitaria (SINAVEF), Actualización de lista de inventario, Informe 2010 (2010) 
(SINAVEF, Update of the inventory list (2010)), (Exhibit CRI -13)). 
165 ARP-002-2017, (Exhibit MEX -84), p. 3.  
166 ARP-002-2017, (Exhibit MEX -84), p. 3.  
167 ARP-002-2017, (Exhibit MEX -84), p. 4.  
168 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing M.E. Galindo Tovar, N. Ogata Aguilar and A.M. Arzate 
Fernández, "Some aspects of avocado ( Persea americana  Mill.) diversity and domestication in Mesoamerica", 
Genetic Resources and Crop Evolution, Vol. 55 (2008), pp. 441 –450 (Galindo Tovar et al. (2008)), 
(Exhibit  MEX-22)). 
169 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing J.F. Morton, "Avocado", in J.F. Morton (ed.), 
Fruits  of warm climates  (Miami, Florida, 1987) (Morton (1987)), (Exhibit CRI -126)). WT/DS524/R  
- 53 - 
  taken to the West Indies and then to nearly all parts of the world with conditions suitable for its 
cultivation.170 
2.51.   Report ARP-002-2017 states that avocado can be grown at altitudes from sea level up to 
2,500  metres  above sea level (masl) ; that temperature and rainfall are the two most critical factors 
for crop development ; that, with reg ard to temperature,  the cultivars used behave differently 
depending on their genetics, which allows them to adapt to most of the national territory ; that 
1,200  millimetres  (mm)  of rainfall annually, distributed evenly throughout the year, are sufficient to  
meet its water needs171; and that excess precipitation during the flowering and fruit setting stages 
reduces yield and causes the fruit to fall.172 
2.52.   Report ARP-002-2017 points out  that, according to FAOSTAT, total avocado production in 
Costa  Rica in 2012 was an estimated 27,000 tonnes, most of which is destined for the domestic 
market173; that the commercial Hass avocado farms are concentrated in the Central Valley and Los 
Santos zo ne174, and in the regions of León Cortés, Tarrazú, Santa María de Dota, Grecia, Coronado, 
Poás, Goicoechea, Zarcero, Tres Ríos and Sarchí ; that the majority of commercial farms are at 
altitudes of between 800 and 2,300 masl175; that the low -lying avocado -producing area , comprising 
Orotina, San Mateo and Esparza , is known for its production of the West Indian avocado varieties, 
Fuerte,  Torres, Catalina, Booth 8, Booth 7, Masutomi, Kahalu'u and Simmonds176; and that avocado 
is grown in all seven of the country's  provinces.177 
2.53.   Report ARP-002-2017 indicates that the main area where Hass avocado is grown (Los Santos 
zone) is mountainous and hard to reach ; and that the product is harvested in to sacks or crates and 
carried by hand  to a road acces sible to four-wheel dri ve vehicle s.178 
2.54.   Report ARP-002-2017 notes that Costa  Rica has regulations governing commercial nurseries, 
including avocado nurseries, which established a nursery registry and set out the procedures to 
follow179, but that not all the producers buy their propagati on material (seed and cuttings) from 
nurseries that  are subject to regulation, instead most of them produce their own seedlings or scion 
material on site.180 
2.55.   According to Report ARP-002-2017, a series of different propagation techniques are used, for 
example,  direct seeding (the plants are subsequently graf ted), germinating the seed in containers 
(then transplanting the sprouts to the field and grafting them) and sowing seeds  in bags (grafted in 
the nursery and then transplanted) .181 Report ARP-002-2017 also notes that , in the cantons of 
León Cortés, Tarrazú and Dota, the avocado seeds of fruits that fall on the ground are left to 
 
170 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing Morton (1987), (Exhibit CRI -126)). 
171 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing M. Garbanzo Solís, Manual de Aguacate – Buenas 
Prácticas de Cultivo Variedad Hass , 2a ed. (San José, Costa Rica: MAG, 2011) (Garbanzo Solís (2011)), 
(Exhibit  MEX-125)). 
172 ARP-002-2017, (Exhibit MEX -84), p. 4.  
173 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing Food and Agriculture Organization Corporate Statistical 
Database (FAOSTAT), Productio n Indices, Costa Rica 2012, available from: faostat.fao.org (FAOSTAT, 
Production Indices, Costa Rica 2012), (Exhibit CRI -119)). 
174 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing Empresa consultora CONSULSANTOS S.R.L., "Informe 
acerca de los resultados del censo socioeconómico -productivo de los productores de aguacate de la subregión 
Los Santos dentro de la consultoría: 'Caracterización socioeconómica y georreferenci ación del cultivo del 
aguacate de altura en la zona de los Santos'" (2010) (CONSULSANTOS (2010)), (Exhibit MEX -119)). 
175 ARP-002-2017, (Exhibit MEX -84), p. 4. Report ARP -002-2017 citing exhibit "(MAG 1991)", which is 
not part of the record for this dispute.  
176 ARP-002-2017, (Exhibit MEX -84), pp. 4-5 (citing Consejo Nacional de Producción, Ministerio de 
Agricultura y Ganadería de Costa Rica, "Alternativas para la comercialización del aguacate en la Zona de los 
Santos" (1995) (Consejo Nacional de Producción (19 95)), (Exhibit CRI -114)). 
177 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing Instituto Nacional de Estadísticas y Censo (INEC) de 
Costa Rica, VI Censo Agropecuario, "Cultivos agrícolas, forestales y ornamentales", San José, Costa Rica, 
julio 2015 (INEC, Crops (2015)), (Exhibit CRI -63); and Instituto Nacional de Estadísticas y Censo (INEC) de 
Costa Rica, VI Censo Agropecuario, "Atlas estadístico agropecuario", noviembre 2015 (INEC, Agricultural 
statistical atlas (2015)), (Exhibit CRI -64)). 
178 ARP-002-2017, (Exhib it MEX -84), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
179 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing Presidente de la República y Ministro de Agricultura y 
Ganadería, Reglamento de Viveros, Almácigos, Semilleros y Bancos de Yemas N° 33927, 2 de  julio de 2007 
(Nursery regulations  (2007)), (Exhibit CRI -30)). 
180 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
181 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). WT/DS524/R  
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  germinate in the field by themselves . When producers find them, they tend the plants and then graft 
them to obtain a new , low-cost plant.182 
2.56.   Report ARP-002-2017 points out  that the us e of plants derived from rootstock -scion 
combinations is a practice recognized by the fruit industry183; and that, in the case of Costa  Rica, 
one of the cultivars used successfully as a rootstock in the main avocado -producing area is the 
Hass.184 Report ARP-002-2017 adds that the practice of using Hass rootstock increases the likelihood 
of using seed from avocado imported for human consumption ; that the existence of seed -borne 
regulated pests creates a phytosanitary risk that must be managed, since there is a viable seed 
inside the fruit that could introduce regulated pests into the PRA area ; and that imported avocados 
are distributed throughout Costa  Rica.185 
2.57.   Report ARP-002-2017 states that the aforementioned cultural practices create a situation in 
which a producer may use seed from outside his or her farm ; that the seeds of fruit consumed186, 
waste  from wholesale markets and avocado processors can be a ready source of avocado seed of 
unknown quality187; and that this situation must be assessed as part  of the PRA in order to be able 
to manage the risk appropriately, as , according to Report ARP-002-2017,  is shown in the 2016 
report, "Diversion from intended use"188, and to mitigate the risk to a level commensurate with 
Costa  Rica's appropriate level of pr otection .189 Report ARP-002-2017 adds that people who consume 
good quality avocado and have space to cultivate this fruit are likely to plant the seed190; and that 
not all the population has the purchasing power to buy Hass avocados, which are more expensive.191 
2.58.   Report ARP-002-2017 mentions that , according to Holdridge's (1987) classification of climate 
zones,  the main life zones in Costa  Rica are tropical moist forest, tropical dry forest, tropical wet 
forest, premontane moist forest and premontane w et forest192; that the life zones of tropical dry 
forest have a marked dry season, during which avocado seeds dry up when they fall to the ground 
and do not germinate ; that the dry season runs from December to May ; and that the rest of the 
year is rainy, wi th weather conditions optimal for the germination of the seed without human 
assistance.193 
2.59.   Report ARP-002-2017 adds that there are endemic avocado varieties in Costa  Rica194, which 
are both wild and cultivated ; that, unlike other parts of the world, a series  of optimal climatic 
conditions for the germination of avocado seeds exist in Costa  Rica; that in Costa  Rica these seeds 
do not need any special treatment or care to ensure their germination ; that the seeds germinate 
without human assistance when they fall  naturally or are discarded in gardens, the countryside and 
fields where avocado is cultivated195; and that this situation does not arise in other countries, leading 
to considerable disparities with the possible regulations adopted by countries with differe nt climatic 
conditions that import fresh avocado  fruit for human consumption . Report ARP-002-2017 states that 
the introduction of a viroid such as ASBVd reduces the possibility of using native varieties of avocado 
in genetic improvement programmes, leading  to negative consequences for the avocado industry 
 
182 ARP-002-2017, (Exhibit MEX -84), pp. 5 -6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
183 ARP-002-2017, (Exhibit MEX -84), p. 6.  
184 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing CONSULSANTOS (2010), (Exhibit  MEX-119); and 
Garbanzo  Solís (2011), (Exhibit MEX -125)). 
185 ARP-002-2017, (Exhibit MEX -84), p. 6.  
186 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing Documento de la empresa consultora CONSULSANTOS 
S.R.L., 16 de marzo de 2017 (CONSULSANTOS (2017)), (Exhibit MEX -118)). 
187 ARP-002-2017, (Exhibit MEX -84), p. 6.  
188 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing Secretaría de la CIPF, "Diversion from intended use" 
(2016)  (IPPC Secretariat, "Diversion from intended use" (2016) ), (Exhibit MEX -124)). 
189 ARP-002-2017, (Exhibit MEX -84), p. 6.  
190 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
191 ARP-002-2017, (Exhibit MEX -84), p. 7.  
192 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing L.R. Holdridge, Ecología basada en zonas de vida , 
Instituto Interamericano de Cooperación para la Agricultura, San  José, Costa Rica (1982) (Holdridge (1982)), 
(Exhibit CRI -122)). Report ARP -002-2017 refers to Holdridge (1987), but the corresponding exhibit, submitted 
by Costa  Rica, is dated 1982.  
193 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
194 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
195 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). WT/DS524/R  
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  and biodiversity, as well as imposing constraints on and increasing production costs for the export 
of avocado plants.196 
2.1.2.1.3   Uncertainty  
2.60.   Report ARP-002-2017 states  that "[t]here are currently records of expert testimony 
(CONSULSAN TOS 2017) that demonstrate diversion from intended use, however, to date, no 
statistics are available on the quantity of imported fruit from which the seed is extracted for 
propagation purposes" .197 Report ARP-002-2017 cites the paper "Diversion from intended use" 
(2016):  
The practice of diversion from intended use (DFIU) may be unintentional, or done with 
knowledge of its illegal status . It is rarely documented or reported, but anecdotal 
evidence suggests it is occurring in most p arts of the world . It is considered most serious 
when products designated for consumption (including grain), time -limited decorative 
purposes (such as cut flowers and branches) or processing instead end up being used 
for planting, so that any associated pe sts may be introduced into the open environment 
unchecked.198 
2.1.2.1.4   Pest risk analysis  
2.61.   Report ARP-002-2017 states that, in the probability tables , in the section on the intended use 
of fresh fruit for consumption , the Costa  Rican authorities, on the understanding  that the fruit is 
imported with the intended use of consumption, will assign it the corresponding values in the 
PRA. Report ARP-002-2017 clarifies, however, that, as the seed and skin are not consumed, the 
potential of this waste to introduce and subseque ntly spread quarantine pests is analysed199; and 
that diversion from intended use was considered because, given the quantity of fruit that is imported, 
the national plant protection organization (NPPO) would be hard -pressed to be able to track the fruit 
after import200 and the viable seed borne therein.201 
2.62.   Report ARP-002-2017 indicates that symptomatic ASBVd causes damage to the fruit that 
reduces their acceptability for market ; and that these fruit are unlikely to be included in a 
consignment of commercial avocado for export .202 Report ARP-002-2017 also indicates  that, 
however, in the case of asymptomatic fruit, which are of concern to the Costa  Rican phytosanitary 
authorities , the situation is different ; and that asymptomatic fruit carrying the vi roid can have a 
seed transmission rate of between 90 % and 95 %203, and can meet the export market's quality 
requirements204, as it does not present symptoms of the viroid . Report ARP-002-2017 adds that 
these fruit can therefore be part of a commercial consign ment and require specific laboratory tests 
to determine the presence or absence of the viroid.205 
 
196 ARP-002-2017, (Exhibit MEX -84), p. 7.  
197 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
198 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing IPPC Secretariat , "Diversion from intended use" 
(2016), (Exhibit MEX -124)). 
199 ARP-002-2017, (Exhibit MEX -84), p. 8.  
200 ARP-002-2017, (Exhibit MEX -84), p.8 (citing IPPC Secretariat , "Diversion from intended use" (2016), 
(Exhibit MEX -124)). 
201 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing D.H. Spalding, R.J. Knight and W.F. Reeder, "Storage 
of Avocado Seeds", Proceedings Florida State Horticultural Society , Vol. 89 (1976), pp. 257 -258 (Spalding et 
al. (1976)), (Exhibit MEX -133)). 
202 ARP-002-2017, (Exhibit MEX -84), p. 9 (citing L. Dorantes, L . Parada and A. Ortiz, "Avocado Post 
Harvest Operations", INPhO – Post-harvest Compendium, Food and Agriculture Organization (FAO) (2004) 
(Dorantes et al. (2004)), (Exhibit CRI -117)). 
203 ARP-002-2017, (Exhibit MEX -84), p. 9 (citing J.M. Wallace and R.J. Dra ke, "Seed Transmission of the 
Avocado Sun -Blotch Virus", Citrus Leaves , Vol. 33, No.  12 (1953) (Wallace and Drake (1953)), 
(Exhibit  CRI-141)). 
204 ARP-002-2017, (Exhibit MEX -84), p. 9 (citing Dorantes et al. (2004), (Exhibit CRI -117); and 
Servicio  Fitosanita rio del Estado de Costa Rica, Unidad de Análisis de Riesgo de Plagas, "Informe Técnico 
025-2015-ARP-SFE", 25 de mayo de 2015 (Technical report 025 -2015-ARP-SFE (2015)), (Exhibit MEX -138)). 
205 ARP-002-2017, (Exhibit MEX -84), p. 9.  WT/DS524/R  
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  2.1.2.2   Stage 1 : Initiation  
2.63.   Report ARP-002-2017 states that the PRA has been initiated by the review of a phytosanitary 
policy, and that the phytosanitary policy reviewed in Report ARP-002-2017 is that covering the 
importation into Costa  Rica of fresh avocados ( Persea americana  Mill.) for consumpti on, for the 
purpose of identifying and assessing the quarantine pest risk associated with the importation of that 
product.206 
2.64.   Report ARP-002-2017 identifies the territory of Costa  Rica as the PRA area, that is,  all 
51,100  km2.207 
2.65.   Report ARP-002-2017 contains a list of six potential quarantine pests associated with fresh 
avocados from Mexico, which includes ASBVd.208 
2.1.2.2.1   ASBVd  
2.66.   Report ARP-002-2017 states that ASBVd, or Avocado sunblotch viroid, is a single -stranded 
ribonucleic acid (RNA) molecule with a chai n length of 247 nucleotides, which does not code for any 
protein ; that it replicates autonomously in the chloroplasts of its hosts ; that it belongs to the family 
Avsunviroidae , characterized by the ability to fold into hammerhead structures and to self -catalyze; 
that it is considered atypical because it has a different nucleotide sequence, in addition to its 
hammerhead structure, and lacks the central conserved region characteristic of other viroids.209 
2.67.   Report ARP-002-2017 indicates that, according to Hadidi et al. , ASBVd is a pest for which 
there are no known control methods, and that is difficult to manage and is a quarantine pest for 
countries where it is not present.210 
2.68.   Report ARP-002-2017 states that small changes i n the nucleotide sequence can have a 
dramatic effect on symptom expression211; and that Semancik and Szychowski categorized ASBVd 
according to the sequence variants, associated with the symptoms displayed, as ASBVd -B 
(bleached), ASBVd -V (variegated) and ASB Vd-Sc (symptomless carrier tissue) . Report 
ARP-002-2017 adds that trees with severe leaf bleach can later become symptomless carriers, but 
that environmental stressors, such as a severe pruning, may cause leaf bleach symptoms to 
return.212 
2.69.   Report ARP-002-2017 states  that all infected trees, whether symptomatic or symptomless, 
have greatly reduced yields213; that the yield of asymptomatic Hass avocado trees fell by 15 -30%214; 
and that according to Da Graca it is inaccurate to call variants that do not present f ruit or branch 
 
206 ARP-002-2017, (Exhibit MEX -84), p. 10.  
207 ARP-002-2017, (Exhibit MEX -84), p. 10.  
208 ARP-002-2017, (Exhibit MEX -84), pp. 10 -11 (in the case of ASBVd, citing De la Torre et al. (2009), 
(Exhibit  MEX-70); SINAVEF, Update of the inventory list  (2010), (Exhibit CR I-13); CABI, Crop Protection 
Compendium: Datasheet report for Avocado sunblotch viroid (CABI, Datasheet report for ASBVd), 
(Exhibit  CRI-102); and Technical report 025 -2015-ARP-SFE (2015), (Exhibit MEX -138)). 
209 ARP-002-2017, (Exhibit MEX -84), p. 12 (citing A. Hadidi, R. Flores, J.W. Randles and J.S. Semancik,  
Viroids  (CSIRO Publishing: Melbourne, Australia, 2003) (Hadidi et al. (2003)), (Exhibit CRI -121); and J.S. 
Semancik and J.A. Szychowski, "Avocado sublotch disease: a persistent viroid infection in which  variants are 
associated with differential symptoms",  Journal of General Virology , Vol. 75 (1994), pp. 1543 -1549 (Semancik 
and Szychowski (1994)), (Exhibit MEX -52)). 
210 ARP-002-2017, (Exhibit MEX -84), p. 12 (citing Hadidi et al. (2003), (Exhibit CRI-121)). 
211 ARP-002-2017, (Exhibit MEX -84), p. 12 (citing R.C. Ploetz, E. Dann, K. Pegg, A. Eskalen, S. Ochoa 
and A. Campbell, "Pathogen exclusion: Options and implementation", Actas VII Congreso Mundial del Aguacate  
(Australia, 2011) (Ploetz et al. (2011 )), (Exhibit MEX -56)). 
212 ARP-002-2017, (Exhibit MEX -84), p. 12 (citing Semancik and  Szychowski (1994), (Exhibit MEX -52)). 
213 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
214 ARP-002-2017, (Exhibit MEX -84), p. 13 (citi ng N.A. Mohamed and W. Thomas, "Viroid -like Properties 
of an RNA Species Associated with Sunblotch Disease of Avocados", Journal of General Virology , 
Vol. 46, No. 1 (1980) (Mohamed and Thomas (1980)), (Exhibit CRI -125)). WT/DS524/R  
- 57 - 
  symptoms "symptomless", as the infection instead manifests itself in the reduced yield ; and that, 
for example, the yield of symptomless Edranol trees was reduced by up to 82 %.215 
2.70.   Report ARP-002-2017 states that the principal forms of transmis sion of the viroid are using 
seed from symptomless fruit, grafting infected scion material, pruning or harvesting equipment 
contaminated with the sap of sick plants, natural root grafts and pollen.216 
2.71.   Report ARP-002-2017 indicates that recent sampling confirmed that the pest is not present in 
Costa  Rica; that those samples were taken by the Department of Regional Operations in the cantons 
of Grecia, Heredia, Naranjo, Cartago, Desamparados, Dota, El Guarco, León Cortés , Tarrazú, 
Abangares, Tilarán, Liberia, Esparza, Orotina and Coto Brus .217 Report ARP-002-2017 states that, 
although Hadidi et al.  (2003) and CABI (2017) indicate that ASBVd is present in Costa  Rica, this 
assertion is incorrect, as it is based on the articl e by Vargas et al. (1997), which only mentions the 
presence of ASBVd in Peru, but not in Costa  Rica218; and that the disease is present in Israel219, 
Spain220, South  Africa221, the United  States222,Guatemala223, Mexico224, Peru225, Venezuela226 and 
Australia.227 
2.1.2.2.2   International regulations concerning ASBVd  
2.72.   Report ARP-002-2017 mentions that regulations have been adopted by Costa  Rica with regard 
to Peru and the United  States  (California)228; by Ecuador with regard to anywhere in the world where 
the pest is present229; and by New  Zealand  with regard to Australia.230 
 
215 ARP-002-2017, (Exhibit MEX-84), p. 13 (citing J.V. da Graca, "Sunblotch -Associated Reduction in 
Fruit Yield in both Symptomatic and Symptomless Carrier Trees", South  Africa n Avocado Growers' Association 
Yearbook , Vol. 8 (1985), pp. 59 -60 (Da Graca (1985)), (Exhibit CRI -103)). 
216 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
217 ARP-002-2017, (Exhibit MEX -84), p. 13.  
218 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Hadidi et al. (2003), (Exhibit CRI -121); and C.O. 
Vargas, M. Querci and L.F. Sal azar, "Identificación y estado de diseminación del viroide del manchado solar del 
palto ( Persea americana  L.) en el Perú y la existencia de otros viroides en palto", Fitopatología , Vol. 26, No.  1 
(1991) (Vargas et al. (1991)), (Exhibit CRI -137)). 
219 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Spiegel, M. Alper and R.N. Allen, "Evaluation of 
biochemical methods for the diagnosis of the avocado sunblotch viroid in Israel", Phytoparasitica , 
Vol. 12, No. 1 (1984) (Spiegel et al. (1984)), (Exhibit CRI -134)). 
220 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing C. López Herrera, F. Pliego and R. Flores, "Detection 
of avocado sunblotch viroid in Spain by double polyacrylamide gel electrophoresis", Journal of Phytopathology , 
Vol. 119 (1987), pp. 184 -189 (López He rrera et al. (1987)), (Exhibit CRI -124)). 
221 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing A.K. Acheampong, R. Akromah, F.A. Ofori, J.F. 
Takrama and M. Zeidan, "Is there Avocado sunblotch  Viroid in Ghana?", African Journal of Biotechnology , 
Vol. 7, No. 20 (2008), pp. 3540 -3545 (Acheampong et al. (2008)), (Exhibit MEX -58)). 
222 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing J.E. Coit, "Sun -Blotch of the Avocado, A Serious 
Physiological Disease", California Avocado Society 1928 Yearbook , Vol. 12 (1928), pp. 26 -29 (Coit (1928)), 
(Exhibit  CRI-9)). 
223 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing R.E. Campos, U.E. SantaCruz, G.J.M. Rivera and 
M.J.A. Florez, "Distinción de los síntomas del viroide del aguacate 'Rayito de Sol' y su manejo en Michoacán, 
México", Actas VII Congreso Mundial del Aguacate  (Australia, 2011) (Campos et al. (2011)), (Exhibit MEX -51)). 
224 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing De la Torre et al. (2009), (Exhibit MEX -70); and 
SINAVEF, Update of the inventory list  (2010), (Exhibit CRI -13)). 
225 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Vargas et al. (1991 ), (Exhibit CRI -137)). 
226 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing A. Rondón and M. Figueroa, "Mancha de sol (Sun 
blotch) de los aguacates ( Persea americana ) en Venezuela", Agronomía Tropical , Vol. 26, No.  5 (1976) 
(Rondón and Figueroa (1976)), (Exhibi t CRI-139)). 
227 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing J.L. Dale and R.N. Allen, "Avocado affected by 
sunblotch disease contains low molecular weight ribonucleic acid", Australasian Plant Pathology , Vol. 8 (1979) 
(Dale and Allen (1979)), (Exhibit CRI -115)). 
228 ARP-002-2017, (Exhibit MEX -84), p. 14 (citing Servicio Fitosanitario del Estado (SFE), Estadísticas de 
importación de aguacate 2015 -2017 (2019) (SFE, Avocado imports statistics 2015 -2017 (2019)), 
(Exhibit  CRI-140)). 
229 ARP-002-2017, (Exhibit MEX -84), p. 14 (citing Resolución de la Agencia Ecuatoriana de 
Aseguramiento de Calidad del Agro – AGROCALIDAD, Resolución N° 0008, Registro Oficial N° 698 (24 de 
febrero de 2016) (AGROCALIDAD, Ecuador, Resolución N° 0008), (Exhibit CRI -26)). 
230 ARP-002-2017, (Exhibit MEX -84), p. 14 (citing Ministry of Agriculture and Forestry (MAF) 
(actualmente Ministry for Primary Industries), "Import Health Standard Commodity Sub -class: Fresh WT/DS524/R  
- 58 - 
  2.73.   Report ARP-002-2017 mentions that the United  States ' regulations governing the import of 
fresh avocados for human consumption231 were revised, but that Costa  Rica's situation differs from 
that of the United  States , because ASBVd is not present in Costa  Rica but it is in the United  States, 
so the United  States  regulation could not be taken into consideration for Report ARP-002-2017.232 
2.74.   Report ARP-002-2017 states that one input  considered  was the New  Zealand  regulation for 
the import of fresh avocado  fruit for human consumption from Australia, and asserts  that 
New Zealand  is in a similar situation to Costa  Rica, because it is also free of ASBVd . Report 
ARP-002-2017 notes  that Ne w Zealand's document classifies ASBVd as a group 2 quarantine risk 
pest, which means that introducing such a pest could cause a major disruption to market access 
and/or significant economic impacts on the production of a product and/or the environment ; and 
that New  Zealand  considers the waste generated by avocado imports (skin and seed) to be a 
pathway for the spread of quarantine pests.233 
2.75.   Report ARP-002-2017 also states that another input considered was Australia's biosecurity 
plan, which categorizes ASBVd  as a pest with a high probability of introduction, establishment, 
spread, economic consequences and risk in general, both the symptomless and symptomatic 
forms.234 
2.1.2.2.3   Conclusion of the initiation  stage  
2.76.   Report ARP-002-2017 indicates that it was initiated by th e review of national phytosanitary 
policy, to assess the phytosanitary risks associated with the pests present in avocados in Mexico but 
not present in Costa  Rica; that the identified pathway of concern is fresh avocado fruit ; and that one 
of the four quar antine pests identified and linked to that pathway is ASBVd.235 
2.1.2.3   Stage 2 : Pest risk assessment  
2.77.   Report ARP-002-2017 states  that the process for pest risk assessment can be divided into 
three interrelated steps : (i) pest categorization ; (ii) assessment of the probability of introduction 
and spread ; and (iii)  assessment of potential economic consequences and environmental impac ts.236 
2.1.2.3.1   Pest categorization  
2.78.   Report ARP-002-2017 included ASBVd on the list of quarantine pests for further analysis.237 
2.1.2.3.2   Assessment of the probability of introduction and spread  
2.79.   Report ARP-002-2017 assessed the probability of introduction, including the probab ility of 
entry and establishment, and the probability of spread of ASBVd.  
2.1.2.3.2.1   Probability of entry of ASBVd  
2.80.   With regard to the probability of entry of ASBVd into Costa  Rica, Report ARP-002-2017 
considered the following factors : the probability of the pest being associated with the pathway at 
origin (section A) ; the probability of survival during transport or storage (section B) ; the probability 
 
Fruit/Vegetables Avocado, Persea americana  from Australia" (3 de junio de 1998) (MAF, N ew Zealand 's 
requirements (1998)), (Exhibit  CRI-25)). 
231 ARP-002-2017, (Exhibit MEX -84), p. 14 (citing Animal and Plant Health Inspection Service (APHIS), 
Mexican Hass Avocado Import Program, Federal Register, Vol. 81, No.  103 (27 de mayo de 2016) (APHIS, 
Mexican Hass Avocado Import Program (2016)), (Exhibit CRI -111)). 
232 ARP-002-2017, (Exhibit MEX -84), p. 14.  
233 ARP-002-2017, (Exhibit MEX -84), pp. 14 -15 (citing MAF, New  Zealand 's requirements (1998), 
(Exhibit  CRI-25)). 
234 ARP-002-2017, (Exhibit MEX -84), p. 15 (citing Plant Health Australia (PHA), Industry Biosecurity Plan 
for the Avocado Industry (Version 2.0)  (Canberra, ACT, 2011) (PHA (2011)), (Exhibit CRI -130)). 
235 ARP-002-2017, (Exhibit MEX -84), p. 15.  
236 ARP-002-2017, (Exhibit MEX -84), p. 15.  
237 ARP-002-2017, (Exhibit MEX -84), p. 16.  WT/DS524/R  
- 59 - 
  of the pest surviving existing pest management procedures (section C) ; and the probability of 
transfer to a suitab le host (section D):  
a. The probability of the pest being associated with the pathway at origin (section  A) was 
deemed to be  high (average 3 points), according to Report ARP-002-2017, when the given 
factors were assessed as follows:  
i. The probability related to prevalence of the pest in the source area was deemed to be  
high (3 points), after determining that ASBVd is present with out details of its  
distribution  in Mexico238; that the incidence rate in Michoacán is 14%239; and that 
Mexico h as neither  declared areas within its territory to be pest -free areas or areas of 
low pest prevalence, nor provided any evidence to this effect.240 
ii. The probability related to the occurrence of the pest in a life stage that would be 
associated with commoditie s, containers or conveyances was deemed to be  high 
(3 points), after determining that ASBVd is systemic in avocado trees241, and is 
therefore present in all tissues  of the plant (seeds, leaves, branches, fruit and roots).242 
iii. The probability related to the vo lume and frequency of movement along the pathway 
was deemed to be  high (3 points), after determining that, on average, 12,600 tonnes 
of avocado are imported into Costa  Rica annually.243 
iv. The probability related to the seasonal timing was deemed to be  high (3 points), after 
determining that the pest is not seasonal.244 
v. The probability related to pest management, cultural and commercial procedures 
applied at the place of origin was deemed to be  high (3 points), after determining that 
no phytosanitary pro tection product is known to be effective against ASBVd245; that 
Mexico failed to  provide any information on nursery regulations that would reduce the 
incidence of ASBVd in the field246; and that selection prior to packing eliminates 
symptomatic fruit  (should  these fruits  reach the packing plant) , but symptomless fruit 
is not rejected.247 
b. The probability of survival during transport or storage (section B) was deemed to be high 
(average 3 points), according to Report ARP-002-2017, when the given factors were 
assessed as follows:  
i. The probability related to the speed and conditions of transport and duration of the life 
cycle of the pest in relation to time in transport and storage was deemed to be high 
(3 points), after determining that these processes have no effe ct on the survival 
 
238 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing De la Torre et al. (2009), (Exhibit MEX -70); and 
SINAVEF, Update of the inventory list  (2010), (Exhibit CRI -13); and CABI, Datasheet report for ASBVd, 
(Exhibit  CRI-102)). 
239 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing M.R. Vallejo Pérez, D. Téliz Ortiz, R. de la Torre 
Almaraz, J.O. López Martínez and D. Nieto Ángel, "Avocado sunblotch viroid: Pest risk and potential impact in 
México", Crop Protection,  Vol. 99 (Elsevier, 2017 ), pp. 118 -127 (Vallejo Pérez et al. (2017)),  
(Exhibit MEX -47)). 
240 ARP-002-2017, (Exhibit MEX -84), p. 34.  
241 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
242 ARP-002-2017, (Exhibit MEX -84), p. 34.  
243 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing SFE, Avocado imports statistics 2015 -2017 (2019), 
(Exhibit  CRI-140)). 
244 ARP-002-2017, (Exhibit MEX -84), pp. 34-35 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
245 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
246 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Technical report 025 -2015-ARP-SFE (2015), 
(Exhibit  MEX-138)). 
247 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Dorantes et al. (2004), (Exhibit CRI -117)). WT/DS524/R  
- 60 - 
  (infectivity) of ASBVd248; and that ASBVd is systemic in the tissues of the plant249, so 
as long as  those tissues are in a good condition, the pest will remain infectious.250 
ii. The probability related to the vulnerability of the life stages d uring transport or storage 
was deemed to be high (3 points), after determining that ASBVd is not considered 
vulnerable251 because it is a viroid and is distributed systemic ally in the plant tissue252; 
as long as  the tissue is in a good condition, the pest will be  present and infectious.253 
iii. The probability related to the prevalence of pest likely to be associated with a 
consignment was deemed to be high (3 points), after determining that, because the 
pest is systemic i n the plant tissue254 and the symptoms are not always expressed , 
the pest may well be associated with the consignment.255 
iv. The probability related to the commercial procedures (for example, refrigeration) 
applied to consignments in the country of origin, coun try of destination, or in transport 
or storage was deemed to be high (3 points), after determining that the pest is 
unaffected by commercial procedures and it is systemic in the plant tissue .256 Report 
ARP-002-2017 points out  that the effect on seed viabili ty was tested by Wutscher and 
Maxwell on mature Lula avocado fruits, stating  that, for seed germination to be 
affected, temperatures need to be between -6.7°C and -7.8°C for viability to be 
reduced by 50 %, and at -8.9°C for germination to be reduced to zer o. Temperatures 
of -5.6°C and higher did not affect germination .257 Report ARP-002-2017 adds that the 
average temperature of a commercial consignment is between 5°C and 7°C258, and 
that Spalding et al. found that germination of seeds  of the  Lula variety  is 100% after 
being stored for two months at 4.4°C in non -perforated polyethylene bags.259 
c. Report ARP-002-2017 indicates that w ith regard to the probability of the pest surviving 
existing pest management procedures (section C), the following factors  were assessed:  
i. The probability that the pest could survive post -harvest treatments (section C.1) was 
deemed to be high (3 points), after it was determined that post -harvest management 
has no effect on controlling the pest .260 According to Report ARP-002-2017, 
symptomatic fruit are discarded during post -harvest operations, however, the 
symptomless ones are not detected by packing staff or machines and are shipped 
together with pest -free fruit.261 
ii. The probability that the pest is not detected at the entry point (section C.2) was 
deemed to be high (3 points), after it was determined that , even if the inspection is 
thorough,  it is not possible to detect the presence of the pest at the entry point.262 
 
248 ARP-002-2017, (Exhibit MEX -84), p. 35.  
249 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
250 ARP-002-2017, (Exhibit MEX -84), p. 35.  
251 ARP-002-2017, (Exhibit MEX -84), p. 35.  
252 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
253 ARP-002-2017, (Exhibit MEX -84), pp. 35 -36. 
254 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
255 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Technical report 025-2015-ARP-SFE (2015), 
(Exhibit  MEX-138)). 
256 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
257 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing H.K. Wutscher and  N.P. Maxwell, "The Effect of Sub -
freezing Temperatures on Fruit Quality and Seed Viability of 'Lula' Avocado", HortScience , Vol. 4, No.  2 (1969), 
pp. 26-27 (Wutscher and Maxwell  (1969)), (Exhibit MEX -132)). 
258 ARP-002-2017, (Exhibit MEX -84), p. 36.  
259 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Spalding et al. (1976) (Exhibit MEX -133)). 
260 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
261 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Dorantes et al. (2004), (Exhibit CRI -117); and 
Technical  report 025 -2015-ARP-SFE (2015), (Exhibit MEX -138)). 
262 ARP-002-2017, (Exhibit MEX -84), pp. 36 -37. WT/DS524/R  
- 61 - 
  Report ARP-002-2017 indicates  that there are symptomless  strains of the pest263, so 
specific tests must be carried out to detect it.264 
d. The probability of transfer to a suitable host was deemed to be high 
(average  2.6 points)265, according to Report ARP-002-2017, when the given factors were 
assessed as follows:  
i. The probability related to the dispersal mechanisms, including vectors to allow 
movement from the pathway to a suitable host was deemed to be medium  (2 points), 
after it was determined that the dispersal mechanisms from the pathway to a host are 
through growing a plant from the seed of symptomless fruit, because the pest is 
systemic in the tissue266; that the generation of rootstock from fruit from infected trees 
(including from the Hass variety) can significantly increase the incidence of ASBVd267; 
and that it does not require vectors, but bees can carry the pollen and infect the fruit 
that it pollinates.268 
ii. The probability related to whether the imported commodity is to be sent to a few or 
many des tination points in the PRA area was deemed to be high (3 points), after it 
was determined that the imported avocados are sent to many destination points, and 
that they are distributed across the country for  retail sale in supermarket chains, by 
street vend ors and at farmers' markets .269 
iii. The probability related to the proximity of entry, transit and destination points to 
suitable hosts was deemed to be high (3 points), after it was determined that the host 
species ( Persea americana  Mill.) is found throughout the country, close to the entry, 
transit and final destination points270; that the West Indian races tend to grow naturally 
on the Pacific lowlands, from Guatemala to Costa  Rica271; that the avocado is native272 
to Costa  Rica; and that avocado, both wild and cultivated, is present in all regions of 
the country.273 
iv. The probability related to the time of year at which import takes place was deemed to 
be high (3 points), after it was determined that avocados were imported all year 
round .274 
 
263 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing R.J. Schnell, D.N. Kuhn, C.T. Olano and W.E. 
Quintanilla, "Sequence diversity a mong avocado sunblotch viroids isolated from single avocado trees", 
Phytoparasitica , Vol. 29 (2001) (Schnell et al. (2001)), (Exhibit CRI -131)). 
264 ARP-002-2017, (Exhibit MEX -84), pp. 36 -37 (citing R.J. Schnell, D.N. Kuhn, C.M. Ronning and 
D. Harkins, "Appl ication of RT -PCR for indexing avocado sunblotch viroid", Plant Disease , Vol. 81, No.  9 (1997), 
pp. 1023-1026 (Schnell et al. (1997)), (Exhibit MEX -68)). 
265 This figure was corrected by Costa Rica, from 2.6 to 2.66, in Servicio Fitosanitario del Estado de 
Costa Rica, Unidad de Análisis de Riesgo de Plagas, "Análisis de Riesgo de Plagas iniciado por la revisión de una 
política para la importación de frutos frescos de aguacate ( Persea americana Mill.) para consumo, originarios 
de México" (Corrigenda de julio d e 2019) (Corrigenda ARP -002-2017 (2019)), (Exhibit MEX -131)). Costa Rica 
states that "in July 2019, corrigenda to the PRAs were issued, which correct certain numerical errors, but do 
not alter the substance of the original PRAs". (Costa Rica's first writte n communication, fns  62 and  211).  
266 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
267 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
268 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing P.R. Desjardins, R.J. Drake, E.L. Atkins and B.O. 
Bergh,  "Pollen transmission of avocado sunblotch virus experimentally demonstrated", California Agriculture , 
Vol. 33, No.  11 (1979), (Desjardins et al. (1979)), (Exhibit MEX -60)). 
269 ARP-002-2017, (Exhibit MEX -84), p. 37.  
270 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Garbanzo Solís (2011), (Exhibit MEX -125)). 
271 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing W.B. Storey, B. Bergh and G.A. Zentmyer, "The 
origin, indigenous range, and dissemination of the avocado", California Avocado Society Yearbook , Vol. 70 
(1986) (Storey et al. (1986)), (Exhibit CRI -135)). 
272 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
273 ARP-002-2017, (Exhibit MEX -84), p. 37.  
274 ARP-002-2017, (Exhibit MEX -84), pp. 37 -38 (citing SFE, Avocado imports statistics 2015 -2017 
(2019), (Exhibit  CRI-140)). WT/DS524/R  
- 62 - 
  v. The probability related to the intended use of the commodity was deemed to be 
medium  (2 points), after it was determined that its intended use is consumption.275 
vi. The probability related to the risks from by -products and waste was deemed to be high 
(3 points), after it was determined that the waste of fresh avocado fruit are the skins 
and seeds ; that, as it contains a viable seed, there is a risk of pest introduction through 
the waste276; and that the germination of a seed from a sym ptomless fruit would 
introduce the pest into the PRA area.277 
2.81.   The probability of entry assessment table (Table 3) contains the following results278: 
A B C.1 C.2 D Cumulative  
High 3  High 3  High 3  High 3  High 2.6  High 
14.63/15279 
 
2.1.2.3.2.2   Probability of establishment  
2.82.   With regard to the probability of establishment of ASBVd in Costa  Rica, Report ARP-002-2017 
considered the following factors : availability of suitable hosts, alternate hosts and vectors in the PRA 
area (section A) ; suitability of environment (section B) ; cultivation practices  and control measures 
(section C) ; and other characteristics of the pest affecting the probability of establishment 
(section  D). 
a. The probability related to availability of suitable hosts, alternate hosts and vectors in the  
PRA area (section A) was deemed to be low (1 point), after it was determined that the 
viroid has been found exclusively in Persea americana  Mill.280 Report ARP-002-2017 notes 
that, in the case of seeds that germinate from imported avocado fruit, either because the 
waste (seed) was disposed of in a place suitable for seed germination or because it was 
diverted from its intended use, the pest would already be systemic in the host plan t's 
tissue.281 
b. The probability related to suitability of environment (section B) was deemed to be high 
(3 points), after it was determined that the conditions this pest needs to survive are those 
required by the host , the avocado tree282; that the avocado is  a plant native to 
Mesoamerica283; and that the environment in the PRA area is favourable  for this pest.284 
c. The probability related to cultivation practices  and control measures (section C) was 
deemed to be medium  (2 points), after it was determined that the re is no control method 
for this pest285, and the only option is to eradicat e or rogue trees286; that the documented 
cultivation practices  in Costa  Rica would affect the spread of the pest, given that producers 
are known to prepare  their own seed beds and do not turn to  commercial nurseries, that 
pruning or harvesting tools are not disinfected between trees, that replanting orchards is 
extremely expensive, and that nurseries, which are subject to government regulations, 
 
275 ARP-002-2017, (Exhibit MEX -84), p. 38.  
276 ARP-002-2017, (Exhibit MEX -84), p. 38.  
277 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
278 ARP-002-2017, (Exhibit MEX -84), p. 38.  
279 This figure was corrected by Costa Rica, from 14.63/15 to 14.67/15, in the Corrigenda 
ARP-002-2017 (2019), (Exhibit MEX -131). Costa Rica states that "in July 2019, corrigenda to the PRAs were 
issued, which correct certain numerical errors, but d o not alter the substance of the original PRAs". 
(Costa  Rica's first written submi ssion, fns  62 and 211).  
280 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing W.T. Horne, "Avocado Diseases in California", 
University of California,  Berkeley Bulletin , Vol. 585 (1934) (Horne (1934)), (Exhibit CRI -138)). 
281 ARP-002-2017, (Exhibit MEX -84), p. 38 ( citing Ploetz et al. (2011), (Exhibit MEX -56)). 
282 ARP-002-2017, (Exhibit MEX -84), pp. 38-39. 
283 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
284 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Holdridge (1982), (Exhibit CRI -122)). Report 
ARP-002-2017 refers to Holdridge (1987), but the corresponding exhibit, submitted by Costa Rica, is dated 
1982.  
285 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing Hadidi et al. (2003), (Exhibit CRI-121)). 
286 ARP-002-2017, (Exhibit MEX -84), p. 39.  WT/DS524/R  
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  are not the main source of material planted in the field287; and that the foregoing is related 
to the diversion from intended use, that is, the practice of using seeds from imported Hass 
avocados to grow new plants despite the fact that those avocados were originally imported 
for hum an consumption.288 
d. The probability relating to other characteristics of the pest affecting the probability of 
establishment (section D) was deemed to be low (1 point), after it was determined that 
ASBVd does not have a high reproductive potential or the abi lity to spread quickly.289 
2.83.   The probability of establishment assessment table (Table 4) contains the following results290: 
A B C D Cumulative  
Low 1  High 3  Medium 2 Low 1  Medium 7/12 
 
2.1.2.3.2.3   Probability of spread after establishment  
2.84.   With regard to the probability of spread of ASBVd in Costa  Rica, Report ARP-002-2017 
considered the following factors : the suitability of the natural or managed environment for natural 
spread of the pest (section A) ; the presence of natural barriers (secti on B) ; the potential for 
movement with commodities or conveyances (section C) ; the intended use of the product 
(section  D); potential vectors of the pest in the PRA area  (section E) ; and potential natural enemies 
of the pest in the PRA area  (section F) . 
a. The probability related to the suitability of the natural or managed environment for natural 
spread of the pest (section A) was deemed to be high (3 points), after it was determined 
that the environment is ideal for the spread of the pest, given that host pl ants are found 
across the PRA area.291 
b. The probability related to the presence of natural barriers (section B) was deemed to be 
high (3 points ), after it was determined that the country has  no natural barriers to prevent 
the spread of this pest.292 
c. The probability related to the potential for movement with commodities or conveyances 
(section C) was deemed to be medium  (2 points), after it was determined that the product 
is to be distributed t hroughout the country for sale.293 
d. The probability related to the intended use of the product (section D) was deemed to be 
medium  (2 points), after it was determined that the intended use  of the product  is 
consumption.294 
e. The probability related to potential  vectors of the pest in the PRA area (section E) was 
deemed to be low (1 point), after it was determined that the pest has no known vector.295 
f. The probability related to potential natural enemies of the pest in PRA areas (section F) 
was deemed to be high (3  points), after it was determined that this pest has no natural 
enemies.296 
 
287 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
288 ARP-002-2017, (Exhibit MEX -84), p. 39.  
289 ARP-002-2017, (Exhibit MEX -84), p. 39.  
290 ARP-002-2017, (Exhibit MEX-84), p. 39.  
291 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing INEC, Crops (2015), (Exhibit CRI -63); and INEC, 
Agricultural statistical atlas (2015), (Exhibit CRI -64)). 
292 ARP-002-2017, (Exhibit MEX -84), p. 40.  
293 ARP-002-2017, (Exhibit MEX -84), p. 40.  
294 ARP-002-2017, (Exhibit MEX -84), p. 40.  
295 ARP-002-2017, (Exhibit MEX -84), p. 40 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
296 ARP-002-2017, (Exhibit MEX -84), p. 40 (citing Ploetz et al. (2011), (Exhibit MEX -56)). WT/DS524/R  
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  2.85.   The probability of spread after establishment assessment table (Table 5) contains the 
following results297: 
A B C D E F Cumulative  
High 3  High 3  Medium 2 Medium 2 Low 1  High 3  Medium 14/18  
 
2.1.2.3.3   Assessment of potential economic consequences  
2.86.   With regard to the potential economic consequences, Report ARP-002-2017 considered the 
economic effects of the pest and its environmental impact.  
2.87.   Report ARP-002-2017 determined that ASBVd is significant and that the probability of effects 
was high (3 points), with effects such as : 
a. Crop losses, in yield and quality.  
b. Effects on export market access.  
c. Changes to producer costs or input demands, including control costs . 
d. Changes to domestic or foreign consumer demand for a product resulting from quality 
variability . 
e. Feasibility and cost of eradication or containment.  
f. Resources needed for additional research and advice.298 
g. Vallejo Pérez et al.  (2017) estimate that the pest  could cause economic losses of 
USD 6,650 per hectare per year.299 
h. Vallejo Pérez et al. (2017) estimate that crop output could fall by between 730  kg/ha and 
1,710  kg/ha ( from an average national yield of 9,850  kg/ha in Mexico).300 
2.88.   Report ARP-002-2017 states that, in countries where ASBVd is present, reported average crop 
losses have been  30%; on average , 80% of fruits are rejected at the packing stage ; and there has 
been a significant reduction in the yield of symptomless infected trees.301 
2.89.   Report ARP-002-2017 found that the probability of environmental consequences was low 
(1 point), given that:  
a. The introduction of ASBVd would have a negative effect on native avocado germplasm and 
would therefore be detrimental to biodiversity.  
b. There is uncertainty about t he potential of this viroid to infect other plant species of the 
Persea  genus, such as the aguacatillo ( Persea caerulea ), a tree on which quetzal birds 
feed, creating potential biodiversity consequences . Report ARP-002-2017 adds that , while 
ASBVd has been transmitted to Persea schiedeana  only as part of scientific studies, the 
possibility cannot be ruled out that, in response to higher inoculum pressure, it could be 
transmitted to other species of the genus Persea  and even native Laura ceae species.302 
 
297 ARP-002-2017, (Exhibit MEX -84), p. 40. 
298 ARP-002-2017, (Exhibit MEX -84), pp. 40 -41. 
299 ARP-002-2017, (Exhibit MEX -84), p. 41 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
300 ARP-002-2017, (Exhibit MEX -84), p. 41 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
301 ARP-002-2017,  (Exhibit MEX -84), p. 41.  
302 ARP-002-2017, (Exhibit MEX -84), p. 41.  WT/DS524/R  
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  2.90.   The economic consequences assessment table (Table 6) contains the following results303: 
Economic impact  Environmental impact  Cumulative  
High 3  Low 1  Medium 4/6 
 
2.1.2.3.4   Conclusion of the pest risk assessment  
2.91.   Report ARP -002-2017 sets out the following cumulative risk score in Table 7304: 
Table 3 
cumulative score  Table 4 
cumulative score  Table 5 
cumulative score  Table 6 
cumulative score  Cumulative risk 
score  
14.63/15  7/12 14/18  4/6 39.63/51305 
 
2.92.   Report ARP-002-2017 concluded that the cumulative risk score indicates a high level of risk, 
in accord ance with Manual NR -ARP-PO-01_M -01, and that, as a result of the risk assessment  and 
according to the Manual , ASBVd is a high -risk pest and appropriate pest risk managem ent measures 
should therefore be considered.306 
2.1.2.4   Stage 3 : Pest risk management  
2.93.   Report ARP-002-2017 states that, based on the information arising from the risk analysis, the 
application of specific phyto sanitary measures is recommended ; that Costa  Rica is free of the pest 
ASBVd and should therefore adopt the necessary phytosanitary measures to prevent its entry into 
Costa  Rican territory ; and that , in that regard,  the measures adopted should achieve the "maximum 
level of phytosanitary protection".307 
2.94.    Report ARP-002-2017 indicates  that inspections at entry points are not sufficient to ensure 
phytosanitary security, given that ASBVd is often asymptomatic in fruit and that specific tests are 
needed to detect it.308 
2.95.   Report ARP-002-2017 recommends the following phyto sanitary measures in addition to the 
phytosanitary certificate:  
a. Consignments must be accompanied by an official phytosanitary certificate issued by the 
country of origin, which indicates, in the section for additional declarations, that the fruit 
is free o f ASBVd ; or 
b. Consignments must be accompanied by an official phytosanitary certificate issued by the 
country of origin, which indicates, in the section for additional declarations, that the fruit 
comes from a place of production free of ASBVd (previously re cognized by the SFE) ; or 
c. Consignments must adhere to a systems approach programme established bilaterally .309 
2.96.   Report ARP-002-2017 contains the following general recommendations for the 
SFE Directorate : 
 
303 ARP-002-2017, (Exhibit MEX -84), p. 41.  
304 ARP-002-2017, (Exhibit MEX -84), pp. 41 -42. 
305 This figure was corrected by Costa Rica, from (39.63/51) to (39.67/51), in the 
Corrigenda  ARP-002-2017 (2019), (Exhibit MEX -131). Costa Rica states that "in July 2019, corrigenda to the 
PRAs were issued, which correct certain numerical errors, but do not alter the substance of the original PRAs". 
(Costa Rica's first written communication, fns  62 and 211).  
306 ARP-002-2017, (Exhibit MEX -84), p. 42.  
307 ARP-002-2017, (Exhibit MEX -84), p. 42.  
308 ARP-002-2017, (Exhibit MEX -84), p. 42.  
309 ARP-002-2017, (Exhibit MEX -84), pp. 42 -43 and 49.  WT/DS524/R  
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  a. Determine the absence of ASBVd at the entry point, by sampling and testing.  
b. Continue to monitor avocado -producing areas actively.  
c. Teach producers about the importance of using certified seed.  
d. Step up programmes on good agricultural practices for avocado.  
e. Regulate the use for propagation of seeds from avocados imported for consumption.310 
2.97.   The following general requirements for fresh consumer products are outlined in 
Report  ARP-002-2017: (i) they must be properly packaged and identified and free of plant debri s, 
soil, snails and slugs ; and (ii)  they shall be subject to phytosanitary controls at the entry point.311 
2.1.2.5   ASBVd datasheet  
2.98.   Report ARP-002-2017 contains  in Annex 1  a datasheet on ASBVd, entitled Data sheet for 
ARP 001-2014.312 
2.99.   The following characteristics of ASBVd are listed in Report ARP-002-2017:  
a. Common name of the pest : English : Avocado sunblotch ; Spanish : Mancha de sol ; 
acronym : ASBVd.313 
b. Classification : taxonomic tree : V irus, Viroids, Avsunviroidae, Avsunviroid, 
Avocado  sunblotch viroid.314 
c. Hosts : Reported as a disease of the avocado variety (Persea american a), which is its only 
natural host315; ASBVd  attacks the leaves, stems and fruits.316 
d. Geographical distribution : ASBVd has been reported in Israel, Spain, South  Africa, the 
United  States , Guatemala317, Mexico (present with out details of its  distribution)318, 
Peru319, Venezuela320 and Australia.321 
e. Symptoms : The datasheet states that the symptoms of sunblotch were first described by 
Horne and Parker322, and that , although they vary widely depending on the cultivar, the 
environment and the variant of the viroid, the most typical are:  
i. Yellow, pink, white or reddish streaks on young branches or shoots.323 
 
310 ARP-002-2017, (Exhibit MEX -84), p. 43.  
311 ARP-002-2017, (Exhibit MEX -84), p. 50.  
312 ARP-002-2017, (Exhibit MEX -84), p. 56.  
313 ARP-002-2017, (Exhibit MEX -84), p. 56.  
314 ARP-002-2017, (Exhibit MEX -84), p. 56 (citing CABI, Datasheet report for ASBVd,  
(Exhibit CRI -102)). 
315 ARP-002-2017, (Exhibit MEX -84), p. 56 (citing Horne (1934), (Exhibit CRI -138)). 
316 ARP-002-2017, (Exhibit MEX -84), p. 56 (citing CABI, Datasheet report for ASBVd,  
(Exhibit CRI -102)). 
317 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing Campos Rojas  et al. (2011), (Exhibit MEX -51)). 
318 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing SINAVEF, Update of the inventory list  (2010), 
(Exhibit  CRI-13)). 
319 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing Vargas et al. (1991), (Exhibit CRI -137)). 
320 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing Rondón and Figueroa (1976), (Exhibit CRI -139)). 
321 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing Dale and Allen (1979), (Exhibit CRI -115)). 
322 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing WM.T. Horne and E.R. Parker, "The Avocado disease 
called sunblotch", Phytopathology , Vol. 21 (1931), pp. 235 -238 (Horne and Parker (1931)), (Exhibit CRI -123)). 
323 ARP-002-2017, (Exhibit MEX -84), p. 57.  WT/DS524/R  
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  ii. The fruit develop smooth, sunken yellow, white or reddis h longitudinal patches .324 
Depending on the degree of infection, the patches may be more likely to appear on the 
top half of the fruit ; when the damage is severe, hard necrotic lesions can be seen ; and 
symptoms may appear in fruit measuring just 1 centimetr e (cm) and often develop in 
most of the fruit on the tree.325 
iii. The trees are stunted, bowed, malnourished, with sprawling non -productive secondary 
limbs and cracked bark on their branches and trunks ; they are less vigorous, with short 
internodes and little foliage, and display a recumbent manner of growth, with branches 
spreading horizontally.326 
iv. The leaves may have white -yellow or chlorotic mottling or spotting (variegation), which 
may cause the tip  of the leaf to become distorted and sometimes affects only part of 
the tree.327 
v. The bark of the trunk and large branches appears cracked (alligator skin), which is more 
obvious on the top side of the branch.328 
f. The datasheet notes that, in addition to th e symptoms described, the pest can occur 
asymptomatically, whereby high concentrations of the viroid are found in the tissues, but 
it does not result in the characteristic symptoms of variegated or bleached foliage or the 
symptoms seen in the fruit329; and that high concentrations of the pest in symptomless 
trees have also affected the ability to transmit the pest through the seed.330 
g. The datasheet indicates  that Semancik and Szychowski categorized the different 
nucleotide sequence variants of ASBVd as follow s: ASBVd -B (bleached), ASBVd -V 
(variegated), ASBVd -Sc (symptomless carrier) ; and that the same authors indicate that it 
is impossible to differentiate between a healthy leaf and one from a symptomless tree just 
by looking with the naked eye.331 
h. Biology : The datasheet states that sunblotch is caused by the ASBVd viroid, which is a 
non-encapsulated, single -stranded RNA molecule of between 246 and 251 nucleotides and 
with a commonly varying sequence ; that a total of 60 sequence variants have been 
identified f rom 122 clones ; that there may even be variants associated with a single 
tree332; that ASBVd replicates and accumulates in the chloroplast of its host ; and that, 
once the pathology is established, the chlorotic and variegated symptoms appear 
irregularly and  unevenly, linked to yield losses and an increase in the seed transmission 
rate of the disease .333 The datasheet also notes that the methodology described by Schnell 
et al. is used to diagnose and index ASBVd, which consists of detecting the pathogen in 
nucleic acid extracts through the reverse transcriptase – polymerase chain reaction 
(RT-PCR); that the published methodology was accurate for more than 85 % of assays and 
was much quicker than wedgebud grafting and waiting for symptom expression334; and 
that a study by Luttig and Manicom outlines a more precise and sensitive method, since 
the addition of polyvinylpyrrolidone removes polyphenols from old tissue, allowing for 
detection in adult leaves and not only in young leaves.335 
 
324 ARP-002-2017, (Exhibit MEX -84), p. 57.  
325 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing J.R. Saucedo Carabe z, D. Téliz Ortiz, M.R. Vallejo 
Pérez and H. Beltrán Peña, "The Avocado Sunblotch Viroid: An Invisible Foe of Avocado", Viruses , Vol. 11 
(2019), p.  491 (Saucedo Carabez et al. (2019)), (Exhibit MEX -175)). 
326 ARP-002-2017, (Exhibit MEX -84), p. 57 (citing Hor ne and Parker (1931), (Exhibit CRI -123)). 
327 ARP-002-2017, (Exhibit MEX -84), p. 58 (citing Horne and Parker (1931), (Exhibit CRI -123)). 
328 ARP-002-2017, (Exhibit MEX -84), p. 58.  
329 ARP-002-2017, (Exhibit MEX -84), p. 61 (citing Semancik and  Szychowski (1994), (Exhibit MEX -52)). 
330 ARP-002-2017, (Exhibit MEX -84), p. 61.  
331 ARP-002-2017, (Exhibit MEX -84), p. 61 (citing Semancik and  Szychowski (1994), (Exhibit MEX -52)). 
332 ARP-002-2017, (Exhibit MEX -84), p. 62 (citing Hadidi et al. (2003), (Exhibit  CRI-121)). 
333 ARP-002-2017, (Exhibit MEX -84), p. 62 (citing P.R. Desjardins, "Avocado Sunblotch", in 
T.O. Diener  (ed.), The Viroids (Plenum Press: New York, 1987) (Desjardins (1987)), (Exhibit CRI -101)). 
334 ARP-002-2017, (Exhibit MEX -84), p. 62 (citing Schnell et al. (1997), (Exhibit MEX -68)). 
335 ARP-002-2017, (Exhibit MEX -84), p. 62 (citing M. Luttig and B.Q. Manicom, "Application of a Highly 
Sensitive Avocado Sunblotch Viroid Indexing Method", South  Africa n Avocado Growers' Association 
Yearbook  1999, Vol. 22 (1999), pp. 55 -60 (Luttig and Manicom (1999)), (Exhibit MEX -69)). WT/DS524/R  
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  i. Spread : The datasheet states th at the principal means of infection is transmission through 
propagati on material, or implanted tissue and the introduction of seedlings infected with 
ASBVd grown from infected rootstock336; that several outbreaks of ASBVd occur when 
seedlings used as rootst ock are produced from seeds taken from asymptomatic fruit, in 
which seed transmission is very high (95 %)337; that mechanical transmission is possible 
through razor -slash inoculation and/or graft inoculation with filter paper containing 
extracts from infecte d trees, although this method is less efficient than graft 
transmission338; that Desjardins et al. demonstrated that transmission through pollen was 
between 1 % and 4 %339; and that Whitsell demonstrated transmission through natural root 
graftage.340 
j. Economic importance and phytosanitary risk : The datasheet states  that ASBVd is a 
regulated pest in Costa  Rica; that New  Zealand  has adopted regulations for the 
importation of fresh avocado  from areas where the pest is known to be present341; that 
Saucedo Ca rabez et al.  found that symptomatic, sunblotch infected trees suffered a 
significant reduction in yield342; that asymptomatic Hass avocado trees have reductions of 
yield in the range of 15 -30%; that the yield of symptomatic trees may fall by as much as 
75% and that the fruit may weigh up to 40 % less; that the incidence of symptomatic fruits 
is 46-62% in Hass avocado trees343; that symptomatic fruit ripen in an unusual manner 
and their content of ethylene and oils was affected .344 The datasheet also notes  that 
attempts were made to inactivate sunblotch in avocado scion material, seeds and seedlings 
using heat treatment, which demonstrated that ASBVd can withstand any temperature 
that avocado tissue can345; and that, bearing in mind th e transmission mechanisms, 
spread, control difficulties and geographical distribution of avocado crops in Costa  Rica, it 
represents a potential risk, both for endemic cultivars and for commercial farms, impacting 
negatively on production.346 
k. Control : The da tasheet notes that the removal of infected trees is the only known method 
of controlling ASBVd347; that the disease is difficult to control ; and that there are no 
treatments or resistant varieties.348 
l. Bibliography : The datasheet also sets out the cited literature on ASBVd.349 
2.1.3   Report ARP-006-2016  
2.100.   Report ARP-006-2016350, of July 2017, entitled "Pest Risk Analysis for Avocado sunblotch 
viroid (ASBVd) for fresh avocado fruit ( Persea americana  Mill.) for consumption and avocado plants 
(Persea americana  Mill.) for planting ", states that it was prepared by the UARP of the SFE of 
Costa  Rica, "in order to determine the phytosanitary risk associated with the importation of fresh 
 
336 ARP-002-2017, (Exhibit MEX -84), p. 62.  
337 ARP-002-2017, (Exhibit MEX -84), pp. 62 -63 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
338 ARP-002-2017, (Exhibit MEX-84), p. 63 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
339 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing Desjardins et al. (1979), (Exhibit MEX -60)). 
340 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing R. Whitsell, "Sun -blotch disease of avocados", 
California  Avocado Society Yearbook , (1952), pp. 215 -240 (Whitsell (1952)), (Exhibit MEX -42)). 
341 ARP-002-2017, (Exhibit MEX -84), p. 63.  
342 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing J.R. Saucedo Carabez, D. Téliz Ortiz, S. Ochoa 
Ascencio, D. Ochoa Martínez,  M.R. Vallejo Pérez and H. Beltrán Peña, "Effect of Avocado sunblotch viroid 
(ASBVd) on avocado yield in Michoacán, México", European Journal of Plant Pathology , Vol. 138 
(Springer,  2014), pp. 799 –805 (Saucedo Carabez et al. (2014)), (Exhibit MEX -45)). 
343 ARP-002-2017, (Exhibit MEX -84), p. 63.  
344 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing Mohamed and Thomas (1980), (Exhibit CRI -125)). 
345 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing P.R. Desjardins, R.J. Drake and S.A. Swiecki, 
"Infectivity studies of avocado sunblotch disease causal agent, possibly a viroid rather than a virus", 
Plant Disease , Vol. 64 (1980) (Desjardins et al. (1980)), (Exhibit CRI -116)). 
346 ARP-002-2017, (Exhibit MEX -84), p. 63.  
347 ARP-002-2017, (Exhibit MEX -84), p. 64 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
348 ARP-002-2017, (Exhibit MEX -84), p. 64.  
349 ARP-002-2017, (Exhibit MEX -84), pp. 64 -65. 
350 Servicio Fitosanitario del Estado de Costa Rica, Unidad de Análisis de Riesgo de Plagas, "Análisis de 
Riesgo de Plagas por plaga para Avocado Sunblotch Viroid  (ASBVd), para frutos frescos de aguacate para 
consumo ( Persea americana Mill.) y plantas para plantar de aguacate ( Persea americana Mill.)" (2017) 
(ARP-006-2016), (Exhibit MEX -85). WT/DS524/R  
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  avocado fruit ( Persea americana  Mill.) for consumption and plants of the same species for  planting, 
from countries where the pest, Avocado sunblotch viroid (ASBVd), is present".351 
2.101.   Report ARP-006-2016 follows the same methodology and contains the same information on 
ASBVd as Report ARP-002-2017. However, while Report ARP-002-2017 was prepared i n order to 
determine the risk of plant pests associated with the importation of fresh avocado  fruit for human 
consumption from Mexico352, Report ARP-006-2016 was produced to determine the phytosanitary 
risk associated with the importation of fresh avocado f ruit for consumption and plants of the same 
species for planting from countries where the pest, ASBVd, is present .353 In other words, while 
Report ARP-002-2017 is specific to Mexico, Report ARP-006-2016 was produced for those countries 
in which Costa  Rica has determined that ASBVd is present, i.e. Israel, Spain, South  Africa , the 
United  States , Guatemala, Mexico, Peru, Venezuela, Australia and Ghana ; and while Report 
ARP-002-2017 addresses  the risk a ssociated with the importation of fresh avocado  fruit for 
consumption, Report ARP-006-2016 also includes  the risk associated with the importation of avocado 
plants for planting.  
2.102.   Mexico contends  that, to the extent that the Reports ARP -002-2017 and ARP -006-2016 are 
only similar in terms of regulating the importation of fresh avocado for consumption, the Panel's 
findings with respect to Report ARP-002-2017 must also apply mutatis mutandis  to 
Report  ARP-006-2016 and vice versa .354 
2.1.4   Resolution DSFE -003-2018  
2.103.   Resolution DSFE -003-2018355, issued on 2 9 January  2018 by the SFE, refers to  
Report  ARP-002-2017.356 This Resolution  replaced and repealed Resolutions DSFE -03-2015 of 
22 April 2015357 and DSFE -11-2015 of 1 0 July 2015.358, 359 
2.104.   Resolution DSFE -003-2018 established the following phytosanitary requirements for imports 
of fresh avocado  fruit for consumption from Mexico:  
a. Consignments must be accompanied by  an official phytosanitary certificate issued by 
Mexico, which indicates, in the section for additional declarations, that the fruit is free of 
Conotrachelus aguacatae, Heilipus lauri and Maconelicoccus hirsutus .360 
b. In the case of ASBVd, one of the following three requirements must be met:  
i. Consignments must be accompanied by  an official phytosanitary certificate issued by 
Mexico, which indicates, in the section for additional declarations, that the fruit is free 
of ASBVd.  
 
351 ARP-006-2016, (Exhibit MEX -85), p. 3.  
352 ARP-002-2017, (Exhibit MEX -84), p. 3.  
353 ARP-006-2016, (Exhibit MEX -85), p. 3.  
354 Mexico's first written submission, para.  112. 
355 Servicio Fitosanitar io del Estado de Costa Rica, Dirección Ejecutiva, Resolución DSFE -003-2018 
(Resolution DSFE -003-2018), (Exhibit MEX -4). 
356 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 1.  
357 Resolution DSFE -03-2015 temporarily suspends the issuing of phytosanitary import ce rtificates for 
avocados from Australia, Spain, Ghana, Guatemala, Israel, Mexico, South  Africa  and Venezuela. ( Servicio 
Fitosanitario del Estado de Costa Rica, Dirección Ejecutiva, Resolución  DSFE -03-2015 (Resolution  DSFE -03-
2015), (Exhibit MEX -1), p. 3). 
358 Resolution DSFE -11-2015 established the following phytosanitary requirements for imports of 
avocado fruit for consumption from Mexico, with respect to ASBVd: (i)  products must come from plants grown 
in nurseries certified by the NPPO of the country of or igin, as free of ASBVd, previously recognized by the SFE 
of Costa  Rica; (ii)  products are required to come from a place of production free of ASBVd, previously 
recognized by the SFE of Costa Rica. Furthermore, fresh products for consumption must be properl y packaged 
and identified, be free of plant debris, soil, snails and slugs, and shall be subject to phytosanitary controls at 
the entry point. In addition, fruit samples shall be sent to the SFE nurseries in Pavas, San José, for planting 
and subsequent lab oratory analysis to determine whether they are free of ASBVd, by the Central Pest 
Diagnostic Laboratory of the Laboratory Department of the SFE. (Servicio Fitosanitario del Estado de Costa 
Rica, Dirección Ejecutiva, Resolución  DSFE -11-2015 ( Resolution DSFE -11-2015), (Exhibit MEX -3), p. 9) 
359 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 4.  
360 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 4.  WT/DS524/R  
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  ii. Consignments must be accompanied  by an official phytosanitary certificate issued by 
Mexico, which indicates, in th e section for additional declarations, that the fruit comes 
from a place  of production  free of ASBVd (previously recognized by the SFE).  
iii. Consignments must adhere to a systems approach programme established bilaterally, 
and which may be implemented, fo r example, through a work plan.361 
c. General requirements for fresh products for consumption : Products must be properly 
packaged and identified , and be free of plant debris, soil, snails and slugs.362 
2.105.   Resolution DSFE -003-2018 also provides that consignments shall be subject to laboratory 
tests upon arrival in the country.363 
2.1.5   Resolution DSFE -002-2018  
2.106.   Resolution DSFE -002-2018364, issued on 2 9 January  2018 by the SFE, refers to  
Report  ARP-006-2016.365 This Resolution replaced and repealed Resolution DSFE -03-2015 of 
22 April 2015.366, 367 
2.107.   Resolution DSFE -002-2018 established the following phytosanitary measures for the 
importation of regulated articles that are vectors of ASBVd, from any country in which the pest 
ASBVd is present:  
a. Fresh avocado fruit (Persea americana Mill.) for human consumption must meet one of 
the following requirements : 
i. Consignments must be accompanied  by an official phytosanitary certificate issued by 
the country of origin, which indicates, in the section for additional declarations, that 
the fruit is free of ASBVd.  
ii. Consignments must be accompanied  by an official phytosanitary certificate issued by 
the country of origin, which indicates, in the section for additional declarations, that 
the fruit comes from a place of production free of ASBVd (previou sly recognized by the 
SFE).  
iii. Consignments must adhere to a systems approach programme established bilaterally, 
and which may be implemented, for example, through a work plan.368 
b. Avocado ( Persea americana Mill.) plants for planting.  
i. Consignments must be accompanied  by an official phytosanitary certificate issued by 
the country of origin, which indicates, in the section for additional declarations, that 
the plants come from mother plants which are free of ASBVd and which are subject to 
indexing and samplin g at least twice a year . Laboratory analysis results must be 
attached . After importation, consignments shall be subject to post -entry quarantine 
for a period of up to six  months.369 
 
361 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 4.  
362 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 5.  
363 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 5.  
364 Servicio Fitosanitario del Estado de Costa Rica, Dirección Ejecutiva, Resolución DSFE -002-2018 
(Resolution DSFE -002-2018), (Exhibit MEX -103). 
365 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 1  
366 Resolutio n DSFE -03-2015 temporarily suspends the issuing of phytosanitary import certificates for 
avocados from Australia, Spain, Ghana, Guatemala, Israel, Mexico, South  Africa  and Venezuela. 
(Resolution  DSFE -03-2015, (Exhibit MEX -1), p. 2).  
367 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4  
368 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4.  
369 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4.  WT/DS524/R  
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  2.108.   Resolution DSFE -002-2018 also provides that consignments shall be subject t o laboratory 
tests upon arrival in the country.370 
2.109.   Mexico has argued that, to the extent that Resolutions DSFE -003-2018 and DSFE -002-2018 
are similar in terms of regulating the importation of fresh avocado for consumption, the Panel's 
findings with respect to Resolution DSFE -003-2018 must also apply mutatis mutandis  to Resolution 
DSFE -002-2018 and vice versa.371 
2.2  International Standards for Phytosanitary Measures (ISPM)  
2.2.1   Background : The International Plant Protection Convention (IPPC) and its 
international stan dard-setting activities  
2.110.   The International Plant Protection Convention ( IPPC)372 is an international treaty deposited 
with the United Nations Food and Agriculture Organization (FAO), which seeks to "secur [e] common 
and effective action to prevent the spread and introduction of pests of plants and plant products, 
and … promote appropriate measures for their control" .373 To this end, the IPPC provides a 
framework and a forum for international cooperation, harmonization and technical exchange 
between contracting parties in the phytosanitary domain.374 
2.111.   The IPPC was adopted in 1951 by FAO and entered into force the following year, superseding 
all previous international plant protection agreements .375 In 1992, the IPPC Secretariat was 
established at FAO headquarters in Rome and began its international standard -setting programme, 
which was adopted by FAO in 1993.376 
2.112.   The IPPC contracting parties sought to revise the Convention in 1995 to reflect contemporary 
phytosanitary concepts and the role of the IPPC in  relation to the SPS  Agreement  resulting from the 
WTO Uruguay Round . The New Revised Text of the IPPC was adopted in 1997 and entered into force 
in 2005 .377 The Commission on Phytosanitary Measures (CPM) was established in 2005 as the 
Convention's governing  body.378 
2.113.   The IPPC currently has 184 contracting parties, including Mexico and Costa  Rica.379 
2.114.   The implementation of the IPPC requires the cooperation of national plant protection 
organizations (NPPO s) and regional plant protection organizations (RPPO s), whic h can act as regional 
coordination bodies for the fulfilment of IPPC objectives.380 
 
370 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 5.  
371 Mexico's first written submission, para.  109. 
372 Organización de las Naciones Unidas para la Alimentación y la Agricultura (FAO), Convención 
Internacional de Protección Fitosanitaria  (CIPF), hecha en Roma el 6 de diciembre de 1951, documento de las 
Naciones Unidas Resolución Nº 85/51, modificada por la C onferencia de la FAO, 20° período de sesiones, 
noviembre 1979, y en su 29° período de sesiones, noviembre 1997 (CIPF), (Exhibit MEX -82). 
373 Article I.1 of the IPPC.  
374 IPPC, Convention text, available at: https://www.ippc.int/es/core -activities/governance/convention -
text/ (accessed 30  November  2021).  
375 IPPC, History of the IPPC, available at: https://www.ippc.int/en/history -of-the-ippc/ (accessed 
30 November  2021).  
376 IPPC, History of the IPPC, available at: https://www.ippc.int/en/history -of-the-ippc/ (acces sed 
30 November  2021).  
377 IPPC, History of the IPPC, available at: https://www.ippc.int/en/history -of-the-ippc/ (accessed 
30 November  2021).  
378 FAO, Commission on Phytosanitary Measures, available at: http://www.fao.org/unfao/govbodies/gsb -
subject -matter/statutory -bodies -details/en/c/247/?no_cache=1  (accessed 30  November  2021).  
379 IPPC,  List of NPPOs of IPPC Contracting Parties, available at: 
https://www.ippc.int/en/countries/nppos/list -countries/  (accessed 30  November  2021).  
380 IPPC, Convention text, available at: https://www.ippc.int/es/core -activities/governance/convention -
text/ (accessed 30  November  2021).  WT/DS524/R  
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  2.115.   The IPPC Secretariat helps to ensure the fulfilment of IPPC objectives . It is hosted at 
FAO headquarters in Rome, Italy .381 The IPPC Secretariat's work programme includes the  
development of International Standard s for Phytosanitary Measures  (ISPMs).382 
2.116.   The CPM is the IPPC's global governing body . The CPM's members are IPPC contracting 
parties .383 The CPM meets every year to promote cooperation to help implement the objectives of 
the IPPC . Amongst other things, the CPM develops and adopts international standards.384 
2.117.   One of the CPM's subsidiary bodies is the Standards Committee385, which consists of 
25 members from each of the seven FAO regions and is responsible for ove rseeing the 
standard -setting process and managing the development of the ISPMs.386 
2.118.   As of November  2021, the CPM had adopted 45  ISPMs, although one of them has been 
revoked .387 
2.2.2   ISPMs identified by Mexico  
2.119.   The ISPMs identified by Mexico in this dispute , namely ISPM Nos. 1, 2, 4, 5, 6, 8, 11 and 32,  
are briefly described below  on the basis of their own text . 
2.2.2.1   ISPM No. 1: Phytosanitary principles for the protection of plants and the 
application of phytosanitary measures in international trade388 
2.120.   ISPM No. 1 was adopt ed in November  1993 and most recently revised in 2006.389 
2.121.   With regard to  its scope, this standard describes basic phytosanitary principles for the 
protection of plants that are embodied in the IPPC and elaborated upon in its ISPMs ; it covers 
principles rela ted to the protection of plants, including cultivated and non -cultivated/unmanaged 
plants, wild flora and aquatic plants, those regarding the application of phytosanitary measures to 
the international movement of people, commodities and conveyances, as wel l as those inherent in 
the objectives of the IPPC . According to its text, the standard does not alter the IPPC, extend existing 
obligations, or interpret any other agreement or body of law.390 
2.122.   ISPM No. 1 states that it aims to aid in the understanding of th e IPPC and provides guidance 
on the fundamental elements in phytosanitary systems ; and adds that the principles described 
reflect key elements of the IPPC, are related to the rights and obligations of contracting parties to 
the IPPC, and should be consider ed jointly , in accordance with the full text of the IPPC, and not 
interpreted individually.391 
 
381 IPPC, IPPC Secretariat, available at : https://www.ippc.int/en/about/secretariat/  (accessed 
30 November  2021).  
382 IPPC, The Commission on Phytosanitary Measures (CPM), available at: https://www.ippc.int/en/core -
activities/standards -and-implementation/  (accessed 30  November  2021).  
383 IPPC, The Commission on Phytosanitary Measures (CPM), available at: https://www.ippc.int/en/core -
activities/governance/cpm/  (accessed 30  November  2021).  
384 Article XI.2(b) of the IPPC; IPPC, The Commission on Phytosanitary Measures (CPM), available at: 
https://www.ippc.int/en/core -activities/governance/cpm/  (accessed 30 November  2021). See also Article  X of 
the IPPC.  
385 IPPC, Governance & Strategies, available at: https://www.ippc.int/en/core -activities/governance/  
(accessed 30 November 2021).  
386 IPPC, Standards Committee, available at: https://www.ippc.int/en/core -activities/standards -
setting/standards -committee/  (accessed 30 November  2021); and FAO, Standards Committee, available at: 
http://www.fao.org/unfao/govbodies/gsb -subject -matter/statutory -bodies -details/en/c/238/?no_cache=1  
(accessed 30 November 2021).  
387 IPPC, Adopted Standards, available at: https://www.ippc.int/en/core -activities/standards -
setting/ispms/  (accessed 30 November 2021). See also the response to question 1 from the Panel to the 
IPPC Secretariat.  
388 Secretaría de la CIPF, Principios fitosanitarios  para la protección de las plantas y la aplicación de 
medidas fitosanitarias en el comercio internacional , NIMF No.  1 (Roma, FAO en nombre de la Secretaría de la 
CIPF, adoptada en 2006, publicada en 2016) (ISPM No.  1), (Exhibit MEX -71). 
389 ISPM No.  1, (Exhibit MEX -71), p. 4.  
390 ISPM No.  1, (Exhibit MEX -71), p. 4.  
391 ISPM No.  1, (Exhibit MEX -71), p. 5.  WT/DS524/R  
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  2.123.   ISPM No. 1 covers the basic principles of sovereignty, necessity, managed risk, minimal 
impact, transparency, harmonization, non -discrimination, technical justification, cooperation, 
equivalence of phytosanitary measures and modification .392 It also addresses the operational 
principles under the IPPC, which are related to the establishment, implementation and monitoring 
of phytosanitary measures, an d to the administration of official phytosanitary systems . These 
operational principles are : pest risk analysis, pest listing, recognition of pest free areas and areas of 
low pest prevalence, official control for regulated pests, systems approach, surveill ance, pest 
reporting, phytosanitary certification, phytosanitary integrity and security of consignments, prompt 
action, emergency measures, provision of an NPPO, dispute settlement, avoidance of undue delays, 
notification of non -compliance, information exc hange and technical assistance.393 
2.2.2.2   ISPM No. 2: Framework for pest risk analysis394 
2.124.   ISPM No. 2 was adopted in November  1995 and most recently revised in 2007.395 
2.125.   With regard to  its scope, ISPM No. 2 provides a framework that describes the pest risk 
analysis (PRA)396 process within the scope of the IPPC, and introduces the three PRA stages, i.e. 
initiation, pest risk assessment and pest risk management .397 This standard provides detailed 
guidance on Stage 1 (initiation)398, in particular with regard to i nitiation points, determination of an 
organism as a pest, defining the PRA area and checking whether there are any previous PRAs .399 
ISPM No.  2 summarizes Stages 2 (pest risk assessment) and 3 (pest risk management), and 
addresses issues generic to the enti re PRA process, related to information gathering, documentation, 
risk communication, uncertainty and consistency.400 
2.126.   According to its text, this ISPM is "conceptual and is not a detailed operational or 
methodological guide for assessors" .401 ISPM No. 2 refer s to other ISPMs for further analysis through 
PRA Stages 2 and 3 .402 One of those mentioned is ISPM No. 11, which provides specific guidance on 
PRA of quarantine pests.403 
2.2.2.3   ISPM No. 4: Requirements for the establishment of pest free areas404 
2.127.   ISPM No. 4 was adopted in November  1995.405 
2.128.   With regard to its scope, this ISPM describes requirements for the establishment and use of 
pest free areas (PFAs)406 as a risk management option for phytosanitary certification of plants and 
plant products and other regula ted articles exported from the PFA or to support the scientific 
justification for phytosanitary measures taken by an importing country for protection of an 
endangered PFA.407 
 
392 ISPM No.  1, (Exhibit MEX -71), p. 4.  
393 ISPM No.  1, (Exhibit MEX -71), pp. 7 -11. 
394 ISPM No.  2, (Exhibit MEX -72). 
395 ISPM No.  2, (Exhibit MEX -72), p. 4.  
396 ISPM No. 2 states that the PRA "provides the rationale for phytosanitary measures for a specified 
PRA area". ISPM No.  2, (Exhibit MEX -72), p. 5.  
397 ISPM No.  2, (Exhibit MEX -72), p. 4.  
398 ISPM No.  2, (Exhibit MEX -72), p. 4.  
399 ISPM No.  2, (Exhibit MEX -72), pp. 7 -12. 
400 ISPM No.  2, (Exhibit MEX -72), p. 4.  
401 ISPM No.  2, (Exhibit MEX -72), p. 6.  
402 ISPM No.  2, (Exhibit MEX -72), pp. 6 and 13.  
403 ISPM No.  2, (Exhibit MEX -72), p. 13.  
404 Secretaría de la CIPF, Requisitos para el establecimiento de áreas libres de plagas , NIMF No.  4 
(Roma, FAO en nombre de la Secretaría de la CIPF, adoptada en 1995, publicada en 2017) (ISPM No.  4), 
(Exhibit MEX -73). 
405 ISPM No.  4, (Exhibit MEX -73), p. 4.  
406 ISPM No.  4 defines a PFA as "an area in which a specific pest does not occur as demons trated by 
scientific evidence and in which, where appropriate, this condition is being officially maintained." (ISPM No.  4, 
(Exhibit MEX -73), p. 4. See also Secretaría de la CIPF, Glosario de términos fitosanitarios , NIMF No.  5 (Roma, 
FAO en nombre de la S ecretaría de la CIPF, adoptada en 2018, publicada en 2019) (ISPM No.  5), 
(Exhibit  MEX-74), p. 10).  
407 ISPM No.  4, (Exhibit MEX -73), p. 4.  WT/DS524/R  
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  2.129.   ISPM No. 4 states that three main components or stages are considered in the estab lishment 
and subsequent maintenance of a PFA : (i) systems to establish freedom (general surveillance and 
specific surveys) ; (ii) phytosanitary measures to maintain freedom ; and (iii)  checks to verify 
freedom has been maintained . The standard indicates  that the methods used to achieve these 
components may include data assembly, surveys, regulatory controls, audit and documentation.408 
2.130.   In this regard, ISPM No. 4 sets out general requirements for PFAs (determination of a PFA, 
establishment and maintenance of a PFA, and documentation and review in respect of the 
establishment and maintenance of a PFA) ; and specific requirements of different types of PFA (entire 
country, uninfested part of a country in which a limited infested area is present, and uninfested part 
of a country situated within a generally infested area).409 
2.2.2.4   ISPM No. 5: Glossary of phytosanitary terms410 
2.131.   ISPM No. 5 was adopted in 1999 .411 Since then, the standard has been modified several  
times and was most recently revised in 20 21.412 
2.132.   ISPM No. 5 is a lis ting of terms and definitions with specific meaning for phytosanitary 
systems worldwide, which has been developed to provide a harmonized internationally agreed 
vocabulary associated with the implementation of the IPPC and ISPMs .413 ISPM No. 5 is, as indica ted 
therein, a "reference standard" "[t]he purpose of [which] is to increase clarity and consistency in 
the use and understanding of terms and definitions which are used by contracting parties for official 
phytosanitary purposes, in phytosanitary legislati on and regulations, as well as for official 
information exchange".414 
2.2.2.5   ISPM No. 6: Guidelines for surveillance415 
2.133.   ISPM No. 6 was adopted in November  1997416 and most recently revised in 2018.417 
2.134.   With regard to its scope, this ISPM refers to "the components of survey and monitoring 
systems for the purpose of pest detection and the supply of information for use in pest risk analyses, 
the establishment of pest free areas and, where appropriate, the preparation of pest lists" .418 These 
components const itute a phytosanitary surveillance system.419 
2.135.   According to ISPM No. 6, there are two major types of surveillance systems : general 
surveillance420 and specific surveys.421, 422 With respect to general surveillance, ISPM No. 6 covers 
sources of pest information ; the collection, storage and retrieval of information ; and the use of 
 
408 ISPM No.  4, (Exhibit MEX -73), p. 5.  
409 ISPM No.  4, (Exhibit MEX -73), pp. 4 -9. 
410 ISPM No.  5, (Exhibit MEX -74). 
411 ISPM No.  5, (Exhibit MEX -74), p. 6.  
412 IPPC Secretariat, Glossary of phytosanitary terms , ISPM No.  5 (Rome, FAO on behalf of the IPPC 
Secretariat, adopted in 2021, published in 2021), available at: https://www.ippc.int/en/publications/glossary -
phytosanitary -terms/  (accessed 30  November  2021).  
413 ISPM No.  5, (Exhibit MEX -74), p. 6.  
414 ISPM No.  5, (Exhibit MEX -74), p. 6.  
415 Secretaría de la CIPF, Directrices para la vigilancia , NIMF No.  6 (Roma, FAO en nombre de la 
Secretaría de la CIPF, adoptada en 1997, publicada en 2016) (ISPM No.  6), (Exhibit MEX -75). 
416 ISPM No.  6, (Exhibit MEX -75), p. 4.  
417 Although ISPM No.  6 was revised in 2018, Mexico has referred to the origin al text from 1997, now 
revoked. This description refers to the 1997 version of ISPM No.  6. 
418 ISPM No.  6, (Exhibit MEX -75), p. 4; and CIPF, Guía de la CIPF sobre Vigilancia Fitosanitaria  (2019) , 
p. 1, available at: https://www.fao.org/3/ca3764es/CA3764ES.pdf  (accessed 30  November  2021).  
419 CIPF, Guía de la CIPF sobre Vigilancia Fitosanitaria  (2019) , p. 1, available at: 
https://www.fao.org/3/ca3764es/CA3764ES.pdf  (accessed 30  November  2021).  
420 ISPM No.  6 describes general surveillance as "a process whereby information on particular pests 
which are of concern for an  area is gathered from many sources, wherever it is available and provided for use 
by the NPPO." (ISPM No.  6, (Exhibit MEX -75), p. 4).  
421 Specific surveys (described as "specific surveillance" in the 2018 revised version of ISPM No.  6), 
according to this IS PM, are "procedures by which NPPOs obtain information on pests of concern on specific 
sites in an area over a defined period of time" (ISPM No.  6, (Exhibit MEX -75), p. 4).  
422 ISPM No.  6, (Exhibit MEX -75), p. 4.  WT/DS524/R  
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  information gathered through general surveillance .423 Regarding specific surveys, ISPM No. 6 covers 
pest surveys, commodity or host surveys and targeted and random sampling.424 
2.136.   ISPM No. 6 also describes good surveillance practice, technical requirements for diagnostic 
services that support general surveillance and specific survey activities, the keeping of records 
derived from general surveillance and specific surveys, and the requirement f or NPPO 
transparency.425 
2.137.   ISPM No. 6 states  that the verified information acquired may be used to determine the 
presence or distribution of pests in an area, or on a host or commodity, or their absence from an 
area (in the establishment and maintenance of PFAs).426 
2.2.2.6   ISPM No. 8: Determination of pest status in an area427 
2.138.   ISPM No. 8 was adopted in November  1998428 and was last revised in 2021.429 
2.139.   With regard to  its scope, this ISPM describes the content of a pest record430 and the use of 
pest records and other information in the determination of pest status in an area , and also provides 
descriptions of pest status categories as well as recommendations for good report ing practices.431 
2.140.   ISPM No. 8 states  that "[p]est records are essential components of the information used to 
establish the status of a pest in an area"432, and that "[a] pest record provides information 
concerning the presence or absence of a pest, the time and location of the observations, host(s) 
where appropriate, the damage observed, as well as references or other relevant information 
pertaining to a single observation".433 
2.141.   Pest status is outlined in this ISPM in terms of three categories : (i) presenc e of the pest, 
leading to determinations such as "present in all parts of the country", "present in some areas only" , 
etc.; (ii) absence of the pest, leading to determinations such as "absent : no pest records", "absent : 
pest eradicated", "absent : pest no l onger present" , etc.; and (iii)  transience of the pest, leading to 
determinations such as "transient : non-actionable", "transient : actionable, under surveillance", and 
"transient : actionable, under eradication".434 
2.142.   This ISPM also states that "[a]ll importin g and exporting countries need information 
concerning the status of pests for risk analysis, the establishment of and compliance with import 
regulations, and the establishment and maintenance of pest free areas".435 
 
423 ISPM No.  6, (Exhibit MEX -75), p. 5.  
424 ISPM N o. 6, (Exhibit MEX -75), pp. 5 -7. 
425 ISPM No.  6, (Exhibit MEX -75), pp. 7 -8. 
426 ISPM No.  6, (Exhibit MEX -75), p. 4.  
427 Secretaría de la CIPF, Determinación de la situación de una plaga en un área , NIMF No.  8 (Roma, 
FAO en nombre de la Secretaría de la CIPF, adoptada en 1996, publicada en 2017) (ISPM No.  8), 
(Exhibit  MEX-76). 
428 ISPM No.  8, (Exhibit MEX -76), p. 4.  
429 IPPC Secretariat, Determination of pest status in an area , ISPM No.  8 (Rome, FAO on behalf of th e 
IPPC Secretariat, adopted in 2021, published in 2021) (ISPM No.  8), available at: 
https://assets.ippc.int/2021/04/ISPM_08_ 2021_En.pdf  (accessed 30  November  2021).  
430 ISPM No.  8 defines a pest record as "documented evidence that indicates the presence or absence of 
a specific pest at a particular location and certain time, within an area, usually a country, under described 
circumstances". (ISPM No.  8, (Exhibit MEX -76), p. 5).  
431 ISPM No.  8, (Exhibit MEX -76), pp. 4 -10. 
432 ISPM No.  8, (Exhibit MEX -76), p. 4.  
433 ISPM No.  8, (Exhibit MEX -76), p. 4.  
434 ISPM No.  8, (Exhibit MEX -76), pp. 5 and 7 -9. 
435 ISPM No.  8, (Exhibit MEX -76), p. 4.  WT/DS524/R  
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  2.2.2.7   ISPM No. 11: Pest risk analysis for quara ntine pests436 
2.143.   ISPM No. 11 was adopted in April 2001; supplements were adopted in 2003 and 2004, and 
an annex in 2013.437 
2.144.   With regard to  its scope, this ISPM provides details for the conduct of PRA to determine if 
pests are quarantine pests, and describes the integrated processes to be used for risk assessment 
as well as the selection of risk management options.438 
2.145.   In accordance with ISPM No. 11, PRA for quarantine pests follows a process defined by three 
stages,  which are  outlined in the ISPM (initiation, risk assessment and risk management).439 
2.146.   According to ISPM No. 11, Stage 1 (initiation) involves identifying the pest(s) and pathways 
which ar e of quarantine concern and should be considered for risk analysis in relation to the identified 
PRA area .440 This stage covers initiation points, the identification of a PRA area and information 
gathering.441 
2.147.   During Stage 2 (risk assessment), ISPM No. 11 calls for the categorization of individual pests 
to determine whether the criteria for a quarantine pest are satisfied ; the assessment of the 
probability of introduction (entry and establishment) and spread of the pest ; and the assessment of 
its economic con sequences .442 The ISPM also includes in this stage the issue of the degree of 
uncertainty.443 
2.148.   According to ISPM No. 11, Stage 3 (pest risk management) involves identifying management 
options for reducing the risks identified at Stage 2, and evaluating these options for efficacy, 
feasibility and impact , in order to select those that are appropriate .444 ISPM No. 11 also covers, as 
part of this stage, level of risk, technical information required, acceptability of risk, identification and 
selection of appropriate  risk management options, and phytosanitary certificates and other 
compliance measures.445 
2.149.   Lastly, ISPM No. 11 addresses PRA documentation requirements.446 
2.2.2.8   ISPM No. 32: Categorization of commodities according to their pest risk447 
2.150.   ISPM No. 32 was adopted in April 2009.448 
2.151.   With regard to its scope, this standard provides criteria for NPPOs of importing countries on 
how to categorize commodities according to their pest risk when considering import requirements .449 
According to this standard, "[t]he objective of such categorization is to provide importing countries 
with criteria to better identify the need for a pathway -initiated […] PRA and to facilitate the 
decision -making process regarding the possible establishment of import requirements".450 
2.152.   ISPM No. 32 states  that "[t]he concept of categorization of commodities according to their 
pest risk takes into account whether the product has been processed, and if so, the method and 
 
436 ISPM No.  11, (Exhibit MEX -77). 
437 ISPM No.  11, (Exhibit MEX -77), p. 5.  
438 ISPM No.  11, (Exhibit MEX -77), p. 5.  
439 ISPM No.  11, (Exhibit MEX -77), p. 6.  
440 ISPM No.  11, (Exhibit MEX -77), p. 6.  
441 ISPM No.  11, (Exhibit MEX -77), pp. 6 -10. 
442 ISPM No.  11, (Exhibit MEX -77), pp. 6 and 10 -22. 
443 ISPM No.  11, (Exhibit MEX -77), p. 22.  
444 ISPM No.  11, (Exhibit MEX -77), p. 6.  
445 ISPM No.  11, (Exhibit MEX -77), pp. 22 -27. 
446 ISPM No.  11, (Exhibit MEX -77), p. 27.  
447 Secretaría de la CIPF, Categorización de productos según su riesgo de plagas , NIMF No.  32 (Roma, 
FAO en nombre de la Secretaría de la CIPF, adoptada en 2009, publicada en 2016) (ISPM No.  32), 
(Exhibit  MEX-78). 
448 ISPM No.  32, (Exhibit MEX -78), p. 4.  
449 ISPM No.  32, (Exhibit MEX -78), p. 4.  
450 ISPM No.  32, (Exhibit MEX -78), p. 4.  WT/DS524/R  
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  degree of processing to which it has been subjected and the commodity 's intended use and the 
consequent potential for the introduction and spread of regulated pests".451 
2.153.   ISPM No. 32 identifies four categories that group commodities according to their level of pest 
risk (two for processed commodities, two for unprocessed commoditie s), and provides lists of the 
methods of processing and the associated resultant commodities.452 
2.3  Other factual aspects  
2.154.   The product at issue, avocado, is described below , as is the pathogen that is a source of 
concern for Costa  Rica, ASBVd.  
2.3.1   The a vocado  
2.3.1.1   Gener al characteristics  
2.155.   Avocado ( Persea americana Mill.) is a tropical tree native to Mesoamerica453, in particular 
the central and eastern highlands of Mexico and upland areas of Guatemala .454 This tree spread to 
the south -eastern United  States , the West Indies,  all of Central America and much of 
South  America455, and is now distributed worldwide .456 The avocado tree produces the edible tropical 
fruit of the same name.457 
2.156.   The avocado belongs to the plant family  Lauraceae458, which contains just over 50 genera, 
including Persea , and approximately 2,200 species, mostly tropical and subtropical ones .459 The 
genus Persea  consists of two subgenera, one of which is also called Persea , and which contains just 
a few species, including  Persea  americana , which is commercial avocado .460 It is now generally 
accepted that avocado may be designated under a single species : Persea americana Mill.461 
2.157.   Three subspecies or botanical varieties of Persea americana  are widely recognized globally : 
(i) Persea americana ssp drymifolia , known in horticultural circles as the Mexican ecological or 
horticultural race ; (ii) Persea americana ssp guatemalensi s, known as the Guatemalan race ; and 
(iii) Persea americana ssp americana , known as the West Indian race .462 The inherent genetic 
make -up of the avocado led to the development of these three races, which evolved under different 
edapho climat ic conditions .463 The Mexican and Guatemalan races originated and were domesticated 
in the highlands of Mexico and Guatemala, respectively, and the West Indian race most likely 
originated on the Central American Pacific coast, running from Guatemala to Costa  Rica.464 
 
451 ISPM No.  32, (Exhibit MEX -78), p. 4.  
452 ISPM No.  32, (Exhibit MEX -78), p. 4.  
453 Galindo Tovar et al. (2008), (Exhibit MEX -22), p. 441.  
454 Asociación de Productores y Empacadores Exportadores de Aguacate de México (APEAM), 
Guía Técnica , (Exhibit MEX -19), p. 1. 
455 J. Sánchez Pérez, "Recursos Genéticos de Aguacate ( Persea Americana  Mill.) y especies afines en 
México", Revista chapingo  (Serie Horticultura), Vol. 5, Número Especial (1999), pp. 7 -18 (Sánchez  Pérez  
(1999)), (Exhibit MEX -26), p. 8.  
456 Galindo Tovar et al. (2008), (Exhibit MEX -22), p. 441.  
457 México, Secretaría de Economía, Subsecretaría de Fomentos a los Agronegocios (SFA), M onografía de 
cultivos (SFA, Crops  monograph (2011)), (Exhibit MEX -24), p. 1.  
458 Galindo Tovar et al. (2008), (Exhibit MEX -22), p. 442; SFA, Farming monograph (2011), 
(Exhibit  MEX-24), p. 1; and J.A. Bernal Estrada y C.A. Díaz Diez (eds.), Tecnología para el  Cultivo del Aguacate  
(CORPOICA Centro de Investigación La Selva, Rionegro, Antioquia, Colombia , 2008) (Bernal Estrada and 
Díaz Diez (2008)) , (Exhibit MEX -181), p. 15.  
459 Sánchez Pérez (1999), (Exhibit MEX -26), p. 7.  
460 Sánchez Pérez (1999), (Exhibit MEX -26), p. 8.  
461 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 17. 
462 Galindo Tovar et al. (2008), (Exhibit MEX -22), p. 443; Sánchez Pérez (1999), (Exhibit MEX -26), p. 9; 
and J.M. Cambrón Crisantos, "Similitud gen ética del viroide de la mancha de sol del aguacate en Michoacán, 
México", tesis doctoral, Colegio de Postgraduados (COLPOS) Institución de Enseñanza e Investigación en 
Ciencias Agrícolas (2011) (Cambrón Crisantos (2011)), (Exhibit CRI -10), p. 5.  
463 Bernal E strada and Díaz Diez (2008), (Exhibit MEX -181), p. 23. 
464 Sánchez Pérez (1999), (Exhibit MEX -26), p. 9.  WT/DS524/R  
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  2.158.   Avocado is a species with great genetic variability due to open pollination .465 Over thousand s 
of years a considerable genetic diversity has evolved in the area where avocados originated, and 
there are now tens of  thousand s of wild trees grown from seeds un der a wide variety of ecological 
conditions.466 
2.3.1.2   Avocado farming  
2.159.   Avocado is a relatively new crop, which gained importance from the beginning of the 
20th century .467 The most internationally traded avocado races are the Guatemalan and Mexican, 
specifically th e Hass, Fuerte and Nabal varieties .468 The Hass cultivar, a mix of different avocado 
varieties developed by Rudolph Hass, is considered the most popular variety internationally469 
because of its sustained yield, its less pronounced alternate bearing cycle, i ts ability to withstand 
transportation, its shelf -life, and the excellent quality of its flesh .470 In addition, the compact growth 
of the tree allows high density planting and facilitates cropping activities.471 
2.160.   Mexico is currently the world's leading produc er of avocado fruit .472 According to FAO data, 
Mexico produced 2,184,663 tonnes of avocado in 2018  and 2,300,889 tonnes in 2019 , equivalent to 
more than 30% of global production for both years . According to the same data, Costa  Rica produced 
15,000 tonnes  of avocado  in 2018  and 16,746 tonnes in 2019 .473 
2.3.1.2.1   Edapho climat ic conditions  
2.161.   Avocado trees can be cultivated  all year round474 and adapt to a wide range of soils, from 
sandy to clay, provided there is good internal drainage, a vitally important factor475 given that they 
do not tolerate flooding or soil that is too wet, even for a short time .476 Avocado trees grow best in 
deep, well -drained soils of light texture with a pH that is neutral or slightly acidic, although they can 
grow in clay soil or clay loam with good drainage.477 
2.162.   Avocados can be grown at altitudes from sea level up to 2,500 -3,000 masl .478 The three 
races have adapted to  different altitudes : (i) the Mexican race has adapted to elevations above 
2,000  masl, which is the cold thermal floor ; (ii) the Guatemalan race has adapted to altitudes 
ranging from 800 masl to 2,400 masl, putting it between the moderately cold and temper ate thermal 
 
465 Sánchez Pérez (1999), (Exhibit MEX -26), p. 9.  
466 Sánchez Pérez (1999), (Exhibit MEX -26), p. 9.  
467 B.N. Wolstenholme, "Ecology: Climate and Soils", en B. Schaffer, B.N. Wolstenholme and A.W. 
Whiley (eds.), The Avocado: Botany, Production and Uses , 2.a ed. (CABI, 2013) (Wolstenholme (2013)), 
(Exhibit CRI -51), p. 86; and A. Ben -Ya'acov and E. Michelson, "Avocado rootstocks", Horticultural Reviews , 
Vol. 17, (1995) (Ben -Ya'acov and Michelson (1995)), (Exhibit CRI -65), p. 4.  
468 México, Secretaría de Economía, Dirección General de Industrias Básicas (DGIB), Monogra fía del 
sector aguacate en México: Situación Actual y Oportunidades de Mercado (2012) (DGIB, Monograph of 
Mexico's avocado sector (2012)), (Exhibit MEX -23), p. 4.  
469 SFA, Crops  monograph (2011), (Exhibit MEX -24), p. 2.  
470 J.L. Morales García, M.R. Mendoza Ló pez, V.M. Coria Avalos, J.L. Aguirre Montañez, J. de la Luz 
Sánchez Pérez, J.A. Vidales Fernández, L.M. Tapia Vargas, G. Hernández Ruíz y J.J. Alcántar Rocillo , 
"Tecnología -Produce Aguacate en Michoacán", Vol. 1 (2013) (Morales García et al. (2013)), (Exhibit MEX -27), 
p. 3. 
471 Morales García et al. (2013), (Exhibit MEX -27), p. 3.  
472 Galindo Tovar et al. (2008), (Exhibit MEX -22), p. 441.  
473 See FAOSTAT, available at: http://www.fao.org/faostat/en/#data/QC  (accessed 30  November  2021).  
474 SFA, Crops  monograph (2011), (Exhibit MEX -24), p. 1.  
475 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 46. 
476 C. Landa, "Recomendaciones para cultivar aguacate Hass", La Tribun a (16 de diciembre de 2017) 
("Recomendaciones para cultivar aguacate Hass", La Tribuna  (2017)), (Exhibit CRI -56), p. 2.  
477 DGIB, Monograph of Mexico's avocado sector (2012), (Exhibit MEX -23), p. 4; SFA, Crops  monograph 
(2011), (Exhibit MEX -24), p. 1. See al so "Recomendaciones para cultivar aguacate Hass", La Tribuna  (2017), 
(Exhibit  CRI-56), p. 2; and "Suelo y clima para el cultivo de aguacate en México" plantahass.com  (6 de febrero 
de 2017) ("Suelo y clima para el cultivo de aguacate en México", plantahass. com (2017)), (Exhibit  CRI-57). 
478 DGIB, Monograph of Mexico's avocado sector (2012), (Exhibit MEX -23), p. 4; and 
Sánchez  Pérez  (1999), (Exhibit MEX -26), p. 9.  WT/DS524/R  
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  floors ; and (iii)  the West Indian race has adapted to elevations between sea level and 800  masl, 
which is the warm thermal floor.479 
2.163.   According to s ome scientists , avocado tree s grow at minimum temperatures of  between  10°C 
and 17°C and maximum te mperature of between 28°C and 33°C .480 Of the three races : (i) the 
Mexican race has adapted to very cold climates, tolerating temperatures as low as 2.2°C, with 
optimal temperatures ranging between 5°C and 17°C ; (ii) the Guatemalan race has adapted to 
subtropical conditions, with optimal temperatures between 4°C and 19°C ; and (iii)  the West  Indian 
race has adapted to temperatures between 18°C and 26°C.481 
2.164.   With regard to precipitation, avocados require between 1,000  mm and 1,800 -2,000  mm of 
rain.482 The avocado tree has adapted to humid and semi -humid climates, with marked differences 
between rainy and dry seasons .483 In turn, the avocado tree is very sensitive to waterlogging, which 
leads to root asphyxiation.484 
2.3.1.2.2   Recalcitrant nature of avocado seeds  
2.165.   Avocad o is one of the large -seeded, woody perennial plants that has recalcitrant seeds.485 
2.166.   Recalcitrant seeds are sensitive to desiccation486 and chilling injury .487 These seeds lose their 
ability to germinate when exposed to low humidity.488 
2.3.1.2.3   Propagation methods of avocado  
2.167.   Avocados can propagate : (i) sexually ( by seeds); and (ii)  vegetatively  (by means of cutting, 
grafting and in vitro propagation) .489 
2.168.   Seed propagation is not recommended for commercial farms because of the great variability 
that occurs in the crop .490 Vegetative propagation is the most suitable method for avocado, as it 
allows the original characteristics of the commercial varieties or cultivars to be preserved.491 
2.169.   The most recommended and widely used propagation method around the world for the 
productio n and marketing of avocado fruit is vegetative propagation by grafting .492 Grafting consists 
 
479 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 45; A. Pérez Santiago, "Generalidades 
del cultivo de aguacate ( Persea americana )" (2008) (Pérez Santiago (2008)), (Exhibit MEX -21), pp. 11 -12; and 
"El cultivo de palta o aguacate", Agrotendencia.tv  (2018), (Exhibit CRI -2), p. 15.  
480 Morales García et al. (2013), (Exhibit MEX -27), p. 2; and E. Campos Rojas, J. Ayala Arreola, 
J. Andrés  Agustín y M. de la Cruz Espíndola Barquera, "Propagación de Aguacate", SAGARPA -SINAREFI -UACh. 
México  (2012) (Campos Rojas et al. (2012)), (Exhibits MEX -31 and CRI -4), p. 9.  
481 Bernal Estrada and Díaz D iez (2008), (Exhibit MEX -181), p. 45. See also Pérez Santiago (2008), 
(Exhibit  MEX-21), pp. 11 -12. 
482 Morales García et al. (2013), (Exhibit MEX -27), p. 2; SFA, Crops  monograph (2011), 
(Exhibit  MEX-24), p. 1; and Campos Rojas et al. (2012), (Exhibits MEX -31 and CRI -4), p. 9.  
483 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 45. 
484 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 46. 
485 R.H. Ellis, "The longevity of seeds", Horticultural Science , Vol. 26, No.  9 (1991), pp. 11 19-1125 
(Ellis (1991)), (Exhibit MEX -35), p. 1119.  
486 Ellis (1991), (Exhibit MEX -35), pp. 1119 and 1121; and H.F. Chin, B. Krishnapillay and P.C. 
Stanwood, "Seed Moisture: Recalcitrant vs. Orthodox Seeds", en P.C. Stanwood and M.B. McDonald (eds.), 
Seed moi sture (Crop Science Society of America, Madison, Wisconsin, 1989) pp. 15 -22 (Chin et al. (1989)), 
(Exhibit MEX -130), p. 18.  
487 Chin et al. (1989), (Exhibit MEX -130), p. 18. See also I.M. Ferrufino Vega, "Efecto de la 
deshidratación sobre la germinación del litchi ( Litchi chinensis Sonn. )" (1999) (Ferrufino Vega (1999)), (Exhibit 
MEX-36), p. 5.  
488 S.V. Magnitskiy y G.A. Plaza, "Fisiología de semillas recalcitrantes de árboles tropicales", Agronomía 
Colombiana , Vol. 25, No.  1 (2007) pp. 96 -103 (Magnitskiy y Plaza (2007)), (Exhibit MEX -38), p. 96.  
489 Pérez Santiago (2008), (Exhibit MEX -21), p. 23; Bernal Estrada and Díaz Diez (2008), 
(Exhibit  MEX-181), p. 48; and "El cultivo de palta o aguacate", Agrotendencia.tv  (2018), (Exhibit CRI -2), p. 17.  
490 Pérez Santiago (2008), (Exhibit MEX -21), p. 23; and Bernal Estrada and Díaz Diez (2008), 
(Exhib it MEX-181), p. 48.  
491 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 50. 
492 Pérez Santiago (2008), (Exhibit MEX -21), p. 23; Bernal Estrada and Díaz Diez (2008), (Exhibit 
MEX-181), p. 49; "El cultivo de palta o aguacate", Agrotendencia.tv  (2018),  (Exhibit CRI -2), p. 17; and 
Instituto para la Innovación Tecnológica en Agricultura (INTAGRI), Injerto en Aguacate, Artículos Técnicos de WT/DS524/R  
- 80 - 
  of joining two parts from different plants, known as the rootstock or stock and the scion, in such a 
manner that they grow and develop as a single plant .493 This propagation method involves grafting 
the scion of a variety with desirable commercial characteristics onto a rootstock of a variety that has 
desirable agronomic characteristics, such as disease resistance or vigour .494 Two of the grafting 
methods used are : (i) seedling rootstock ; and (ii)  clonal rootstock.495 
2.170.   The first grafting method , i.e. seedling rootstock,  uses selected seed -propagated 
rootstocks .496 These rootstocks are also known as natural rootstocks .497 The commercial propagation 
of avocado cultivars is  generally carried out through grafting on natural rootstocks, grown from 
seeds .498 This type of rootstock is highly heterozygous which reflects the non -uniform behaviour of 
grafted plants.499 
2.171.   The second grafting method, i.e. clonal rootstock propagation, is  the practice that offers the 
greatest uniformity500, and its behaviour in field conditions is very homogeneous .501 Some consider 
the clonal propagation of rootstock to be the trend of the future .502 However, clonal rootstocks are 
more expensive to buy.503 
2.172.   Grafting can be done in the nursery or at the final planting site, but it is recommended to do 
it in the nursery .504 The nursery is the place where the selected plants to be grafted are kept, before 
being taken to the field.505 
2.3.2   Avocado sunblotch viroid (ASBV d) 
2.3.2.1   Description of the basic characteristics of ASBVd  
2.173.   Viroids are the smallest known subcellular pathogens and are composed of a circular 
single -stranded RNA molecule, of between 246 and 434 nucleotides and a compact secondary 
structure .506 Viroids might have appeared very early in evolution and could represent the world that 
presumably preceded our current world based on deoxyribonucleic acid (DNA) and proteins .507 
Viroids do not encode proteins and replicate autonomously when inoculated into their h ost plants .508 
 
INTAGRI , Serie Frutales, No.  44 (2018) (INTAGRI, Grafting Avocado (2018)), (Exhibit CRI -3), p. 3. See also 
responses of Pablo Cortese, Ricardo Flores Pedauyé and Fernando Pliego Alfaro  to Panel question No.  1 for the 
experts.  
493 INTAGRI, Grafting Avocado (2018), (Exhibit CRI -3), p. 3.  
494 See Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), pp. 50 -51; and "El cultivo de palta o 
aguacate", Agrotendencia.tv  (2018), (Exhibit CRI -2), p. 17. See also Pablo Cortese's response to Panel 
question No.  1 for the experts.  
495 Ben-Ya'acov and Michelson (1995), (Exhibit CRI -65), p. 6. See also Fernando Pli ego Alfaro's 
response to Panel question No.  1 for the experts.  
496 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), pp. 48 and 50.  
497 See INTAGRI, Grafting Avocado (2018), (Exhibit CRI -3), p. 4.  
498 Campos Rojas et al. (2012), (Exhibits MEX -31 and CRI-4), p. 8; and INTAGRI, Grafting Avocado 
(2018), (Exhibit CRI -3), p. 4.  
499 Campos Rojas et al. (2012), (Exhibits MEX -31 and CRI -4), p. 21. See also Ben -Ya'acov and 
Michelson (1995), (Exhibit CRI -65), p. 23. 
500 Campos Rojas et al. (2012), (Exhibits MEX -31 and CRI -4), pp. 21 and 25; and Ben -Ya'acov and 
Michelson (1995), (Exhibit CRI -65), pp. 26 -27 and 30. See also Bernal Estrada and Díaz Diez (2008), 
(Exhibit  MEX-181), p. 50.  
501 INTAGRI, Grafting Avocado (2018), (Exhibit CRI -3), p. 4.  
502 Campos Rojas et al. (2012), (Exhibits MEX -31 and CRI -4), p. 21; A.A. Ernst, A.W. Whiley and 
G.S. Bender, "Propagation", en B. Schaffer, B.N. Wolstenholme and A.W. Whiley (eds.), The Avocado: Botany, 
Production and Uses , 2.ª ed. (CAB International, 2013), pp. 234 -267 (Ernst  et al. (2013)), (Exhibit MEX -254); 
and Ben -Ya'acov and Michelson (1995), (Exhibit CRI -65), p. 23.  
503 INTAGRI, Grafting Avocado (2018), (Exhibit CRI -3), p. 4. See also Fernando Pliego Alfaro's response 
to Panel question No.  1 for the experts.  
504 Pérez Santiago ( 2008), (Exhibit MEX -21), p. 25.  
505 Bernal Estrada and Díaz Diez (2008), (Exhibit MEX -181), p. 58. 
506 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 4.  
507 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 4.  
508 G.N. Agrios, "Enfermedades de las plantas  causadas por virus" en Fitopatología  (Editorial Limusa 
S.A., 1995), pp. 726 -733 (Agrios (1995)), (Exhibit MEX -57), p. 726; H. Beltrán Peña, "El viroide de la mancha 
de sol del aguacate en Michoacán: Detección y manejo", tesis doctoral, Colegio de Postgraduados (COLPOS) 
Institución de Enseñanza e Investigación en Ciencias Agrícolas, marzo de 2013 (Beltrán Peña (2013)) , 
(Exhibit  MEX-63), p. 5; and Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 4.  WT/DS524/R  
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  Viroids are pathogenic biological agents exclusive to the plant kingdom  and are grouped into two 
families, one of which , Avsunviroidae509, is the one to which Avocado sunblotch viroid  (ASBVd) 
belongs.510 
2.174.   ASBVd is a species of viroid composed of  a circular single -stranded RNA molecule of 247 
nucleotides511 that replicates in the chloroplast .512 ASBVd is the causal agent of sunblotch disease.513 
2.175.   The first reports of the existence of ASBVd date back to early 1914, when Carter Barrett 
reported observin g symptoms of sunblotch disease that same year in Altadena, California , 
United  States .514 University of California professor, J . Eliot Coit documented sunblotch disease for 
the first time in 1928 in an article, in which he described it as a physiological di sease and named it 
"sun-blotch" because he thought the symptoms were a direct result of sunburn .515 The first studies 
of the disease's causal agent were carried out in 1928, following the publication of Professor Coit's 
article .516 In 1931,  W.T. Horne and E.R. Parker described the pathology as a disease transmitted 
through grafts .517 Later, J.M. Wallace and R.J. Drake studied the seed transmission of the disease .518 
During the period 1970 -1980, laboratory evidence suggested and then confirmed that the causal 
agent of sunblotch is a viroid.519 
2.176.   With regard to its current geographical distribution, ASBVd is present in America, Europe, 
Asia, Africa and Oceania.520 
2.177.   In terms of its hosts, ASBVd affects only the avocado tree and fruit and no other genera of 
trees or fruit521, although it has been confirmed experimentally that other species of the family 
 
509 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 4.  
510 A.D.W. Geering, "A review of the status of Avocado sunblotch viroid  in Australia", Australasian Plant 
Patholog y, Vol. 47, No.  6 (2018), pp. 555 –559 (Geering (2018)), (Exhibit MEX -43), p. 555; and Cambrón 
Crisantos (2011), (Exhibit CRI -10), p. 9.  
511 Saucedo Carabez et al. (2014), (Exhibit MEX -45), p. 800; Semancik and Szychowski (1994), 
(Exhibit  MEX-52), pp. 1543 -1549; Servicio Nacional de Sanidad, Inocuidad y Calidad Agroalimentaria 
(SENASICA), Ficha Técnica -Avocado sunblotch viroid (SENASICA, Datasheet), (Exhibit MEX -59), p. 6; D. 
Ncango, Z. Dlamini and N.  Zulu, "An overview of avocado sunblotch viroid disease in S outh Africa  from 2008 to 
2013", South  Africa n Avocado Growers ' Association Yearbook , Vol. 37 (2014) (Ncango et al. (2014)),  
(Exhibit CRI -8), p. 69; and Cambrón Crisantos (2011), (Exhibit CRI -10), p. 27.  
512 Saucedo Carabez et al. (2014), (Exhibit MEX-45), p. 801.  
513 Beltrán Peña (2013), (Exhibit MEX -63), p. 7; and P. Palukaitis, A.G. Rakowski, D.McE. Alexander and 
R.H. Symons, "Rapid indexing of the sunblotch disease of avocados using a complementary DNA probe to 
avocado sunblotch viroid", Annals of  Applied Biology , Vol. 98 (1981), pp. 439 -449 (Palukaitis et al. (1981)), 
(Exhibit MEX -193), p. 440. See also Pablo Cortese's response to Panel question No.  29 for the experts; 
Mexico's comments on the experts' responses to Panel question No.  29 for the ex perts; and Costa Rica's 
comments on the experts' responses to Panel questions Nos. 29 and 30 for the experts.  
514 Whitsell (1952), (Exhibit MEX -42). 
515 Coit (1928), (Exhibit CRI -9), p. 4. See also Whitsell (1952), (Exhibit MEX -42); and Ncango et al. 
(2014), (Exhibit  CRI-8), p. 69.  
516 Horne and Parker (1931), (Exhibit CRI -123). See also Whitsell (1952), (Exhibit MEX -42); and 
Ncango  et al. (2014), (Exhibit CRI -8), p. 69.  
517 Saucedo Carabez, et al. (2014), (Exhibit MEX -45), p. 800.  
518 J.M. Wallace and R.J. Drake, "A high rate of seed transmission of avocado sun -blotch virus from 
symptomless trees and the origin of such trees", Phytopathology , Vol. 52 (1962), pp. 237 -241 (Wallace and 
Drake (1962)), (Exhibit MEX -285). 
519 Palukaitis et al. (1981), (Exhibit MEX -193), pp. 439 -440; Desjardins (1987), (Exhibit CRI -101), p. 
299; Dale and Allen (1979), (Exhibit CRI -115); Mohamed and Thomas (1980), (Exhibit CRI -125), p. 157; and 
P. Palukaitis, T. Hatta, D.McE. Alexander and R.H. Symons, "Characteri zation of a viroid associated with 
Avocado sunblotch disease", Virology , Vol. 99 (1979), pp. 145 -151 (Palukaitis et al. (1979)),  
(Exhibit CRI -129), p. 145.  
520 Saucedo Carabez et al. (2014), (Exhibit MEX -45), p. 800; Saucedo Carabez et al. (2019),  
(Exhibit MEX -175), p. 6; and Organización Europea y Mediterránea de Protección de las Plantas ( EPPO) Global 
Database, Avocado sunblotch viroid (ASBVD0) World distribution (2019) (EPPO Global Database, World 
distrib ution (2019)), (Exhibit MEX -48). 
521 Geering (2018), (Exhibit MEX -43), p. 3. See also the responses  of Pablo Cortese, Ricardo Flores 
Pedauyé and Fernando Pliego Alfaro  to Panel  question No.  74(a) for the experts.  WT/DS524/R  
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  Lauraceae  may act as hosts .522 ASBVd is systemic in all the plant's tissues .523 However, ASBVd can 
be irregularly distributed in the host's tissues524 and its concentratio n can vary between branches.525 
2.178.   ASBVd affects all avocado cultivars, in other words, all varieties of avocados are susceptible 
to ASBVd and there are no resistant varieties .526 However, different varieties might have a different 
response against the disease527, or, in other words,  the severity of symptom onset may be affected 
by the cultivar.528 
2.3.2.2   Symptoms of ASBVd  
2.179.   The alterations caused by ASBVd vary according to and are influenced by the cultivar, 
environmental conditions and the variants of the viroid.529 
2.180.   Small  changes in the nucleotide sequence of the viroid can affect symptom expression .530 
There are at least three variants of ASBVd, categorized according to the symptoms they produce : 
ASBVd -B (which produces bleaching) ; ASBVd -V (which produces variegation) ; and ASBVd -Sc (which 
does not produce visible symptoms).531 
2.181.   Affected trees present the following visible symptoms:  
a. On the branches and stems : narrow white, yellow or pink streaks, on the surface or slightly 
depressed, appear on green twigs and young stems.532 
b. On the leaves : bleached or chlorotic areas may form initially around the leaf veins and this 
may progress to complete chlorosis or bleaching , with leaves becoming deformed .533 
Distorted and variegated areas may also develop from the central vein , which may 
progress and deform the entire leaf blade.534 
c. On the fruit : lesions and discolouration of the fruit, sunken white, yellow or pink blotches 
or streaks .535 The fruit are usually small and deformed.536 
 
522 J.S. Semancik, "Avocado sunblotch viroid", en A. Hadidi, R. Flores, J.W. Randles and 
J.S. Semancik  (eds.),  Viroids  (CSIRO Publishing: Melbourne, Australia, 2003), pp. 171 –177 (Semancik (2003)), 
(Exhibit  MEX-46), p. 172; R.P. Singh, K.F.M. Ready and X. Nie, "Biology", en A. Hadidi, R. Flores, J.W. R andles 
and J.S. Semancik (eds.),  Viroids  (CSIRO Publishing: Melbourne, Australia, 2003), pp. 30 -48 (Singh et al. 
(2003)), (Exhibit MEX -50), pp. 30-31; Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 5 ; Desjardins 
(1987), (Exhibit  CRI-101), p. 300; and Hadidi et al. (2003), (Exhibit CRI -121), p. 172.  
523 Ploetz et al. (2011), (Exhibit MEX -56), p. 6.See the responses of Pablo Cortese, Ricardo Flores 
Pedauyé and Fernando Pliego Alfaro  to Panel question No.  34(d) for the experts.  
524 Semancik and Szychowski (1994), (Exhibit MEX -52), p. 1548.  
525 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; and Luttig and Manicom (1999), (Exhibit MEX -69), p. 7.  
526 Saucedo Carabez et al. (2014), (Exhibit MEX -45), p. 3; and Laboratorio Nacional de 
Geoprocesamiento de Información Fitosanitaria (LaNGIF), "Análisis Epidemiológico de la mancha de sol de 
aguacate – Avocado Sun Blotch Viroid (ASBVd)" (LaNGIF, ASBVd Epidemiological Analysis  (2009)),  
(Exhibit MEX -54), p. 85. See  also response s of Ricardo F lores Pedauyé  and Pablo Cortese to Panel question 
No. 25(c) for the experts.  
527 Saucedo Carabez et al. (2019), (Exhibit MEX -175), pp. 5 and 8. See also Pablo Cortese's response to 
Panel question No.  25(c) for the experts.  
528 Fernando Pliego Alfaro's response to Panel question No.  25(c) for the experts.  
529 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 3; 
and Ncango et al. (2014), (Exhibit CRI -8), p. 69.  
530 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; and Ncango et al. (2014), (Exhibit CRI -8), p. 69.  
531 Semancik and Szychowski (1994), (Exhibit MEX -52), p. 1543; and Ncango et al. (2014), 
(Exhibit  CRI-8), p. 69.  
532 Ploetz et al. (2011), (Exhibit MEX -56), p. 6.  
533 Ploetz et al. (2011), (Exhibit MEX -56), p. 6. See also Saucedo Carabez et al. (2014),  
(Exhibit MEX -45), p. 801.  
534 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 3.  
535 Ploetz et al. (2011), (Exhibit MEX -56), p. 6. See also Desjardins (1987), (Exhibit CRI -101), p. 302.  
536 Ploetz et al. (2011), (Exhibit MEX -56), p. 6.  WT/DS524/R  
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  d. On the bark on the trunk of larger branches : rectangular crack ed or checked appearance, 
also known as "alligator skin" or "crocodile skin".537538, 
2.182.   Severely affected trees are often underdeveloped, sparsely foliated and stunted.539 
2.183.   As secondary symptoms in older parts of the trees, it is reported that tissue surfaces dry, 
crack and darken sooner than the surfaces of normal trees.540 
2.184.   With regard to the appearance of visible symptoms, the climate influences symptom 
expression, with fewer symptoms at lower temperatures .541 Viroids are warm climate pathogens, as 
warm temperatures trigger their symptoms . ASBVd likes temperatures ranging between 18°C and 
32°C.542 
2.3.2.3   Transmission of ASBVd  
2.185.   ASBVd can be transmitted through : (i) vegetative propagation (grafting) ; (ii) seeds ; 
(iii) pollen ; (iv) natural root gra fting; (v) mechanical transmission from using contaminated tools .543 
There are no known insect vectors of ASBVd.544 
2.3.2.4   Methods for the detection and diagnosis of ASBVd  
2.186.   A practical method of diagnosing ASBVd is by identifying typical symptoms in fruits . 
Moreover , when there is a marked reduction in the yield of a seemingly normal tree, it could be 
caused by the symptomless strain of ASBVd .545 However, diagnosis based on symptoms is not 
reliable, so other sensitive diagnostic techniques are necessary to determine t he health status of the 
tree.546 
2.187.   There are different molecular detection techniques, based on detecting th e genome  of 
ASBVd547, and satellite detection of ASBVd:  
a. The hybridization technique, including the dot -blot procedure, whereby sap extract is 
hybridized  by applying a nucleic acid solution to a solid support, such as nitrocellulose or 
nylon membranes, and viroid RNA is detected and quantified548; 
 
537 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 3; 
and S. Ochoa Ascencio, "Enfermedades nuevas, emergentes y amenazantes", IV Congreso Latinoamericano del 
Aguacate , San José, Costa Rica, 23 -25 de julio 2013 (Ochoa Ascencio (2013)), (Exhibit CRI -11), p. 59.  
538 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; LaNGIF, ASBVd Epidemiological Analysis  (2009),  
(Exhibit MEX -54), pp. 82 -84; Saucedo Carabez et al. (2014), (Exhibit MEX-45), p. 801; and Desjardins (1987), 
(Exhibit CRI -101), pp. 300 -302. See also the experts' responses to Panel question No.  30 for the experts.  
539 Ploetz et al. (2011), (Exhibit MEX -56), p. 6. See also Pablo Cortese's response to Panel question 
No. 30 for the experts.  
540 LaNGIF, ASBVd Epidemiological Analysis  (2009), (Exhibit MEX -54), p. 84. 
541 Campos et al. (2011), (Exhibit MEX -51), p. 2.  
542 Campos et al. (2011), (Exhibit MEX -51), p. 2. See also responses of Pablo Cortese, Ricardo Flores 
Pedauyé and Fernando Pliego Alfaro  to Panel question No.  36 for the experts.  
543 Ploetz et al. (2011), (Exhibit MEX -56), p. 6; Beltrán Peña (2013), (Exhibit MEX -63), p. 9; SENASICA, 
Datasheet, (Exhibit MEX -59), p. 8; Schnell et al. (1997), (Exhibit MEX -68), p. 1023; and  Desjardins (1987), 
(Exhibit CRI -101), pp. 304 -305. See also responses  of Pablo Cortese, Ricardo Flores Pedauyé and Fernando 
Pliego Alfaro  to Panel question No.  26 for the experts.  
544 Beltrán Peña (2013), (Exhibit MEX -63), p. 9; Ploetz et al. (2011 ), (Exhibit MEX -56), p. 6; 
Schnell  et al. (1997), (Exhibit MEX -68), p. 1023; and Ncango et al. (2014), (Exhibit CRI -8), p. 69.  
545 Semancik (2003), (Exhibit MEX -46), p. 173; and LaNGIF, ASBVd Epidemiological Analysis  (2009), 
(Exhibit  MEX-54), p. 84. See also Sau cedo Carabez et al. (2019), (Exhibit MEX -175), p. 8.  
546 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 8.  
547 H-P. Mühlbach, U. Weber, G. Gómez, V. Pallás, N. Duran -Vila and A. Hadidi, "Molecular 
Hybridization", en A. Hadidi, R. Flores, J.W. Randles and J.S. Semancik (eds.),  Viroids  (CSIRO Publishing: 
Melbourne, Australia, 2003), pp. 103 -114 (Mühlbach et al. (2003)), (Exhibit MEX -66), p. 103. 
548 Mühlbach et al. (2003), (Exhibit MEX -66), p. 107.  WT/DS524/R  
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  b. Polyacrylamide gel electrophoresis (PAGE), whereby infected avocado tissue is extracted, 
and the viroid is dete cted by applying the polyacrylamide gel indexing method549; 
c. The methods amplify the signal to levels detectable through a reverse transcriptase – 
polymerase chain reaction (RT-PCR) assay, which consists of reverse transcription and 
DNA amplification of the viroid550; 
d. The satellite technique, whereby the spectral reflectance of satellite images is used to 
differentiate between infected avocado trees  and healthy trees.551 
2.188.   All three ASBVd variants can be detected using molecular laboratory techniques .552 Of the 
diagnostic methods, molecular hybridization and polymerase chain reaction (PCR) techniques have 
generated greatest interest in the field of plant virology diagnosis.553 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  Mexico requests that the Panel find t hat the measures described by Costa  Rica above are  
inconsistent with  Costa  Rica's obligations under  Articles 1.1, 2.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.3, 
5.5, 5.6  and 6.1 of the SPS  Agreement  and Articles III :4 and XI :1 of G ATT 1994. Mexico further 
request s, pursuant to Article  19.1 of the DSU, that the Panel recommend that Costa  Rica bring its 
measures into conformity with its WTO obligations.  
3.2.  Costa  Rica requests that the Panel reject Mexico's claims in this dispute in their entirety.  
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Proced ures adopted by the Panel (see Annexes B -1 
and B -2). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of Canada and the European  Union  are reflected in their executive summaries, 
provided in accordance with paragraph 26 of the Working Procedures adopted by the  Panel 
(see Annexes C -1 and C-2). 
6  INTERIM REVIEW  
6.1  Introduction  
6.1. On 30  November  2021, the Panel issued its Interim Report to the parties. On 
21 December  2021, Mexico and Costa Rica submitted their written requests for the review of certain 
aspects of the  Interim Report. On 14  January  2022, the parties submitted their comments on each 
other's requests for the review of certain aspects of the Interim Report.  
 
549 LaNGIF, ASBVd Epidemiological Analysis  (2009), (Exhibit MEX -54), p. 84; and J.G. Utermohlen, 
"A polyacrylamide gel electrophoresis index method for Avocado Sunblotch", Plant Disease , Vol. 65, 
No. 10 (1981), pp. 800 -802 (Utermohlen (1981)), (Exhibit MEX -67). 
550 Luttig and Manicom (1999), (Exhibit  MEX-69), pp. 56 and 60. See also Ricardo Flores Pedauyé's 
response to Panel question No.  55 for the experts.  
551 H. Beltrán Peña, J. Soria Ruiz, D. Téliz Ortiz, D.L. Ochoa Martínez, C. Nava Díaz y S. Ochoa Ascencio, 
"Detección satelital y molecular del viro ide de la mancha de sol del aguacate (Avocado Sunblotch Viroid, 
ASBVd)", Revista Fitotecnia Mexicana , Vol. 37, No.  1 (2014), pp. 21 -29 (Beltrán Peña et al. (2014)), 
(Exhibit  MEX-55); and Beltrán Peña (2013), (Exhibit MEX -63). 
552 Semancik and Szychowski (1994), (Exhibit MEX -52), p. 1546; and Semancik (2003),  
(Exhibit MEX -46), p. 174. See also Ricardo Flores Pedauyé's re sponse to Panel question No.  43(b) for the 
experts.  
553 Mühlbach et al. (2003), (Exhibit MEX -66), p. 103. See also Fernando Pliego Alfaro's response to 
Panel  question  No. 54 for the experts.  WT/DS524/R  
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  6.2. In accordance with Article  15.3 of the DSU, this section of the Report sets out the Panel's 
response to the parties' requests made at the interim review stage.  
6.3. The parties' requests for substantive modifications are discussed by the Panel below. In addition 
to the analysis of these requests, corrections were made for typographical and other non -substantive 
errors in the Report, including those identified by the parties. The numbering of some of the 
paragraphs and footnotes in the Final Report has changed from the numbering in the Interim Report. 
The analysis below refers to the numbering in the Interim Report if it has not changed, and, where 
it differs, reference is made to the corresponding numbering in the Final Report.  
6.2  Request for review concerning Costa Rica's comments on the inputs provided by the 
expert Ricardo Flores Pedauyé  
6.4. With regard to paragraph 1.93 and footnote 951, in which the Panel refers to Costa Rica's 
comment on the weight that should be given to the contributions of the expert Ricardo Flores 
Pedauyé, Costa Rica considers that its comment could be more accurately r eflected. Costa Rica 
requests that the language of this paragraph and of the footnote be supplemented with the parts of 
its comments that it considers are not reflected. Costa Rica also asserts that it made its comment in 
its email of 21  January  2021, not 19 January  2021.  
6.5. Mexico states that the Panel's reference to the date is correct; that it has no objection to the 
inclusion in paragraph 1.93 of the language proposed by Costa Rica, except for the term "explain"; 
and that it rejects the proposed edits  to footnote 951, as it considers the text thereof to be 
sufficiently clear. In Mexico's view, while the inputs of Mr Flores Pedauyé were not discussed during 
the hearings, they were the subject of various written exchanges with the Panel and the parties.  
6.6. The Panel observes that the Panel's reference to Costa Rica's email of 19  January  2021 in 
paragraph 1.93 is correct. The Panel notes that on 21  January  2021, Costa Rica reiterated its 
comment on the inputs provided by Ricardo Flores Pedauyé, and elabo rated thereon. In order to 
accommodate Costa Rica's request for review, the Panel has added a new paragraph 1.95 containing 
the remarks made by Costa Rica in its email of 21  January  2021.  
6.7. The Panel has accepted the addition requested by Costa Rica to footnote 951, taking into 
consideration its comments of 21  January  2021. As a result of these changes, the Panel has provided 
some clarification on its view regarding the inputs of Mr Flores Pedauyé.  
6.3  Requests for review concerning whether Mexico has d emonstrated that ASBVd is 
present in Costa Rica  
6.3.1   Section 7.3  
6.8. Mexico requests the Panel to conduct a review regarding section 7.3, in which the Panel 
concludes that Mexico has failed to demonstrate, as a matter of fact, that ASBVd is present in 
Costa  Rica. Mexico refers in particular to paragraph 7.279, and asserts that in matters of plant and 
animal health, it is the importing countries that bear the initial burden of determining pest status in 
an area of their territory, which is why  the burden of proof in respect of section 7.3 must be analysed 
in this context. Mexico states that the determination of pest status in an area cannot be imposed on 
exporting countries, as, in making such a determination, they would be encroaching upon the  
sovereignty of the importing country. According to Mexico, this assertion is supported by the remarks 
of the expert, Pablo Cortese, who pointed out that absence of evidence is not evidence of absence, 
meaning that the NPPO is required to seek information pertaining to the risk and the pest being 
prioritized. Mexico adds that it can only infer, but not assert or prove, that the viroid is present in 
Costa Rica. Mexico submits that the facts and arguments presented throughout this dispute 
nevertheless confirm  that the general surveillance activities with respect to ASBVd carried out by 
Costa Rica are not sufficient to enable Costa Rica to substantiate the determination of absence of 
ASBVd in its territory, and therefore it does not meet its burden of proof in demonstrating the 
absence of ASBVd in its territory.  
6.9. Costa Rica does not share Mexico's assessment, and states that Mexico has asserted that ASBVd 
is present in Costa Rica. According to Costa Rica, the burden of proving that assertion therefore lies 
with Mexico. Costa Rica states that nothing in the SPS  Agreement  imposes on importing countries WT/DS524/R  
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  the initial burden of demonstrating their phytosanitary status; and that accepting Mexico's premise 
would lead to the result that, in any dispute under the SPS  Agreement , the initial burden of proof 
would be shifted to the responding party, which, in Costa Rica's view, would be contrary to the 
burden of proof guidelines established by case law.  
6.10.  As explained by the Panel in section 7.1.3, the burden of proof rests upon the party asserting 
a fact. In its request for interim review, Mexico states  that it can only infer, but not assert or prove, 
that the viroid is present in Costa Rica. The Panel notes that Mexico asserted during the proceedings 
that there is evi dence from which it can be inferred that ASBVd is present in Costa Rica. However, 
throughout the dispute, Mexico equates this "inference" that ASBVd is present in Costa Rica with 
asserting or proving that ASBVd is present in Costa Rica, by basing some of i ts arguments on the 
premise that ASBVd is present in Costa Rica.554 The Panel cannot accept Mexico's arguments based 
on the premise that ASBVd is present in Costa Rica, if Mexico has failed to demonstrate, as a matter 
of fact, that ASBVd is present in Costa  Rica. 
6.11.  Accordingly, Mexico bears the burden of proving the fact that it asserts in the present dispute 
settlement proceedings. The Panel therefore does not consider it appropriate to review section 7.3 
in light of Mexico's assertion that in matters o f plant and animal health, it is the importing countries 
that bear the initial burden of determining pest status in an area of their territory.  
6.12.  In light of Mexico's request for review, the Panel has adjusted paragraph 7.279 to reflect the 
remarks mad e in the paragraph above. In paragraphs 7.280, 7.303 and 7.310, the Panel has 
emphasized that Mexico bears the burden of demonstrating the fact it asserts in these dispute 
settlement proceedings . 
6.3.2   Paragraph 7.286  
6.13.  Mexico requests this Panel to m odify the wording of paragraph 7.286 so that it expressly refers 
to what the expert, Pablo Cortese, said in his response to Panel question No.  77. 
6.14.  Costa Rica considers that the Panel's assessment correctly reflects the remarks made by 
Mr Cortese, and  notes that in his response to additional Panel question No.  1, the expert stated that 
the affidavits submitted by Mexico were not "officially validated" sources.  
6.15.  The Panel notes that, with respect to Exhibits MEX -93, MEX -94, MEX -95 and MEX -96, in 
addition to Mr Cortese's response to Panel question No.  77, paragraph 7.286 cites Mr Cortese's 
response to additional Panel question No.  1 for the expert. Therefore, paragraph 7.286 correctly 
reflects the expert's view, and does not need to be modified.  
6.3.3  Paragraph 7.295  
6.16.  Mexico requests the Panel to conduct a review of its conclusion in paragraph 7.295 that Mexico 
fails to explain what evidence of the presence of ASBVd in Costa Rica the cited documents contain. 
Mexico considers this assertion to be erroneous, since, accord ing to Mexico, throughout its written 
submissions it spells out why the exhibits corresponding to Sampling survey 2014 (MEX -64) and 
Sampling survey 2015 -2016 (MEX -65), in containing errors in their methodology, make it possible 
 
554 For example, in its claim under Article 5.1 of the SPS Agreement, Mexico asserts that it "presented 
conclusive evidence demonstrating that the disease and the pathogenic agent ha ve been present in Costa 
Rica." (Mexico's first written submission, para.  461). As part of that claim, Mexico also submits that Costa Rica 
failed to consider the circumstances that had a direct impact on the outcome of the risk assessments, such as 
"the pr esence of sunblotch and ASBVd in Costa Rica". (Mexico's first written submission, para.  386). In its 
claim under Article 5.5, Mexico asserts that, "[i]f we consider the viroid to be present in both territories, 
distinctions in the regulations aimed at frui t from Mexico and the absence of regulation for Costa Rican avocado 
producers point to unjustifiable or arbitrary differences." (Mexico's first written submission, para.  537). In its 
claim under Article 6.1, Mexico submits that the measures Costa Rica impo sed on Mexico and other 
avocado -producing countries would need to be attenuated for the following reasons: "[i]n the avocado -
producing areas of Costa Rica's territory, signs have also been found of the presence of ASBVd in areas where 
avocados are produced ." (Mexico's  first written submission, para.  607). In its claim under Article 3.1 of the SPS 
Agreement, Mexico states that "[t]he laboratory analysis results for the first sampling survey show the 
presence of ASBVd and sunblotch disease in Costa Rica, and yet Costa Rica continues to assert the absence 
thereof." (Mexico's second written submission, para.  297).  WT/DS524/R  
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  to infer that ASBVd is prese nt in Costa Rica. Mexico refers to various paragraphs in its written 
submissions.  
6.17.  Costa Rica considers the Panel's conclusion in paragraph 7.295 to be correct, since the 
documents corresponding to Sampling survey 2014 (MEX -64) and Sampling survey 201 5-2016 
(MEX-65) do not contain evidence of the presence of ASBVd in Costa Rica. Costa Rica submits that 
what Mexico is doing is asserting that Costa Rica's alleged errors in methodology make it possible 
to infer that ASBVd is present in Costa Rica, which, in Costa Rica's view, is, in probative terms, very 
different to positively demonstrating the presence of the viroid in Costa Rica.  
6.18.  The Panel notes that Mexico, in its request for review concerning paragraph 7.295, refers to 
paragraphs in its written submissions in which it addresses the errors that it believes exist in Costa 
Rica's sampling methodology. In paragraph 7.295, the Panel analyses Exhibits MEX -64 and MEX -65 
as part of the evidence that Mexico identifies as evidence from which it can be  inferred that ASBVd 
is present in Costa Rica, with Mexico describing these exhibits in this context as the "results of the 
laboratory analysis of samples taken in 2014 and 2015 -2016 in Costa Rica". The Panel observes  that 
Exhibits MEX -64 and MEX -65 contain nei ther laboratory analysis results nor any other information 
indicating that ASBVd is present in Costa Rica. In order to further clarify its explanation, the Panel 
has adjusted paragraph 7.295.  
6.3.4   Paragraph 7.301 of the Interim Report  
6.19.  Costa Rica re fers to the Panel's comment in paragraph 7.301 of the Interim Report that nor 
can it corroborate the follow -up that Costa Rica gave to the tree sampled and georeferenced by 
Dr Obregón. In Costa Rica's view, this paragraph could be more precise. According t o Costa Rica, it 
is not clear to whom the term "nor" refers, since, in the paragraph in question, the expert Pablo 
Cortese gives his opinion on the laboratory analysis of the assays submitted by Mexico, which was 
conducted in a laboratory (LADIFIT) in Mexi co, and not in Costa Rica. Costa Rica submits that Mr 
Cortese is giving his opinion on Mexico's actions, not on Costa Rica's actions.  
6.20.  Costa Rica further considers that the Panel can corroborate the follow -up that Costa Rica gave 
to the tree sampled a nd georeferenced by Dr Obregón, and refers to paragraph 7.756, in which the 
Panel describes Exhibit CRI -18. Costa Rica requests the Panel to consider modifying paragraph 7.301 
of the Interim Report by including that description and by removing the sentence  that reads "[n]or 
can the Panel corroborate the follow -up that Costa Rica gave to the tree sampled and georeferenced 
by Dr Obregón ." 
6.21.  Mexico considers Costa Rica's comment to be irrelevant, since the term "nor" refers to the 
opinion formed by the Pan el after reviewing the parties' evidence and Pablo Cortese's responses. 
According to Mexico, Costa Rica failed to provide sufficient evidence to demonstrate the traceability 
of the samples, or with respect to the follow -up that the SFE gave to the tree inf ected with ASBVd, 
so including the text proposed by Costa Rica would amount to this Panel making a factual finding 
without a proper basis. Mexico adds that the facts and exhibits submitted by Costa Rica are referred 
to by the Panel in paragraphs 7.275 thro ugh 7.278; that Dr Obregón's report is cited specifically in 
paragraph 7.277(b); and that paragraph 7.301 of the Interim Report contains part of the Panel's 
assessment regarding some of the responses provided by Mr Cortese.  
6.22.  The Panel observes that wh ile Costa Rica refers to the description of Exhibit CRI -18 in 
paragraph 7.756, the same exhibit is also described in paragraph 7.298, which precedes 
paragraph  7.301 of the Interim Report. Therefore, the Panel does not consider the addition 
requested by Cos ta Rica to be necessary.  
6.23.  In light of Costa Rica's comment that the Panel can corroborate the follow -up that Costa Rica 
gave to the tree sampled and georeferenced by Dr Obregón, the Panel considers it relevant to make 
some additional remarks. Exhibit CRI-18 contains a sampling record dated 10  December  2015 for a 
sample the seal of which is found in Annex 9 to Costa Rica's response to the Panel's information 
request of 3  August  2020. Exhibit CRI -18 also mentions the laboratory code and states that the 
result of the sample was negative, without presenting the result. The result does not appear in 
Annex  9, but can be found in Annex 4. However, given that the geographical coordinates of the tree 
sampled by Dr Obregón are not found in the exhibits submitted by Mexico, the Panel cannot 
corroborate the follow -up that Costa Rica asserts it gave to the tree sampled by Dr Obregón, even WT/DS524/R  
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  though Costa Rica's sampling record contains coordinates. The Panel has revised paragraph 7.301 
of the Interim Report, thereby ref lecting the earlier comments in paragraphs 7.302 and 7.303 of the 
Final Report.  
6.4  Request for review concerning trade in avocados between Costa Rica and Mexico and 
between Costa Rica and other countries in which ASBVd is present  
6.24.  With regard to par agraphs 7.270(d), 7.306, 7.307, 7.919, 7.1515, 7.1521, 7.1525, 7.1530, 
7.1534, 7.1535, 7.1546, 7.1631, 7.1661, 7.1867, 7.1886, 7.1989 and 7.2061, Costa Rica states 
that Mexico's assertion concerning the alleged more than 20 uninterrupted years of trade in avocados 
between Costa Rica and Mexico (and with other countries in which ASBVd is also present) is 
contested by Costa Rica and is not a proven fact.  
6.25.  Costa Rica requests that the Panel, when referring to this assertion, clarify that it is contested 
by Costa Rica on the basis of what has been indicated in the course of the proceedings, in particular 
in Costa Rica's response to Panel question No.  5, as well as during the meeting with the experts.  
6.26.  Costa Rica suggests a new paragraph refl ecting that Costa Rica disagrees with the assertion 
in question, and states that the Panel could include this paragraph after reflecting Mexico's assertion 
in paragraphs 7.270(d), 7.306, 7.307, 7.919, 7.1515, 7.1521, 7.1530, 7.1534, 7.1661, 7.1867, 
7.1886,  7.1989 and 7.2061.  
6.27.  With regard to paragraph 7.1525, Costa Rica considers that the Panel could clarify that the 
assertion made in Costa Rica's first submission, according to which "for 20 years, ASBVd was never 
detected in consignments of avocados fr om Mexico because Costa Rica, unaware that ASBVd was 
established in Mexico, did not impose phytosanitary requirements", is only relevant in relation to the 
period in which the presence of ASBVd in Mexico is documented and prior to the application of 
Costa  Rica's phytosanitary requirements, i.e. from 2009 to 2015.  
6.28.  Costa Rica also considers that the language in paragraphs 7.1535, 7.1546 and 7.1631 appears 
to suggest that Mexico's assertion is correct, even though the Panel has not issued a factual finding 
on whether trade in avocados has existed for more than 20 uninterrupted years between Costa Rica 
and Mexico (and with other countries in which ASBVd is also present). Costa Rica requests the Panel 
to consider modifying the language in these paragraphs and suggests how to modify this language.  
6.29.  Mexico considers t hat the Panel should reject Costa Rica's request to include the 
above -mentioned text in paragraphs 7.270(d), 7.306, 7.307, 7.919, 7.1515, 7.1521, 7.1530, 
7.1534, 7.1661 , and 7.1867, since these paragraphs refer to Mexico's arguments.  
6.30.  Mexico asserts t hat evidence showing trade in avocados for more than 20 uninterrupted years 
between Costa Rica and Mexico (and with other countries in which ASBVd is present) does exist. 
Mexico notes that there is evidence that the presence of ASBVd in Mexico dates back t o 1948, with 
molecular testing having been conducted since 2006.555 Mexico adds that its claim is not based on 
probability stemming from Costa Rica's lack of awareness or from its intention to impose 
phytosanitary measures once the presence of ASBVd in Mexi co was known, but on a factual matter, 
namely the flow of trade in fresh avocados for consumption from 1993 to 2015 between Mexico and 
Costa Rica. Mexico states that, for these reasons, the Panel should reject Costa Rica's request to 
modify paragraphs 7.15 35, 7.1546 and 7.1631.  
6.31.  Regarding the first part of paragraph 7.1535, Mexico states that it is clear that the Panel is 
referring to Mexico's concern, without this implying that the Panel accepts the assertion in question, 
and that Costa Rica's correct ions are therefore irrelevant. Mexico also requests that the Panel reject 
the insertion proposed by Costa Rica because the suggested wording is designed in such a way that 
it may be interpreted that the Panel is asserting that what Costa Rica said is corre ct. 
 
555 Mexico's request for review of the Interim Report, para.  17 (citing De la Torre Almaráz et al. (2009), 
(Exhibit MEX -70); Saucedo Carabez et al. (2019), (Exhibit MEX -175); and E.E. Trask, "Observations on the 
Avocado Industry in M exico", California Avocado Society Yearbook 1948, Vol. 33 (1948) (Trask (1948)), 
(Exhibit  MEX-176)). WT/DS524/R  
- 89 - 
  6.32.  Mexico also states that paragraph 7.1631 is intended to refer to  Mexico's claims and not Costa 
Rica's, and should therefore remain worded as originally proposed.  
6.33.  Mexico has no objection to Costa Rica's request to modify paragraph 7.1511, su bject to the 
Panel's consideration of Mexico's comments.  
6.34.  The Panel notes that paragraphs 7.270(d), 7.919, 7.1515, 7.1521, 7.1661, 7.1867, 7.1989 
and 7.2061 are summaries of Mexico's arguments, and therefore does not consider it appropriate to 
include  Costa Rica's arguments in these paragraphs. The Panel has made minor editorial adjustments 
to paragraphs 7.306 and 7.1886, so as to clarify that these are Mexico's arguments.  
6.35.  Paragraph 7.307 remains unchanged, as it reflects one of Mexico's argument s. Footnote 969 
has been added to paragraph 7.308, indicating that the matter of the more than 20 years of trade 
is an issue contested between the parties and that the Panel addresses this contested issue in 
paragraphs  7.1536 through 7.1541.  
6.36.  Paragrap h 7.1525 remains unchanged, as it accurately reflects the remarks made in 
Costa  Rica's first written submission and in its response to Panel question No.  5. Costa Rica's 
argument, as expressed at the meeting with the parties and the experts, has been added in a new 
paragraph, paragraph 7.1527.  
6.37.  Paragraph 7.1530 remains unchanged, as it is a summary of Mexico's argument. Costa Rica's 
argument concerning trade with other countries, as expressed in response to Panel question No.  5, 
has been added in a new paragraph, paragraph 7.1533.  
6.38.  The Panel has made a minor editorial adjustment to paragraph 7.1631 so as to clarify that it 
refers to Mexico's arguments. The Panel has also included a reference to Costa Rica's argument.  
6.39.  In light of this req uest for review, the Panel has addressed the contested factual issue of trade 
between Costa Rica and Mexico and between Costa Rica and other countries in which ASBVd is 
present, in new paragraphs 7.1536 through 7.1541. The Panel has made adjustments to par agraphs 
7.1535, 7.1544 and 7.1545.  
6.5  Request for review concerning  whether Manual NR -ARP-PO-01_M -01 may, directly or 
indirectly, affect international trade  
6.40.  With regard to paragraph 7.229, Mexico requests the Panel to also consider its comment on 
the response of the expert, Robert Griffin, to Panel question No.  137. 
6.41.  Costa Rica states that Mexico's comment on Robert Griffin's response merely repeats what the 
expert said. Costa Rica adds that, in any event, the expert's comment has nothing to do  with the 
Panel's finding that Mexico has failed to demonstrate that the manual may, individually, affect 
international trade, and that the Panel should therefore reject the request for review of 
paragraph  7.229.  
6.42.  The Panel notes that Mexico made its comment on Robert Griffin's response to Panel question 
No. 137 in a different context to that of paragraph 7.229. The finding in paragraph 7.229, regarding 
Mexico's argument that the manual may, in itself, affect international trade, seeks to indicate that  
Mexico fails to adequately explain the relevance of, or support, its assertions that "Costa Rica's 
objective was [for the manual] to control the risk assessor's judgement" and "the PRAs could, in a 
preconceived manner, establish a risk that would otherwis e be unjustifiable". The Panel has adjusted 
paragraph 7.229 to reflect this.  
6.6  Request for review concerning Reports ARP -002-2017 and ARP -006-2016 and the 
determination of absence of ASBVd in the territory of Costa Rica  
6.43.  Costa Rica considers that t he language of the last sentence of paragraph 7.447 could be 
clarified to prevent a reading that Costa Rica does not provide details of its specific and general 
surveillance. Costa Rica agrees that it does not provide details in its risk assessments of the  sampling 
surveys or other general surveillance activities, but asserts that it does provide these details in 
separate documents, referred to in paragraphs 7.517, 7.518, 7.521 and 7.522, which include, inter WT/DS524/R  
- 90 - 
  alia, Exhibits CRI -12, CRI -15, CRI -16, CRI -17, C RI-18, CRI -19, CRI -20, CRI -21, CRI -69, CRI -70, 
CRI-71, CRI -72, CRI -73, CRI -82, CRI -83, CRI -84, CRI -85, CRI -86, CRI -87, CRI -88, CRI -89, CRI -90, 
CRI-91, CRI -92, CRI -93, CRI -95 and CRI -96, and Costa Rica's response to the Panel's request for 
information.  
6.44. Costa Rica requests that the Panel, to avoid ambiguity in paragraph 7.447, consider adding a 
footnote clarifying that Costa Rica provides the details of the sampling surveys and general 
surveillance in separate documents, and suggests the wording of the requested footnote.  
6.45.  Mexico requests the Panel to reject Costa Rica's request. Mexico submits that Costa Rica's 
proposal implies a departure from the meaning of the Panel's assessment in that paragraph, as it is 
limited to the analysis of the PRAs and  not to the record of the proceedings. Mexico asserts that 
there is no further information in Reports ARP -002-2017 and ARP -006-2016 than that cited by the 
Panel in paragraph 7.447.  
6.46.  Mexico adds that the information subsequently submitted by Costa Rica  is analysed in the 
paragraphs specified by Costa Rica that correspond to a different assessment, namely the 
assessment of the specific surveillance system as  part of  the basis for the determination of absence 
of ASBVd in Costa Rica (section 7.4.5.1.2.3).  
6.47.  The Panel notes that paragraph 7.447 refers specifically to Reports ARP -002-2017 and 
ARP-006-2016, stating that "Costa Rica does not provide details in its reports of the sampling 
surveys or other general surveillance activities". This finding refers only to Reports ARP -002-2017 
and ARP -006-2016, and not to the information that the parties submitted in the course of the 
dispute, which is mentioned, inter alia , in paragraphs 7.513 -7.515, 7.518, 7.521 and 7.522. 
Therefore, the Panel does not consi der it appropriate to include the footnote suggested by 
Costa  Rica. The Panel has replaced "reports" with "Reports ARP -002-2017 and ARP -006-2016, of 
10 July 2017", so as to avoid any confusion about the subject of the assertion.  
6.7  Request for review con cerning the manner in which the Panel will analyse Mexico's 
arguments regarding the determination of absence of ASBVd in Costa Rica in the Reports 
ARP-002-2017 and ARP -006-2016  
6.48.  Costa Rica refers to paragraph 7.460, in which the Panel explains that it  will not carry out its 
analysis under Article  5.1 of the SPS  Agreement  on the basis of ISPMs Nos. 6 and 8, nor assess 
whether the determination of absence of ASBVd and its disease is based on those ISPMs. Costa Rica 
requests the Panel to clarify on what b asis the analysis of the determination of absence of ASBVd is 
carried out. Costa Rica submits that the SPS  Agreement  does not contain provisions on the 
surveillance systems of WTO Members and that ISPM Nos. 6 and 8 do not establish binding 
obligations in t his regard, but rather general guidelines that each country adjusts according to its 
priorities, capacities and available resources, and notes that this is recognized by the IPPC itself, 
which states that "[c]ontracting parties shall, to the best of their ability , conduct surveillance for 
pests".556 
6.49.  Mexico requests the Panel to reject Costa Rica's request, since the Panel clearly established 
the basis for its analysis throughout section 7.4.5.1.2 of the Interim Report. Mexico states that the 
assessment  of whether a PRA is appropriate to the circumstances starts with a case -by-case 
determination, and that the analysis of the determination of absence of ASBVd in a particular 
territory may be a specific national situation that is analysed on the basis of A rticle 5.1 of the 
SPS Agreement , and not on the basis of the mandatory nature of ISPM Nos. 6 and 8 as incorrectly 
suggested by Costa Rica.  
6.50.  Mexico adds that the paragraph in question is not meant to make ISPM Nos. 6 and 8 binding 
in respect of the obligations contained in the SPS  Agreement , and that the Panel noted that ISPM 
Nos. 6 and 8 are merely tools that are illustrative for determining what would be considered to be 
legitimately scientific in a risk assessment. Mexico considers that the Panel made an objective 
assessment of the facts, in analysing whether the determination of absence of ASBVd in the territory 
 
556 Costa Rica's request for review of the Inte rim Report, para.  2.23. (emphasis added by Costa Rica)  WT/DS524/R  
- 91 - 
  of Costa Rica should be considered legitimately scientific based on the standards of the scientific 
community.  
6.51.  In paragraph 7.455, the Panel notes that Mexico advances some of its arguments relating to 
the determination of absence of ASBVd in Costa Rica in the context of its claims under Article  3 of 
the SPS  Agreement , and that there, Mexico includes the point on Costa Rica's declarat ion that ASBVd 
is absent in its territory, and concludes that this declaration of freedom from ASBVd and its disease 
is not based on ISPM Nos. 6 and 8. In paragraph 7.456, the Panel explains that in the context of its 
claims under Articles 5.1, 5.2, 5.3 an d 2.2 of the SPS  Agreement , in its first written submission, 
Mexico makes reference to its arguments advanced under Articles 3.1 and 3.3. It is in this context 
that the Panel concludes in paragraph 7.460 that it will not carry out its analysis under Articl e 5.1 
of the SPS  Agreement  on the basis of ISPM Nos. 6 and 8, nor assess whether the determination of 
absence of ASBVd and its disease is based on those ISPMs.  
6.52.  In paragraph 7.458, the Panel recalls that its task under Article  5.1 of the SPS  Agreement  is 
to assess whether the determination of absence of ASBVd, as part of the scientific basis for Reports 
ARP-002-2017 and ARP -006-2016, must be considered to be legitimately scientific according to the 
standards of the scientific community concerned. In th e following paragraph, the Panel explains that 
it refers to the ISPMs as tools that are illustrative for determining what would be considered to be 
legitimately scientific in a risk assessment according to the standards of the scientific community in 
relation to the inputs of a risk assessment related to the determination of pest status in a territory.  
6.53.  The Panel conducted its analysis of the determination of absence of ASBVd in Costa Rica as 
described in section 7.4.5.1.2.1. The Panel considers the ex planations in section 7.4.5.1.2.1 to be 
thorough, and therefore no additional explanations are required. The Panel has made an editorial 
adjustment to paragraph 7.460.  
6.8  Requests for review concerning the general surveillance system as part of the basis  
for the determination of absence of ASBVd in Costa Rica  
6.8.1   Paragraphs 7.276 and 7.482  
6.54.  Costa Rica states it is aware that, in its first written submission, it claimed that its status as 
free of ASBVd is confirmed by the phytosanitary databases of  CABI and the EPPO. However, 
Costa  Rica points out that it stated in its responses to the Panel's questions that "the determination 
of absence of ASBVd in its territory was not based on the CABI and EPPO databases, but on the 
information obtained by the NP PO of Costa Rica from surveillance activities in the light of ISPM 
Nos. 6 and 8", and that the CABI and EPPO databases "draw on bibliographical references and official 
information from the NPPO of each country".557 Costa Rica requests the Panel to consider adding to 
the language in paragraph 7.276 and updating the corresponding footnote in order to set out its 
arguments in full.  
6.55.  Costa Rica also requests the Panel to assess the relevance of paragraph 7.482 in light of the 
above, particularly Costa Rica' s clarification that the EPPO and CABI databases were not in any way 
used as the basis for the determination of absence of ASBVd.  
6.56.  Mexico has no objection to Costa Rica's request to add to paragraph 7.276 insofar as the 
paragraph reflects Costa Rica's  claims and not a finding of the Panel. Mexico requests the Panel to 
reject Costa Rica's request to clarify paragraph 7.482 because, in its view, the clarification is 
inconsistent with the claims that Costa Rica made throughout its first written submission . 
6.57.  The Panel notes that Costa Rica's arguments expressed in its responses to the Panel's 
questions, to which Costa Rica refers in its request for review, are reflected in paragraphs 7.466 and 
7.467. Therefore, the Panel does not consider the addition to paragraph 7.276 requested by 
Costa  Rica to be necessary.  
6.58.  In the Panel's view, paragraph 7.482 is still necessary, considering the arguments and exhibits 
submitted by Costa Rica throughout the dispute. However, in order to address Costa Rica's comm ent 
 
557 Costa Rica's request for review of the Interim Report, para.  2.8 (citing Costa Rica's response to Panel 
question No.  136, paras.  92 and 93).  WT/DS524/R  
- 92 - 
  regarding the development of its argument, the Panel has added to this paragraph that Costa Rica 
itself acknowledged, in its response to the Panel's questions following the Panel's second meeting 
with the parties, that the databases draw on bibliograph ical references and official information from 
the NPPO of each country.  
6.8.2   Paragraph 7.477  
6.59.  Costa Rica refers to paragraph 7.477, in which the Panel states that Costa Rica does not specify 
which of the bibliographical references in the reports wer e consulted in relation to the status of 
ASBVd in Costa Rica. In Costa Rica's view, the content of this paragraph could be clarified.  
6.60.  Costa Rica refers to paragraphs 7.475, 7.476 and 7.481, and asserts that, in its response to 
the Panel's information  request, it did specify which of the bibliographical references in the reports 
were consulted in relation to the status of ASBVd in Costa Rica, namely all references contained in 
the reports submitted to the Panel as Exhibits MEX -131 and MEX -123 (Reports ARP-002-2017 and 
ARP-006-2016). Costa Rica adds that, as a result of this consultation and as noted by the Panel, 
Costa Rica found no information on the presence of ASBVd in Costa Rica. Costa Rica requests the 
Panel to consider deleting paragraph 7.477.  
6.61. Mexico submits that Costa Rica's request is contradictory, and that the Panel should reject it. 
In Mexico's view, Costa Rica merely points out that the information was contained in all the 
references in Exhibits MEX -131 and MEX -123, which is a general remark that does not specifically 
identify the references used in relation to the status of ASBVd in Costa Rica. Mexico asserts that 
Costa Rica should have demonstrated specifically which documents it used.  
6.62.  Mexico adds that the reference cited is to a finding by the Panel in which the analysis is confined 
to an assessment of the specificity of the evidence contained, or referred to, in the PRAs addressing 
the status of ASBVd in Costa Rica; and that what the Panel meant was that Costa Rica merely made 
a reference to the literature generally, without indicating to which article or abstract it was 
specifically referring.  
6.63.  As the Panel points out in paragraph 7.475, in its response to the Panel's request for 
information dated 3  August  2020, Costa Rica notes that Exhibits MEX -131 and MEX -123 contain 
Reports ARP -002-2017 and ARP -006-2016, the bibliographies to which list the relevant publications 
revised by the SFE with regard to the status of ASBVd in Costa Rica. As stated in paragraph 7.476, 
Costa Rica also notes that the bibliographical references consulted by the SFE for ASBVd are given 
in the reports submitted to the Panel as Exhibits MEX -131 and MEX -123 (Reports ARP -002-2017 and 
ARP-006-2016).  
6.64 The Panel considers that, in this context, para graph 7.477 correctly reflects its observation that 
Costa Rica does not specify in its response which of the bibliographical references in the reports 
were consulted in relation to the status of ASBVd in Costa Rica. Therefore, the Panel has decided to 
leave the paragraph unchanged. In light of the request for review, the Panel has adjusted the 
language in paragraph 7.481 in order to further clarify its explanation.  
6.8.3   Paragraph 7.483  
6.65.  Costa Rica refers to paragraph 7.483, in which the Panel asserts  that it does not find in the 
record any further attempt by Costa Rica to consult other bibliographical sources, such as other 
scientific articles. Costa Rica requests further guidance from the Panel regarding bibliographical 
sources, such as other scienti fic articles, which Costa Rica should have consulted as part of its 
general surveillance.  
6.66.  Costa Rica considers this guidance to be of particular importance because, in Costa Rica's view, 
the experts unanimously agree in their responses to Panel quest ion No.  91 that the bibliographic 
selection of Costa Rica's risk assessments is correct, ample, very adequate, encompasses existing 
sources and clearly represents a good  faith effort to consult and include relevant available 
information. Costa Rica states that the expert, Robert Griffin, notes that an unusually high proportion 
of the evidence used for the PRA is from relatively recent sources (last 20  years), and that the type 
of information is largely peer -reviewed scientific papers, which is considered hi ghly reliable 
information according to section 2.2 of ISPM No.  8. WT/DS524/R  
- 93 - 
  6.67.  Costa Rica adds that the Panel's clarification on this point is of particular importance, given 
that, in Costa Rica's view, the need to continually gather scientific articles that do n ot report the 
presence of a pest in a territory could amount to a requirement to prove a negative, which is highly 
difficult, if not impossible. Costa Rica submits that, to the extent that no bibliographical source 
reports the presence of a pest in an area , it can be understood that the pest has not been recorded 
in that area; and that ISPM No.  8 states that if there are no records of the presence of the pest in 
the general surveillance data of an area, it may be reasonable to conclude that a pest is or has  
always been absent.  
6.68.  In Mexico's view, Costa Rica's request is based on an erroneous interpretation of the Interim 
Report and the experts' responses. Mexico does not consider this to be the appropriate stage of the 
proceedings for the Panel to provid e further guidance regarding the bibliographical sources that 
Costa Rica should have consulted as part of its general surveillance. Mexico considers the Panel to 
have accurately reflected the experts' responses since, in their responses to question No.  91, the 
experts did not assess whether Costa Rica made any further attempt to consult other bibliographical 
sources; rather, they only responded to the question whether the bibliographic selection of the risk 
assessments was correct.  
6.69.  Mexico agrees with Costa Rica's assertion that "[t]o the extent that no bibliographical source 
reports the presence of a pest in an area, it can be understood that the pest has not been recorded 
in that area", but points out that the NPPO of the country implementing a phytos anitary measure 
must constantly update the bibliographical sources justifying the phytosanitary measures being 
applied. Mexico adds that more than four years have passed since Reports ARP -002-2017 and 
ARP-006-2016 were published, and Costa Rica has not rev ised the assessments despite having 
additional information at its disposal.  
6.70.  The Panel notes that question No.  91 for the experts, to which Costa Rica refers, concerns the 
type, quantity and quality of the bibliographic selection that Costa Rica used to prepare and 
substantiate Report ARP -002-2017. The Panel has reflected the experts' opinions in that respect 
later i n its report. Paragraph 7.483 refers to Costa Rica's general surveillance activities with respect 
to ASBVd, and not what is described above.  
6.71.  Regarding Costa Rica's general surveillance activities with respect to ASBVd, as indicated in 
paragraph 7.472, it seems to the expert Pablo Cortese that the continuity of the activities undertaken 
over time is not well documented, nor is it clear how the activities are actually documented, and he 
gives as an example that a revision of sources is al luded to, but that the sources are the same as in 
the PRA, and they are also not clearly specific to ASBVd in all cases.  
6.72.  The purpose of paragraph 7.483 is to note that the Panel does not find in the record any 
attempt by Costa Rica to continually eva luate sources, i.e. there is a lack of information corroborating 
that Costa Rica continues to gather and explore bibliographical sources, such as scientific articles 
subsequent to Reports ARP -002-2017 and ARP -006-2016, in order to check whether any of them  
contain information relating to the presence of ASBVd in Costa Rica. This is in spite of Costa Rica's 
claim that the sources of information emanating from the general surveillance were revised on three 
separate occasions. The Panel has adjusted the langua ge of paragraph 7.483 to further clarify the 
point made therein.  
6.8.4   Paragraph 7.486  
6.73.  Costa Rica refers to paragraph 7.486, in which the Panel states that, although the Panel may 
assume that this information relates to the report by Dr Obregón, the  report does not provide further 
details. Costa Rica considers that this paragraph could be clarified, and that the Panel does not need 
to assume anything.  
6.74.  Costa Rica claims that the report mentioned by the Panel, namely its response to the Panel's 
request for information, states that a specific example of the SFE's role in the passive general 
surveillance with respect to ASBVd is contained in Exhibit MEX -129 (ASBVd diagnostic testing by WT/DS524/R  
- 94 - 
  Laboratorios Dr Obregón ), and cites Exhibit CRI -18.558 Costa Rica  refers to the Panel's statement in 
paragraph 7.756 on Exhibit CRI -18. 
6.75.  Costa Rica points out that its response to the Panel's request for information is clear in that 
Costa Rica's monitoring actions concern the report by Dr Obregón, and requests the Panel to consider 
amending paragraph 7.486 by deleting "although the Panel may assume that" and "the report does 
not provide further details".  
6.76.  Mexico believes that agreeing to delete the statements would change the meaning of the 
Panel's finding from  an assumption to an assertion. For Mexico, it is indisputable that the traceability 
that Costa Rica attributes to the samples from the farm and tree from which Dr Obregón obtained 
them is unclear.  
6.77.  The Panel notes that paragraph 7.486 contains two ci tations – the "Informe de vigilancia para 
la determinación de la ausencia del ASBVd en las plantaciones de aguacate en Costa Rica " 
(Surveillance report for determining the absence of ASBVd in avocado plantations in Costa Rica) of 
2019, contained in Exhibit  CRI-17, and Costa Rica's response to the Panel's information request. 
The 2019 surveillance report for determining the absence of ASBVd in avocado plantations in Costa 
Rica does not specify whether it addresses Dr Obregón's report. However, when Costa Ric a's 
response to the Panel's information request deals with the report, references are made to Exhibits 
MEX-129 and CRI -18, which relate to Dr Obregón's samples. In light of the foregoing, the Panel has 
agreed to amend paragraph 7.486.  
6.9  Requests for rev iew concerning the specific surveillance system as part of the basis 
for the determination of absence of ASBVd in Costa Rica  
6.9.1   Paragraph 7.570  
6.78.  Regarding paragraph 7.570, Costa Rica states that the assertion by the expert Pablo Cortese 
that "only  a few samples were examined in a few days, and those places were not selected, or it is 
not clear what the criteria were for selecting those places" should be considered in light of 
Costa  Rica's explanation of the dates of the samples.  
6.79.  According to Costa Rica, Mr Cortese's assertion refers to the sample dates as indicated in the 
Excel tables setting out the results of the specific surveys carried out in the context of the pest 
ASBVd (2104, 2015 -2016, 2017 -2018 and 2019), contained in Annex 9 of Costa  Rica's response to 
the Panel's information request.  
6.80.  Costa Rica submits that it contended during the meeting with the experts that Mr Cortese's 
assertion is based on the understanding that the dates contained in Annex 9 are the dates on which 
the sam ples were collected. Costa Rica nevertheless states that "'the date contained in the Excel 
table [ …] is not the date of the sample as such, but rather the date on which the sample was entered 
into the digital system'. For example, '[t]he sampling period [ …] of the first specific survey was from 
1 September  2014 to 8  October  2014, as can be corroborated by Exhibit MEX -115. In other words, 
it was more than one month and one week of sampling. The information was simply digitized on the 
two days that appear in the Excel table'".559 Costa Rica adds that the second sampling survey lasted 
over two months "from 24  November  2015 to 14  January  2016", the third "from 27  November  2017 
to 13  February  2018, i.e. two and a half months of sampling", and the fourth started on 
"19 February  2019 and ended on 9  April 2019, i.e. almost two months".560 
6.81.  Costa Rica states that, to provide a complete version of the factual elements of this dispute, 
it would be grateful if its explanation of the dates of the samples coul d be reflected in the 
Panel  Report . 
 
558 Costa Rica's request for review of the Interim Report, para. 2.37 (citing Costa Rica's response to the 
Panel's information request, paras.  14-15). (emphasis added by Costa Rica)  
559 Costa Rica's request for review of the Interim Report, para.  2.42 (citing Costa Rica, transcript of the 
Panel's meeting with the p arties and the experts, day 4, pp. 42 -43).  
560 Costa Rica's request for review of the Interim Report, para.  2.42 (citing Costa Rica, transcript of the 
Panel's meeting with the parties and the experts, day 4, pp. 42 -43).  WT/DS524/R  
- 95 - 
  6.82.  Mexico submits that paragraph 7.570 faithfully expresses the opinion of Pablo Cortese, and 
the requested amendment should therefore be rejected. Mexico claims that Costa Rica had the 
opportunity to inform the exper t of its arguments and concerns with respect to the opinions 
expressed, and that the expert's opinion did not change in light of Costa Rica's comments and 
observations.  
6.83.  The Panel observes that the duration  of each sampling  survey  was reflected in par agraph 7.491 
according to the documentary information provided by the parties. In response to Costa Rica's 
request, the Panel has reviewed this information again. The Panel has not found all the exact start 
and end dates of the sampling surveys indicated b y Costa Rica. The Panel has added footnotes with 
further details concerning the dates of the sampling surveys, based on the information that it has 
been able to corroborate from the exhibits in the record.  
6.84.  With regard to the dates of the samples, Cos ta Rica stated at the Panel's meeting with the 
parties and the experts that "the date contained in the Excel table, which is Annex [9] of the 
Additional Surveillance Report, is not the date of the sample as such, but rather the date on which 
the sample was  entered into the digital system", and that it is not that there were only two days of 
sampling, but that the information was simply digitized on the two days that appear in the Excel 
table.561 
6.85.  First, the Panel observes that the comment made by Pablo Cortese during the second day of 
the Panel's meeting with the parties and the experts (page 39 of the transcript), to which 
paragraph  7.570 refers, focuses on the issue of selecting the sample sites, and not the dates of the 
samples. Costa Rica's comment d uring the fourth day of the meeting (pages 42 -43 of the transcript) 
was made in reaction to Mr Cortese's comment during the third day of the meeting (page 35 of the 
transcript) regarding information contained in Annex 9 and, in particular, regarding the wo rk days  
of the  sampling surveys that the expert found, and his comment that he was struck by the fact that 
all the samples were taken on only two days in 2014, for example. Second, the Panel observes that 
the title of the Excel table column in Annex 9 to w hich Costa Rica appears to refer is "dt_Visita" 
(dt_Visit) for years 2014 -2016 and "Fecha_Visita_Seguimiento" (Follow -up_Visit_Date) for years 
2017-2019. Furthermore, the completed monitoring forms contained in Exhibit CRI -149 include the 
visit dates, and those found in Annex 9 match the dates indicated in the "dt_Visit"/"Follow -
up_Visit_Date" column. The Panel is therefore unable to corroborate Costa Rica's claim.  
6.86.  In view of the foregoing, the Panel does not consider it appropriate to amend the repor t based 
on Costa Rica's statement made at the Panel's meeting with the parties and the experts. However, 
the Panel has reflected Costa Rica's statement and the above observation in a footnote to 
paragraph  7.770, in which Annex 9 is described and it is ment ioned that the visit date is given.  
6.9.2   Paragraphs 7.572 through 7.581  
6.87.  With regard to paragraphs 7.572 through 7.581, Costa Rica requests the Panel to clarify why 
prioritizing avocado -producing areas in the sampling surveys is not "scientifically sound". Costa Rica 
points out that, while it has always acknowledged that there is a risk of ASBVd being introduced in 
backyards and waste disposal sites (through spontaneous germination), it has also been vehemently 
and repeatedly underscored in this disp ute that "diversion from intended use of avocado waste (i.e. 
its seed) is a deep -rooted cultural practice, especially in the highland area where the Hass variety is 
grown"562, that "farmers successfully use the Hass seed to obtain a rootstock and graft Hass onto 
it"563, and that it was common for them "not to acquire their certified propagation material from 
nurseries, but to use seed that is sometimes of unknown origin".564 
 
561 Costa Rica, transcript of the Pane l's meeting with the parties and the experts, day 4, p. 42.  
562 Costa Rica's request for review of the Interim Report, para.  2.45 (citing Costa Rica's response to 
Panel question No.  169, para.  197).  
563 Costa Rica's request for review of the Interim Report, pa ra. 2.45 (citing Costa Rica's response to 
Panel question No.  166, para.  190).  
564 Costa Rica's request for review of the Interim Report, para.  2.45 (citing Costa Rica's response to 
Panel question No.  13; CONSULSANTOS (2010), (Exhibit MEX -119); Centro de Investigación en Cultura y 
Desarrollo, Universidad Estatal a Distancia de Costa Rica, "Prácticas culturales de siembra y manejo de semillas 
de aguacate en Costa Rica", informe de investigación, 10 de octubre de 2019 (Cultural practices in plantin g 
and managing avocado seeds in Costa Rica (2019)), (Exhibit CRI -44), p. 12; and Ministerio de Agricultura y WT/DS524/R  
- 96 - 
  6.88.  Costa Rica states that it would appreciate further details as to why it would be deficient to 
stagger the surveys and prioritize areas considered to be most at risk, i.e. Hass avocado production 
areas, where diversion from intended use is a cultural practice among farmers, who use Hass seeds 
to obtain a rootstock and graft Has s onto it. Costa Rica asserts that Pablo Cortese said that priority 
should be given to areas where there is more likelihood of the disease being detected and that sites 
where diversion from intended use is most likely to occur should be selected. Costa Ric a adds that 
the expert Fernando Pliego Alfaro said that it appears that Hass is grown at a certain altitude, and 
therefore if diversion from intended use occurs in respect of Hass on Hass, Costa Rica should ensure 
that this entire zone is very well sampled  because it is the niche where the disease can actually 
appear.  
6.89.  Mexico submits that Costa Rica's proposal suggests that it is attempting to return to the debate 
regarding the diversion from intended use practices in its territory and the sampling of such 
practices. However, Mexico believes that the assessment of the facts and the responses from the 
experts are clearly addressed not only in the paragraphs mentioned, but also throughout the entire 
Interim Report. In Mexico's view, this is not the approp riate stage to request a de novo  review, and 
if Costa Rica requires more information in order to understand how an area of risk should be 
prioritized, it should refer to the information presented by Pablo Cortese during the third day of the 
meeting with th e experts. Mexico states that Mr Cortese highlighted the importance of prioritization 
and how Costa Rica failed to do this.  
6.90.  The Panel observes that, throughout the section on the coverage of the sampling surveys and 
representativeness of the samples,  the Panel explains in detail why it arrives at its conclusion in 
paragraph 7.581 that the sampling survey's coverage , centred on the main areas of production, fails 
to properly assess the risk of other areas where there is a probability of the disease bei ng detected, 
and that Costa Rica's sampling surveys, which underpin the determination that its entire territory is 
free of ASBVd, are not sufficiently representative considering the risk, which affects the reliability of 
the determination of absence of ASB Vd in Costa Rica, and therefore the scientific legitimacy of this 
determination.  
6.91.  With respect to Costa Rica's assertion that, in the 2014 sampling survey, sampling focused on 
the producing area because of the risk of ASBVd being introduced into Los S antos, the Panel notes 
in paragraph 7.560 that Costa Rica itself recognizes that its concern is not limited to production 
sites; that, from its first written submission, Costa Rica has asserted that diversion from intended 
use is a practice common to both private individuals, who plant seeds in their yards, and farmers 
who do the same with the seeds of consumed or discarded fruits; and that Costa Rica notes that, 
while diversion from intended use is one of the risk factors for the introduction of ASBVd into  
Costa  Rica, it is not the only one, and mentions the risk arising from seeds discarded as waste.  
6.92.  The Panel analyses in detail the relevant claims in Reports ARP -002-2017 and ARP -006-2016 
and goes on to explain in paragraph 7.565 that both Costa Rica 's arguments and Reports ARP -002-
2017 and ARP -006-2016 themselves show that Costa Rica's concern regarding the introduction of 
ASBVd is not limited to production sites, but also extends to places where diversion from intended 
use by private individuals exi sts and places where spontaneous germination occurs, which includes 
places where wild and backyard trees grow in Costa Rican territory, and Costa Rica itself suggests 
that there is a risk of ASBVd being introduced in all regions of the country, by pointing  out the 
presence of avocado trees across the whole of the country.  
6.93.  The Panel also reflects the experts' opinions, including that of the surveillance expert, 
Pablo  Cortese, in the sense that, according to the information provided, all existing risk s ites were 
not taken into account; that the main consequence of this is that there could be an incipient outbreak 
of this disease that would not be found; and that only a few samples were examined in a few days, 
and those places were not selected, or it is not clear what the criteria were for selecting those places, 
and, for him, some uncertainties remain.  
6.94.  It is in this context that the Panel states that it does not consider Costa Rica's explanation that 
it focused on the production zone because of the  risk of introduction into that zone to be scientifically 
sound.  
 
Ganadería de Costa Rica, "Manual para el Establecimiento y Manejo de un Vivero de Aguacate (Persea 
americana Mill.)", aprobado el 22 de mayo de 201 7 (Manual for Nurseries (2017)), (Exhibit CRI -43), p. 20).  WT/DS524/R  
- 97 - 
  6.95.  The Panel continues its explanation by noting, for example, that:  
a. It is not apparent from the evidence submitted throughout the proceedings that Costa Rica 
has considered and priorit ized the areas where the risk of the emergence of ASBVd is 
highest, and it is not clear that there is any criterion for selecting ASBVd sampling sites 
that takes into account sites at particular risk. However, it is apparent from the exhibits 
concerning Co sta Rica's sampling surveys that Costa Rica's intention was to conduct its 
sampling solely at production sites, and primarily in the largest production zone 
(paragraph 7.576).  
b. It finds no support in the record for Costa Rica's response following the Pan el's second 
meeting with the parties, according to which its surveillance covers all areas where 
avocado is present, but prioritizes production zones, as it is in these zones that there is a 
greater risk of the introduction, establishment and spread of ASB Vd because of diversion 
from intended use, and the practice of Hass -on-Hass grafting, among other factors 
(paragraph 7.577).  
c. It finds no evidence that Costa Rica had, in its first two sampling surveys conducted prior 
to the drafting of Reports ARP -002-2017 and ARP -006-2016, adequately considered the 
characteristics of the avocado population in its territory and the relevant cultivation 
practices, and that it had prioritized the areas most at risk (paragraph 7.578).  
d. By the time of its last sampling sur vey in 2019, Costa Rica had still not designed a sampling 
survey taking into account these characteristics and practices, despite its assertion that 
samples were taken from backyard trees in the period 2015 -2019, and that, throughout 
the surveillance exerc ise, sampling is conducted in backyards, in urban gardens and even 
on roadsides (paragraph 7.579).  
6.96.  The Panel also notes that Pablo Cortese states that one must always make every effort to find 
evidence and be certain that this pest is not present.565 Furthermore, Mr Cortese points out that 
reference is made to the entire production area, but when he sees the maps and reports, the same 
area is not covered every year, despite the fact that the maps are not very detailed. The expert adds 
that it is imposs ible to see what is covered – whether it is the entire area in all years, or certain 
parts. It is also unclear to him whether sites are covered, and whether in that selection of sites the 
ones with the highest likelihood of occurrence or outbreak of the di sease were prioritized, because 
of the issue of diversion from intended use.566 
6.97.  The Panel considers its explanation to be detailed, and does not believe that it is necessary to 
provide further clarification. The Panel has adjusted the language in paragraph 7.572 and has added 
a paragraph 7.571 to reflect Mr Cortese's comments in the previous paragraph.  
6.9.3   Paragraphs 7.648 through 7.671  
6.98.  Costa Rica refers to paragraphs 7.648, 7.651 and 7.671, and requests the Panel to clarify what 
type of e vidence is required to verify the use in practice or the application of the surveillance 
protocols and sampling methodology reviewed by the Panel. Costa Rica also requests the Panel to 
provide further details on the obligation to have protocols and specifi c methodologies (as opposed 
to general procedures) for sampling surveys of all quarantine pests in a country, especially bearing 
in mind that quarantine pests are precisely the pests that are absent in a country's territory and 
which may be extremely numer ous. 
6.99.  Mexico submits that the Panel's responsibility is to clarify the consistency of Costa Rica's 
measures based on the SPS  Agreement , rather than telling Costa Rica how to fulfil its obligations 
correctly. Mexico points out that the type of evidence  that a WTO Member should use and submit in 
proceedings depends on the assertion to be substantiated and not on what a panel may deem to be 
correct. In Mexico's view, Costa Rica should know what type of evidence is sufficient and necessary 
 
565 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 60.  
566 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 36.  WT/DS524/R  
- 98 - 
  to substantiate its claims, and the Panel does not have the authority to tell Costa Rica what type of 
evidence is required to verify the facts that it asserts.  
6.100.  The Panel notes that the intention behind the Panel's statement in paragraph 7.648, that the 
use in pract ice of the steps described in Exhibits MEX -64 and MEX -65 cannot be confirmed, is to 
emphasize the fact that these steps are not reflected in any document from prior to the 2014 and 
2015-2016 sampling surveys. Similarly, in paragraph 7.652, the Panel notes that Costa Rica asserts 
that officials responsible for the ASBVd sampling surveys received copies of these documents, but 
the nine steps on the "collection of and handling processes for sunblotch (viroid) samples in avocado 
(Persea americana )" contained in  Exhibits MEX -64 and MEX -65 do not appear in any document in 
the record relating to the 2017 -2018 and 2019 sampling surveys, nor is reference made to them. 
The Panel has made adjustments to paragraph 7.648 in order to further clarify the sentence in 
questi on. 
6.101.  Likewise, the intention behind the Panel's statement in paragraph 7.651, that there is no 
evidence of the use of the procedure in Exhibit CRI -146, is to highlight the fact that no reference is 
made to this document in any document relating to th e first three sampling surveys, which were 
conducted when the procedure seems to have been in force. The Panel has made adjustments to 
paragraph 7.651 in order to further clarify the sentence in question.  
6.102.  With regard to Costa Rica's request for furt her information on what Costa Rica characterizes 
as "the obligation to have protocols and specific methodologies", the Panel notes that, after 
describing an exhibit submitted by Costa Rica (Exhibit CRI -82) and Pablo Cortese's opinion in that 
respect, the P anel explains in paragraph 7.654 of the Interim Report (paragraph 7.663 of the Final 
Report) that, in its view, in the case of ASBVd a more specific procedure would also be required, 
since the particular characteristics of the pest to be detected (ASBVd , in this case) and those of the 
pathway (crop) of concern (avocado, in this case) must be considered, and that this would allow the 
surveillance to be focused, and ensure a rigorous process and a reliable outcome.  
6.103.  In a very similar context, after desc ribing an exhibit submitted by Costa Rica (Exhibit CRI -88) 
and Mr Cortese's opinion in that respect, the Panel considers in paragraph 7.660 of the Interim 
Report (paragraph 7.665 of the Final Report), that, although Costa Rica points out that neither the 
SPS Agreement  nor the ISPMs require WTO Members to introduce pest -specific surveillance 
protocols, the lack of specific protocols for ASBVd reduces the scientific rigour of the sampling 
surveys by failing to take into account the particular requirements of ASBVd detection surveys.  
6.104.  The Panel refers to the specific circumstances of this case, considering the parties' arguments, 
the exhibits submitted and the experts' opinions. The Panel makes no general finding that there is 
an obligation to have protocols and specific methodologies for sampling surveys of all quarantine 
pests for a country, as Costa Rica suggests. Costa Rica also states that quarantine pests are pests 
that are absent in a country's territory and which may be extremely numerous. Ho wever, Costa Rica 
identified ASBVd as a pest of interest or concern, and this is the pest on which the Panel's work is 
focused in this dispute.  
6.105.  Furthermore, regarding crops, as the report notes, the exhibits to which the Panel refers in 
these paragr aphs (Exhibits CRI -82 and CRI -88) specifically mention coffee and pineapple, 
respectively, but neither of the exhibits refer to avocado crops. In other words, the Costa Rican 
authority itself refers to certain specific crops in its procedures.  
6.106.  It is worth mentioning that, with respect to the description of the survey methodology and 
the sampling procedure in particular, ISPM No.  6 provides guidance stating that the procedure would 
be determined by the biology of pest or purpose of survey. As regards pest surveys, said ISPM states 
that the selection of survey procedures may be determined by the type of sign or symptom by which 
the pest can be recognized, and by the accuracy or sensitivity of techniques used to test for the 
pest.567 The Panel recalls tha t ISPM No.  6 is a tool that is illustrative for determining what would be 
considered to be legitimately scientific in a risk assessment according to the standards of the 
scientific community in relation to the inputs of a risk assessment related to the det ermination of a 
pest status in a territory.  
 
567 ISPM No.  6, (Exhibit MEX -75), p. 6.  WT/DS524/R  
- 99 - 
  6.107.  Revised ISPM No.  6 states that surveillance protocols should provide clear instructions for 
carrying out a surveillance activity in a consistent manner, and that surveillance managers and 
officers should be aware of current methodologies associated with specific groups of p ests and should 
ensure that the methods are used appropriately to deliver reliable surveillance outcomes.568 
6.108.  In view of the foregoing, the Panel considers that Costa Rica's request for further explanation 
from the Panel of what Costa Rica characteriz es as "the obligation to have protocols and specific 
methodologies (as opposed to general procedures) for sampling surveys of all quarantine pests in a 
country" is not in line with the Panel's statement, and has no merit . However, in order to further 
clarify its explanation, the Panel has rearranged and adjusted paragraph 7.654 of the Interim Report 
(paragraph 7.663 of the Final Report), and has added paragraph 7.664.  
6.9.4   Paragraph 7.722  
6.109.  Costa Rica observes that Annex 9 contains codes from 2014 because it lists all the survey 
results from 2014 to 2019, while Exhibit CRI -87 provides the backyard avocado sampling sites for 
the years 2015 -2019. Costa Rica requests the Panel to explain in more detail what the drawback 
would be for a document to refer t o a longer period (2014 to 2019), and for another document to 
set out information concerning one phase of this period (2015 to 2019).  
6.110.  Mexico points out that the text of paragraph 7.722 clearly expresses the doubts and 
inconsistencies found in Annex 9, as well as in Exhibit CRI -87, therefore no further explanation is 
required in the report. Mexico adds that Costa Rica misunderstands the Panel's determination, since 
it clearly explains the drawback for Annex 9, which refers to the period 2014 to 2019, not to contain 
the codes found in Exhibit CRI -87, which apparently covers a shorter period.  
6.111.  The Panel observes that it has not stated that it is problematic per se  for a document 
(Annex  9) to refer to a longer period than another document (Exhibit C RI-87). 
6.112.  The Panel notes that, assuming that Annex 9 contains Costa Rica's ASBVd sample record for 
2014-2019, including samples from backyards569, what paragraph 7.722 identifies as incongruous is 
that: (i)  some of the SFE codes in Exhibit CRI -87 are not found  in Annex 9; (ii)  other SFE codes are 
given more than once in Exhibit CRI -87, and only once in Annex 9; (iii)  some codes in Exhibit CRI -
87 correspond to samples from 2014 in Annex 9, when the backyard sampling surveys, according 
to Costa Rica and Exhibit CRI -87, were carried out in 2015 -2019.  
6.113.  However, if by its comment Costa Rica was suggesting that the se were different records, and 
that Annex 9 on the 2014 -2019 surveys should not contain information on the backyard sampling 
surveys, then th is would aggravate the lack of traceability of the backyard sampling surveys, which 
would reinforce the Panel's conclusion with respect to the lack of evidence on the record to 
demonstrate that samples were taken from backyard trees.  
6.114.  In view of the foregoing, the Panel has left the wording of paragraph 7.722 unchanged. The 
Panel has inserted a footnote to clarify this paragraph.  
6.9.5   Paragraph 7.773  
6.115.  Costa Rica notes that, in paragraph 7.773, the Panel refers to the "memorandum on the 2019 
sampling survey", Exhibit CRI -21, and that this document mentions the forms contained in 
"R-03-LAB-LDP-BM-PO-08_Traceability form for the preparation and extraction of samples" and 
"LAB-LDP-BM-PT-06_Molecular detection of avocado sunblotch viroid (ASBVd)), w ith the consecutive 
numbers 2019 -18 through 2019 -30, 2019 -35, 2019 -36 and 2016 -38". Costa Rica asserts that this 
memorandum does not concern the traceability of samples in a broad sense, rather  it merely 
concerns the final report on the results of the labo ratory analyses conducted in 2019; and that the 
 
568 Secretaría de la CIPF, Vigilancia , NIMF No. 6 (Roma, FAO en nombre de la Secretaría de la CIPF , 
adoptada en 2018, publicada en 2019), accessed 8  January  2021, http://www.fao.org/3/w7991s/w7991s.pdf , 
p. 7. 
569 This is considering that Costa refers to this Annex as the report on the results of its specific surveys 
from 2014 to 2019.  WT/DS524/R  
- 100 - 
  information on the traceability of the samples in a broad sense is included in Annex 9 to Costa Rica's 
response to the Panel's information request.  
6.116.   Costa Rica adds that the "procedure LAB -LDP-BM-PT-06_Molecular detection of avocado 
sunblotch viroid (ASBVd)" is Exhibit CRI -12, and that, as is mentioned in Exhibit CRI -21, the "records 
and the data generated and stored on the equipment are available in the laboratory should they 
need to be consulted".570 Costa Rica claims that it provided the Panel with all the documents 
requested during the proceedings, such as Exhibits CRI -149 and CRI -150. Costa Rica adds that it 
did not provide the internal laboratory records because they were not requested and because  it 
considered the information in Annex 9 to be sufficiently detailed.  
6.117.  Mexico submits that, if Costa Rica failed to provide the internal laboratory records, this should 
not be subject to review or reconsideration by the Panel. Mexico asserts that a Member should 
provide information based on its claims, and that such information should be sufficient to 
demonstrate these claims. In Mexico's view, it is not the Panel's responsibility to advise a Member 
on its claims, the evidence it should submit during  proceedings, or the adjustments it could have 
made to suit its interests.  
6.118.  The Panel notes that paragraph 7.773 refers specifically to the assertion about traceability 
that appears in Exhibit CRI -21. The Panel has made an adjustment to the paragraph  to point out 
that its assertion concerns the laboratory analysis process of the 2019 sampling survey.  
6.119.  The Panel also notes that the same paragraph refers to the absence from the record of the 
form R -03-LAB-LDP-BM-PO-08_Traceability form for the pre paration and extraction of samples, and 
the forms with the consecutive numbers 2019 -18 through 2019 -30, 2019 -35, 2019 -36 and 2016 -38. 
The Panel has added a sentence to clarify that these documents were at no point incorporated into 
the record. The Panel do es not consider further changes to paragraph 7.773 to be necessary.  
6.120.  The Panel's observation of the fact that it did not find the forms in question in the record is 
part of its task of making an objective assessment of the facts. The Panel gave the p arties an 
opportunity to submit any additional information and supporting documentation relating to the 
ASBVd surveillance system in Costa Rica already in their possession. Costa Rica therefore had the 
opportunity to submit all the evidence it considered r elevant to its ASBVd surveillance system.  
6.121.  Moreover, the Panel never mentions that the procedure LAB -LDP-BM-PT-06_Molecular 
detection of avocado sunblotch viroid (ASBVd), contained in Exhibit CRI -12, is not in the record. In 
fact, the Panel refers to  this procedure in its analysis of Costa Rica's diagnostic procedures. The 
Panel also analyses Exhibits CRI -149, CRI -150 and Annex 9 in other paragraphs of its report. These 
exhibits bear no relation to the Panel's finding in paragraph 7.773 regarding the forms that do not 
appear in the record.  
6.9.6   Paragraph 7.824 of the Interim Report  
6.122.  Costa Rica considers the assertion in paragraph 7.824 of the Interim Report, that no 
document on the ASBVd detection protocol dating from before  2017 is in the reco rd, to be factually 
incorrect. Costa Rica points out that Exhibit MEX -115, dated 29  October  2014, expressly indicates 
that the Cellular and Molecular Biology Research Centre (CIBCM) of the University of Costa Rica 
(UCR) followed the protocol and recommenda tions of Agdia Inc. (Indiana, United  States ), and that 
in Exhibit MEX -134, dated 6  April 2015, the CIBCM of the UCR describes the protocol followed for 
the detection of ASBVd. Costa Rica adds that Memorandum LDP -003-16 (Annex 4 to Costa Rica's 
response to the Panel's information request), dated 27  January  2016, states that the methods 
available at the Pest Diagnostic Laboratory of the SFE were used, and offers a detailed description 
of the procedure followed in the case of ASBVd.  
6.123.  Costa Rica requests the Panel to incorporate into its analysis of Costa Rica's diagnostic 
procedures for ASBVd all exhibits in the record reflecting the procedure followed both by the UCR 
and the Pest Diagnostic Laboratory of the SFE for the detection of ASBVd, particularly t he exhibits 
mentioned above. Costa Rica further requests the Panel to review its conclusion that there is no 
 
570 Costa Rica's request for review of the Interim Report, para.  2.53 (citing Final report on the 2019 
sampling survey, (Exhibit CRI -21), p. 4).  WT/DS524/R  
- 101 - 
  evidence demonstrating that a diagnostic procedure existed prior to 2017, which affects the scientific 
legitimacy of the determination of absence o f ASBVd in Costa Rica based on the sampling surveys 
of 2014 and 2015 -2016.  
6.124.  Mexico requests the Panel to reject Costa Rica's request. Mexico considers the Panel to have 
conducted a careful analysis of the evidence referred to in Costa Rica's request for review, and it is 
therefore unnecessary to accept Costa Rica's proposal. Mexico adds that, in any case, even if the 
Panel agrees to include the documents to which Costa Rica refers, the determination of the absence 
of ASBVd in Costa Rican terri tory continues to lack scientific legitimacy for the reasons exhaustively 
presented by the Panel in its Interim Report.  
6.125.  The Panel observes that Exhibit MEX -115 contains a memorandum from the CIBCM of the 
UCR on the samples from the 2014 sampling survey, stating that the samples were prepared 
immediately and the RNA was spotted onto the membranes following the protocol and 
recommendations of Agdia Inc. (Indiana, United  States ). It is stated that the membranes were sent 
to Agdia Inc. for hy bridization with the ASBVd -specific probe, using the diagnostic services of Agdia 
Inc. 
6.126.  Exhibit MEX -134 contains a memorandum from the CIBCM of the UCR regarding the samples 
that tested positive or inconclusive following the analysis carried out by A gdia Inc. The memorandum 
states that total RNA was extracted from the samples submitted by SFE officials using liquid nitrogen 
and the RNeasy Plant Mini Kit (QIAGEN) in accordance with the manufacturer's recommendations, 
and that the positive control RNA w as obtained from ASBVd -infected avocado leaves kept in its 
freezer at -70°C. The memorandum also states that the reverse transcription (RT) and the 
polymerase chain reaction (PCR) were carried out using the protocols and the pair of viroid -specific 
ASBV1 a nd ASBV2 primers designed by Schnell et al. (Plant Dis. 81:1023 -1026, 1997); and that the 
RT was carried out using the Sensiscript RT Kit (QIAGEN) and the ASBV1 primer. It adds that the 
RT-PCR product was analysed in agarose gel. It further states that all  amplification products obtained 
were sent to Macrogen Korea to be purified and sequenced directly, and that the sequences obtained 
for each of the avocado samples were compared using the BLASTn algorithm with the sequences 
available in the GenBank.  
6.127.  Based on the information contained in Exhibits MEX -115 and MEX -134 relating to the evidence 
gathered in 2014, the first sampling survey was conducted with the support of the CIBCM of the 
UCR, using the diagnostic services of Agdia Inc (Indiana, United  States) and Macrogen Inc. (Korea). 
The record contains no further information regarding the recommendations of Agdia Inc., or the 
diagnostic protocols of Agdia Inc. (Indiana, United  States ) and Macrogen Inc. (Korea), and the 
methodology applied by the CIBCM o f the UCR is presented as a recount together with the 
presentation of the results. Costa Rica's response to the Panel's information request of 
3 August  2020 provides some explanation of the CIBCM's methods.571 
6.128.  Annex 4 to Costa Rica's response to the Panel's information request contains a memorandum 
from the Pest Diagnostic Laboratory of the SFE concerning 151 of the 244 samples from the 
2015-2016 sampling survey. The memorandum states that the samples were analysed in the 
Molecular Biology Section of the Pest Diagnostic Laboratory of the SFE, and that the RT -PCR 
technique was used to determine the presence/absence of the viroid in the samples. It indicates that 
the methods available at the laboratory were used, and it describes the application of the m ethods 
to the samples in question.572 
6.129.  Annex 12 contains a CIBCM memorandum describing the diagnostic process for the other 
177 samples from the 2015 -2016 sampling survey. As in the CIBCM memorandum of 2014 
 
571 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 23 -24. 
572 It states: RNA was extracted using the Maxwell 16 MDx Instrument together with the Maxwell 16 LEV 
Plant RNA Kit (Promega AS1430). The "RNasin Plus RNase I nhibitor" (Promega, N2611) was added to the RNA 
extracts. The quantity and quality of the genomic RNA extracts obtained were verified using 
spectrophotometry. The reverse transcription was carried out using the "Maxima First Strand cDNA Synthesis 
Kit for R T-qPCR" (Thermo Scientific, K1642), and specific primers developed by Schnell et al., 1997 and Taq 
DNA recombinant (Thermo Scientific, EP0402) were used for the PCR. In addition, a real -time PCR was 
conducted on the cDNA from all the samples to amplify the  plant cytochrome oxidase (COX), according to Li et 
al., 2006, which functions as an internal control. … One positive control and one blank control (a no template 
control (NTC)) were included at each stage of the process (RNA extraction, RT and PCR) and fo r each batch. 
(Costa Rica's response to the Panel's information request of 3  August  2020, Annex 4, p. 2).  WT/DS524/R  
- 102 - 
  (Exhibit  MEX-134), this memorandum describes  how total RNA was extracted from the samples, 
how the RT and PCR were carried out, and how the RT -PCR product was analysed. The description 
is similar to that of the diagnostic process for the 25 inconclusive samples from 2014 in 
Exhibit  MEX-134, the only  difference being that another kit was used for the RT.  
6.130.  Based on the information in Annexes 4 and 12 relating to the evidence gathered in 
2015-2016, the Panel notes that the CIBCM of the UCR provided support for 177 of the samples, 
and that the rema ining 151 were analysed by the Pest Diagnostic Laboratory of the SFE. Regarding 
the analysis by the CIBCM of the UCR, as in 2014, no protocol is presented, and the methodology 
applied by the CIBCM of the UCR is presented as a recount together with the pres entation of the 
results. With regard to the Pest Diagnostic Laboratory of the SFE, the methodology applied is also 
set out as a recount together with the presentation of the results, but the record contains no 
diagnostic protocol for ASBVd applicable in 20 15-2016 giving instructions on the methodology to 
follow when conducting the diagnostic test for ASBVd.  
6.131.  In light of the foregoing, the Panel has inserted paragraphs 7.829 through 7.837, setting out 
the statements in the above paragraphs regarding Ex hibits MEX -115 and MEX -134, and Annexes  4 
and 12 of Costa Rica's response to the Panel's information request. The Panel has adjusted its 
conclusion on this point.  
6.9.7   Paragraph 7.844  
6.132.  Mexico requests the Panel to conduct a review of Exhibit MEX -221, Comparison of the ASBVd 
sampling protocols of Mexico and Costa Rica (2019), cited in paragraph 7.844, since this exhibit is 
a technical opinion by Mexico's NPPO, namely the Directorate General of Plant Health of the National 
Health, Food Safety and Agri -food Quality Service (SENASICA) under the Ministry of Agriculture and 
Rural Development, which has technical and scientific legitimacy to issue opinions of this kind. 
Mexico states that it understands the Panel's limitations in that it is not responsible for evaluating 
Costa Rica's ASBVd diagnostic protocol, and that this exhibit's very purpose is to demonstrate that 
Costa Rica's protocol is unreliable, since obtaining an objective analysis of ASBVd would depend on 
aspects such as the type of sample, verif ication of the quality and quantity of RNA, the method for 
verifying RNA integrity, and the diagnostic techniques carried out by a laboratory.  
6.133.  Costa Rica submits that the Panel examined Exhibit MEX -221 and this is expressly reflected 
in its report. In Costa Rica's view, it is normal for Members to have different protocols, and it cannot 
therefore be concluded that a diagnostic protocol is in viol ation of WTO rules because it differs from 
another. Costa Rica adds that the Panel did evaluate and consider the exhibit to which Mexico refers, 
and arrived at a reasoned conclusion thereon.  
6.134.  In order to reflect the description of Exhibit MEX -221 mor e accurately, the Panel has indicated 
in paragraph 7.844 that a technical opinion issued by SENASICA is presented in the exhibit. However, 
although it is a technical opinion issued by Mexico's NPPO, it is still a comparison between the ASBVd 
diagnostic pro tocols of Mexico and Costa Rica. The Panel has maintained its conclusion that it does 
not consider that Mexico has shown, based on scientific evidence, and not merely by comparison 
with its own protocol, that Costa Rica's diagnostic protocol is not legitim ately scientific. The Panel 
has made a minor adjustment to paragraph 7.844.  
6.10  Request for review concerning spontaneous germination in Reports ARP -002-2017 
and ARP -006-2016  
6.135.  Costa Rica notes that in paragraphs 7.1142 and 7.1143 the Panel refers t o Costa Rica's efforts 
to document the occurrence of spontaneous germination and that these efforts appear to be a step 
in the right direction. However, Costa Rica adds that the Panel mentions that the evidence provided 
remains insufficient to document spo ntaneous germination due to the lack of a systematic, 
disciplined and objective investigation and analysis. Costa Rica requests further guidance on this 
matter from the Panel, and states that it would be particularly important for the Panel to explain in 
detail what type of documents would be sufficient and what type of systematic investigation and 
analysis Costa Rica should carry out to document spontaneous germination.  WT/DS524/R  
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  6.136.  Mexico requests the Panel to reject Costa Rica's request. Mexico does not consid er it to be 
the Panel's responsibility to tell a Member how to fulfil its obligations, and that Costa Rica's requests 
in this respect seem to disregard the role of panels.  
6.137.  The Panel indicated that Costa Rica's efforts appear to be a step in the righ t direction in order 
to note that Costa Rica has sought to gather further information on spontaneous germination 
subsequent to  Reports ARP -002-2017 and ARP -006-2016.  
6.138.  In section 7.4.5.3.3.9, the Panel details the sources cited in support of the state ments 
regarding spontaneous germination in Reports ARP -002-2017 and ARP -006-2016. In section 
7.4.5.3.3.10, the Panel details all documents provided by Costa Rica during the proceedings which 
are not included in the reports. In both cases, the Panel explain s in detail how it reached its 
conclusions relating to the insufficiency of scientific evidence for the occurrence of spontaneous 
germination in Costa Rica.  
6.139.  The Panel notes that, in accordance with Article  15.2 of the DSU, within the interim review 
stage "a party may submit a written request for the panel to review precise aspects of the interim 
report prior to circulation of the final report to the Members". In its report, the Panel has not made 
any suggestion as to how Costa Rica could fulfil its o bligations under Article  5.1 of the 
SPS Agreement . During the proceedings, none of the parties requested the Panel to exercise its 
authority under Article  19.1 of the DSU to suggest ways in which the Member concerned could bring 
its measure into conformity  with the SPS  Agreement . This has therefore not been part of the 
discussion between the parties during the proceedings. The interim review is not the appropriate 
procedural stage at which to request the Panel to exercise its authority to suggest ways in wh ich 
Costa Rica could bring its measure into conformity with the SPS  Agreement  with regard to this aspect 
in particular.  
6.140.  As a guide, the Panel refers to the Appellate Body's statement with respect to the obligation 
under Article  2.2 of the SPS  Agreem ent (of which Article  5.1 is viewed as a specific application) that 
an SPS measure not be maintained without sufficient scientific evidence. The Appellate Body in 
Japan – Agricultural Products II  considered "sufficient" to mean "of a quantity, extent, or s cope 
adequate to a certain purpose or object", and that, accordingly, "'sufficiency' is a relational concept. 
'Sufficiency' requires the existence of a sufficient or adequate relationship between two elements, 
in casu, between the SPS measure and the scien tific evidence".573 The Appellate Body stated that 
Article  2.2 requires that there be a rational or objective relationship between the SPS measure and 
the scientific evidence, and that whether there is such a relationship will depend upon the particular 
circumstances of the case, including the characteristics of the measure at issue and the quality and 
quantity of the scientific evidence.574 Thus, the evidence has to be sufficient to support a rational 
and objective relationship between the SPS measure in question and the scientific evidence.  
6.141.  In light of the foregoing, the Panel does not consider it appropriate to provide the explanations 
requested by Costa Rica. However, in order to further clarify its conclusion in paragraph  7.1143, the 
Panel has replaced the phrase "while these efforts by Costa Rica appear to be a step in the right 
direction" with "while Costa Rica has sought to gather further information on spontaneous 
germination subsequent to  Reports ARP -002-2017 and ARP -006-2016".  
6.11  Request for review concerning the evaluation of the likelihood of entry  
6.11.1   Paragraph 7.1202  
6.142.  With regard to paragraph 7.1202, Mexico notes that the Panel concludes that there is no 
information indicating that Mexico would have helped Costa Rica to gather more information on the 
presence of ASBVd in Mexico. Mexico submits that the Panel failed to take into account the 
information provided by Mexico, specifically in its response to Panel question No.  59, in which it 
notes the occasions o n which it has shared information with Costa Rica. According to Mexico, this 
includes Exhibits MEX -9, MEX -10, MEX -11, MEX -12, MEX -18, MEX -138, and MEX -201. Mexico claims 
that these exhibits show that, since 2015, there has been a diplomatic and technical e xchange 
between the SFE and SENASICA; and that it shared information with Costa Rica during the reviews 
 
573 Appellate Body Report, Japan – Agricultural Products II , para.  73. 
574 Appellate Body Report, Japan – Agricultural Products II , para.  84 (citing Panel  Report , Japan – 
Agricultural Products II , para.  8.29 and 8.42).  WT/DS524/R  
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  of the measures subject to consultations under the Single FTA and during the consultation period 
before the DSB of the WTO.  
6.143.  Costa Rica submits th at Mexico did not offer, either in its response to Panel question No.  59 
or in the five exhibits mentioned, any information on the prevalence of ASBVd in its territory that 
Costa Rica could have used in its risk assessment. According to Costa Rica, the doc uments in 
question contain Mexico's assessment of the phytosanitary situation in Costa Rica and the measures 
it has taken, but no information on the prevalence of ASBVd in Mexico.  
6.144.  The Panel notes that, in response to Panel question No.  59 on the inf ormation provided by 
Mexico to Costa Rica for the preparation of the risk analysis, Mexico cites Exhibits MEX -201, MEX -138 
and MEX -18. In its request for review of paragraph 7.1202, Mexico also includes Exhibits MEX -9, 
MEX-10, MEX -11 and MEX -12. With regar d to all these exhibits, the Panel notes the following:  
a. In Exhibit MEX -9, which contains the minutes of the bilateral meeting between Mexico and 
Costa Rica, Mexico mentions the presence of ASBVd in Mexico and that ASBVd has not 
been detected in consignm ents of avocados from Mexico to Costa Rica, without further 
details.  
b. Exhibits MEX -10 and MEX -12 contain letters regarding consultations within the framework 
of the Single FTA, with logistical information.  
c. Exhibit MEX -11 contains Mexico's questions fo r Costa Rica.  
d. Exhibit MEX -18, a background overview by Mexico of the measures applied by Costa Rica, 
does not contain any specific information on the presence and/or distribution of ASBVd in 
Mexico, and dates from 2019, which is after Reports ARP -002-2017 and ARP -006-2016.  
e. Exhibit MEX -138 contains the technical report of a visit to Mexico by an SFE official from 
Costa Rica. The report states that the official toured avocado plantations looking for 
symptoms of ASBVd, but did not find any, or noted that  the sporadic cases of defoliation 
and yellowing leaves at one of the plantations could only be verified in a laboratory. The 
report indicates that the owner of a packing plant claimed that he had seen fruit with 
symptoms in the field but that fruit with t hese symptoms rarely arrived at the packing 
plant. The document states that there are no official surveys determining areas where 
ASBVd is present in Mexico.  
f. Exhibit MEX -201 is a communication in which it is claimed that Mexico would have no 
objection t o sending Costa Rica information with which to conduct the PRA procedure, 
after completion of the documentation procedure of the emergency measure, as well as 
the documentation stating that Costa Rica is free of ASBVd. The communication contains 
no further  information.  
6.145.  In its request for review, Mexico makes no reference to specific information regarding the 
presence and/or distribution of ASBVd in Mexico, and no such information can be found in the 
exhibits identified by Mexico. In light of the fore going, the Panel does not consider it appropriate to 
amend paragraph 7.1202. However, the Panel has added footnote 2166 to paragraph 7.1202 
describing the content of Exhibits MEX -18, MEX -138 and MEX -201 as cited by Mexico in response to 
Panel question No.  59. 
6.11.2   Paragraph 7.1221  
6.146.  Costa Rica notes that, in paragraph 7.1221, the Panel enquires as to the scientific basis for 
Costa Rica's assertion that "[t]his viroid is systemic in the tissues of the plant (Ploetz et al. 2011), 
so as long as the pla nt tissues are in a good condition, the pest will remain infectious". Costa Rica 
adds that this matter is of utmost importance because, as it remains active, the seed may transmit 
the viroid.575 
 
575 Costa Rica's request for review of the Interim Report, para.  2.59 (citing Costa Rica's first written 
submission, paras.  5.125 and 5.135).  WT/DS524/R  
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  6.147.  Costa Rica considers the second statement mentioned in paragraph 7.1221 (as long as the 
plant tissues are in a good condition, the pest will remain infectious) to be a logical consequence of 
the first (that the viroid is systemic in the tissues of the plan t), particularly in light of the definition 
of a viroid and its systemic nature. Costa Rica states that the expert Fernando Pliego Alfaro explained 
that a pest is "systemic" when "it is inside the plant, in the plant's vascular bundle, and it therefore 
moves inside the plant, from one site to another" and is "very different, for example, from … a fly 
or … a mite that goes on the outside of the fruit", and that "[i]t is as if it were in our blood, right? 
and it goes all over the body. Well, it is the same th ing. That is what 'systemic' means".576 
6.148.  Costa Rica submits that the fact the pest in this case is a systemic viroid means that it is 
found in all the plant's tissues, and, therefore, the tissues of an infected fruit will remain infected 
unless they a re damaged, thereby also threatening the survival of the viroid. Costa Rica notes that 
the expert Pablo Cortese points out that "[t]he pathogen can remain in the fruit as long as the fruit's 
tissues are in good condition. The systemic characteristic is to do with its distribution within the 
plant".577 Thus, according to Costa Rica, "[i]f transported or stored for too long or the conditions are 
inadequate, the integrity of the fruit's tissues, and therefore the pathogen's survival, may be 
affected".578 
6.149.  Costa Rica requests the Panel to review the wording of paragraph 7.1221, considering that 
the second statement in question is a logical consequence of the first.  
6.150.  Mexico points out that the Panel stresses the need for a scientific link between the se ntence 
"[t]his viroid is systemic in the tissues of the plant (Ploetz et al. 2011)" and the statement that "as 
long as the plant tissues are in a good condition, the pest will remain infectious". Mexico submits 
that it is not enough for the second statemen t to be a "logical consequence" of the first reference 
because, for the purposes of the SPS  Agreement , the reasoning of the risk assessor must be 
coherent, objective and based on scientific evidence. Mexico adds that the second statement lacks 
scientific e vidence substantiating it, and that it is applied inconsistently since there is no link between 
the two statements and no reasoning by Costa Rica's risk analyst. Mexico adds that Robert Griffin 
highlighted the importance of the assessment that the analyst must carry out with respect to the 
scientific evidence, which, according to Mexico, is not reflected in the PRAs under analysis. Mexico 
does not believe that the modification requested by Costa Rica should be made.  
6.151  The Panel observes that, in the com ment cited by Costa Rica, Fernando Pliego Alfaro explains 
what it is meant when referring to ASBVd as a viroid that is found systemically in the avocado plant, 
indicating that "systemic" means that it is inside the plant and that it moves within the plant.  This 
does not confirm that the second statement in question ("as long as the plant tissues are in a good 
condition, the pest will remain infectious") is a logical consequence of the first ("[t]his viroid is 
systemic in the tissues of the plant").  
6.152.  Furthermore, the Panel notes that Pablo Cortese's comments highlighted by Costa Rica also 
do not confirm that the second statement in question is a logical consequence of the first. 
Mr Cortese's first comment concerns the question whether there is a correla tion between the 
systemic distribution of the pest and its capacity to remain in a life stage that would be associated 
with commodities, containers or conveyances. The expert explains that the pathogen can remain in 
the fruit as long as the fruit's tissues  are in good condition, and that the systemic characteristic is 
to do with its distribution within the plant. The expert does not make the connection asserted 
by Costa Rica.  
6.153.  Mr Cortese's second comment that "[i]f transported or stored for too long o r the conditions 
are inadequate, the integrity of the fruit's tissues, and therefore the pathogen's survival, may be 
affected" stems from his response in relation to the assertion in Reports  ARP-002-2017 and 
ARP-006-2016 that "[t]he speed and conditions of  transport and duration of the life cycle of the pest 
in relation to time in transport and storage have no effect on the survival (infectivity) of the pest".579 
 
576 Costa Rica's request for review of the Interim Report, para.  2.61 (citing Fernando Pliego Alfaro, 
transcript of the Panel's meeting with the parties and the experts, day 4, pp. 7 -8). 
577 Costa Rica's request for review of the Interim Report, para.  2.62 (cit ing Pablo Cortese's response to 
Panel question No.  48(a) for the experts).  
578 Costa Rica's request for review of the Interim Report, para.  2.62 (citing Pablo Cortese's response to 
Panel question No.  49(a) for the experts).  
579 ARP-002-2017, (Exhibit MEX-84), p. 35; ARP -006-2016, (Exhibit MEX -85), p. 16.  WT/DS524/R  
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  The expert comments that he "[p]artially agrees", and that "this will depend on the pathogen's 
survival in the fruit", before adding that "[i]f transported or stored for too long or the conditions are 
inadequate, the integrity of the fruit's tissues, and therefore the pathogen's survival, may be 
affected".580 The Panel also notes that, by adding " thus", Costa Rica has made a link between Mr 
Cortese's comments that he does not make.  
6.154.  Furthermore, regarding whether there is any correlation between the systemic distribution of 
the pest and its ability to survive during transport, Pablo Cortese states "not directly; the ability to 
survive in transit is linked to the pathogen remaining in the fruit", and the virology expert, Ricardo 
Flores Pedauyé, does not believe that there is.581 Fernando Pliego Alfaro states that there is, "the 
pest sur vives more easily because it is systemic and is inside the tissue".582 
6.155.  In the Panel's view, the experts' explanations show that there is some discussion on the 
matter, but not that the second statement in question is a logical consequence of the firs t, and they 
confirm the need for scientific evidence and for an explanation of this element of the risk assessment 
in question.  
6.156.  In any event, the experts' testimony during the proceedings are not tantamount to evidence 
or explanations in Reports ARP -002-2017 and ARP -006-2016. The experts' testimony during these 
proceedings cannot make up for the lack of scientific evidence and the absence of the risk assessor's 
reasoning in the risk assessment contained in said reports. Without any explanation given in Reports 
ARP-002-2017 and ARP -006-2016, it is unclear why the second statement would be a logical 
consequence of the first.583 
6.157.  In light of the foregoing, the Panel has decided to leave paragraph 7.1221 unchanged.  
6.11.3   Paragraph 7.1226  
6.158.  Costa Rica requests the Panel to reconsider the statement in paragraph 7.1226 that "there 
is no explanation under this point of the connection between the viability and germination of avocado 
seeds and the survival of ASBVd in fresh avocado fruit during comme rcial procedures", in light of 
the relevant factual elements in the record. Costa Rica notes that: (i)  the cited sources, for instance, 
Wutscher and Maxwell (1969) and Spalding et al.  (1976) confirm that the seed is viable after 
commercial procedures584; (ii) the experts confirm that "in standard transport and storage conditions 
of 5°C or 7°C, there is no reason to think that the seed will lose its viability"585; (iii)  ASBVd is a 
viroid that is found systemically in the fruit, and "[b]eing a systemic pest, it  is found in the plants' 
tissues [including the seed] and it can, therefore, survive during commercial procedures"586; and, 
(iv) it is therefore logical to say that commercial procedures do not affect the viability (germination 
capacity) of a seed infected with ASBVd.  
6.159.  Costa Rica considers that the connection between viability and germination of avocado seeds 
and the survival of ASBVd in fresh avocado fruit during commercial procedures can be seen from 
Costa Rica's risk assessments. Costa Rica requests the Panel to review this matter accordingly.  
 
580 Pablo Cortese's response to Panel question No.  49(a) for the experts.  
581 Responses of Pablo Cortese and Ricardo Flores Pedauyé to Panel question No.  48(b) for the experts.  
582 Fernando Pliego Alfaro's r esponse to Panel question No.  48(b) for the experts.  
583 The Panel recalls that the same question regarding the correlation between the statement about the 
systemic nature of the pest, and the statement that as long as the plant tissues are in a good conditi on, the 
pest will remain infectious, arises in relation to two parts of Reports ARP -002-2017 and ARP -006-2016 (the 
speed and conditions of transport and duration of the life cycle of the pest in relation to time in transport and 
storage; and the vulnerabil ity of the life stages during transport or storage). As  the Panel explains in section 7 
of this R eport, neither of the two parts contain any substantiation or explanation of the correlation claimed.  
584 Costa Rica's request for review of the Interim Report, para. 2.65 (citing Costa  Rica, first written 
submission, para.  5.115, citing in turn Wutscher and Maxwell  (1969),  (Exhibit MEX -132); and Spalding et al. 
(1976),  (Exhibit MEX -133); second written submission, para.  3.35, citing in turn Wutscher and Maxwell  (1969),  
(Exhibit MEX -132); and Spalding et al. (1976),  (Exhibit MEX -133)). 
585 Costa Rica's request for review of the Interim Report, para.  2.65 (citing Fernando Pliego Alfaro, 
transcript of the Panel's meeting with the parties and the experts, day 1, p. 57). 
586 Costa Rica's request for review of the Interim Report, para.  2.65 (citing Fernando Pliego Alfaro's 
response to Panel question No.  50 for the experts).  WT/DS524/R  
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  6.160.  Mexico requests the Panel to reject Costa Rica's request, since, in Mexico's view, the Panel 
assessed objectively the exhibits cited by Costa Rica, and its determination in paragraph 7.1226 is 
appropriate.  
6.161.  Mexico adds that the exhibits cited by Costa Rica do not apply to this situation because: 
(i) the reference to Wutscher and Maxwell (1969) should not be taken as definitive, as it is a study 
that concerns avocados of the Lula variety, not  Hass, which is the variety that Costa Rica imports 
from Mexico, and Costa Rica has failed to demonstrate with scientific evidence that these same 
conclusions can be extended to the Hass variety; (ii)  the bibliographic reference to Spalding et al. 
(1976) s hould also not be taken as definitive, since it is a study that concerns avocados of the Lula 
variety, and not Hass; (iii)  Costa Rica's rationale with regard to its climatic conditions and the 
temperature for transport and storage was a circumstance discus sed at the meeting with the experts, 
it is therefore for the Panel to determine the weight of each of the pieces of evidence; and (iv)  the 
fact that ASBVd is a viroid that is found systemically in the fruit does not explain the connection 
between the viabi lity and germination of the avocado seed and the survival of ASBVd in fresh 
avocado fruit during commercial procedures.  
6.162.  The Panel observes that, in paragraphs 7.1224 -7.1226, it analyses the content of the element 
of commercial procedures (for exampl e, refrigeration) applied to consignments in the country of 
origin, country of destination, or in transport or storage in Reports ARP -002-2017 and ARP -006-
2016, including the cited scientific evidence.  
6.163.  On Costa Rica's first point, the Panel addresse s in paragraph 7.1226 the cited sources 
(Wutscher and Maxwell (1969) and Spalding et al. (1976)), noting that studies on the viability and 
germination of seeds are cited; that the cited studies on the viability and germination of seeds 
subjected to differe nt temperatures are relevant to avocados and constitute respected scientific 
sources; but that, nevertheless, under the point being analysed, there is no explanation of the 
connection between the viability and germination of avocado seeds and the survival of ASBVd in 
fresh avocado fruit during commercial procedures.  
6.164.  The conclusion that Costa Rica asks the Panel to review has nothing to do with whether the 
studies corroborate or not that seeds are viable following commercial procedures. Rather, it con cerns 
the absence of an explanation of the connection between the viability and germination of avocado 
seeds and the survival of ASBVd in fresh avocado fruit during commercial procedures.  
6.165.  Having noted the absence of an explanation in Reports ARP -002-2017 and ARP -006-2016 of 
the connection between the viability and germination of avocado seeds and the survival of ASBVd in 
fresh avocado fruit during commercial procedures, the Panel adds that the studies cited are limited 
to the Lula variety, and one re fers to the storage of seeds in polyethylene bags. The Panel addresses 
this matter in its analysis of the next request for review.  
6.166.  With regard to Costa Rica's second and third points, the Panel reiterates that the experts' 
testimony (in this instanc e, that of Fernando Pliego Alfaro) during the proceedings are not 
tantamount to evidence or explanations in Reports ARP -002-2017 and ARP -006-2016; and that the 
experts' testimony during these proceedings cannot make up for the lack of scientific evidence a nd 
the absence of the risk assessor's reasoning in the risk assessment contained in said reports.  
6.167.  Moreover, as the Panel points out in paragraph 7.1224, Costa Rica uses the statement that 
the pest is systemic in the plant tissue, citing Ploetz et al. (2011), without explaining the connection 
between this statement and the statement that "[t]he pest is unaffected by commercial procedures".  
6.168.  With regard to Costa Rica's fourth point, without any explanation given in 
Reports  ARP-002-2017 and ARP -006-2016, it is unclear why it is logical to assert, as Costa Rica 
submits, that commercial procedures do not affect the viability (germination capacity) of a seed 
infected with ASBVd.  
6.169.  In view of the foregoing, the Panel does not consider it appropriate to modify its statement 
that there is no explanation under this point of the connection between the viability and germination 
of avocado seeds and the survival of ASBVd in fresh avocado fruit during commercial procedures. 
The Panel has added in  paragraph 7.1225 the language of Reports  ARP-002-2017 and ARP -006-2016 
in more detail.  WT/DS524/R  
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  6.11.4   Paragraphs 7.1226 and 7.1239  
6.170.  Costa Rica notes that, in reviewing the studies addressed in paragraphs 7.1226 and 7.1239, 
the Panel emphasizes that "the st udies cited are limited to the Lula variety" in paragraph 7.1226, 
and that the "source refers specifically to nurseries" in paragraph 7.1239. For Costa Rica, it is 
understandable that there will not always be studies on the exact issue being addressed by a  risk 
assessment. Costa Rica asserts that this does not mean, however, that studies on very similar issues 
cannot be taken into consideration. Costa Rica requests further explanation from the Panel on the 
value that it assigns to the studies mentioned in i ts analysis and on what Costa Rica describes as 
the possibility, or not, that Members have to take into consideration studies on very similar (although 
distinct) issues to those addressed in a risk assessment.  
6.171.  Mexico considers that the Panel should reject Costa Rica's request, since it is for the Panel 
alone to decide which evidence it selects in its determination; and points out that the Panel is not 
required to attribute to the exhibits the same meaning and weight that the parties do. Mexico 
submit s that, based on the avocado's characteristics, Costa Rica should have taken the precaution 
of analysing the extent to which a study carried out for the Lula variety may be applicable to the 
Hass variety. According to Mexico, Costa Rica has failed to demon strate with scientific evidence that 
the conclusions with respect to the Lula variety are equally applicable to the Hass variety.  
6.172.  Regarding the studies on the Lula variety, the Panel observes that in paragraph 7.1226, 
having noted the absence of an explanation in the reports of the connection between the viability 
and germination of avocado seeds and the survival of ASBVd in fresh avocado fruit during 
commercial procedures, the Panel adds that the studies cited are limited to the Lula variety, and on e 
refers to the storage of seeds in polyethylene bags.  
6.173.  The Panel would like to point out that these sources refer respectively to a study of Lula 
variety avocados exposed to sub -freezing temperatures in a freeze chamber587 and a study on the 
germination capacity of seeds from Florida -grown Lula avocados after being stored in perforated and 
non-perforated polyethylene  bags, and in plastic mesh bags for several months in a chamber.588 
Moreover, the second study explicitly conc ludes that additional information is needed to show the 
effectiveness of the storage procedure with seeds of other Florida avocado cultivars stored for up to 
a year under both laboratory and commercial conditions.589 
6.174.  The Panel understands that data m ay be extrapolated in risk assessments if that extrapolation 
is justified on the basis of an analysis of the applicability of the data to the specific case. In Reports 
ARP-002-2017 and ARP -006-2016, the risk assessor extrapolates the information from Wutsc her 
and Maxwell (1969) and Spalding et al.  (1976) on the Lula variety without any analysis or 
explanation justifying that the information on the Lula variety, taken from studies carried out under 
controlled conditions, can be extrapolated to the particular  situation of Hass avocados imported for 
consumption.  
6.175.  The Panel has adjusted paragraph 7.1226, in order to further clarify its comment with respect 
to the use of studies on the Lula variety in Reports ARP -002-2017 and ARP -006-2016.  
6.176.  With regar d to the study on nurseries, the Panel has already explained in paragraph 7.1239 
that, in Reports ARP -002-2017 and ARP -006-2016, it is stated that the generation of rootstock from 
infected fruit trees (including those of the Hass cultivar) can significantl y increase the incidence of 
ASBVd citing Vallejo Pérez et al.  (2017); that although this assertion is found in that source, the 
source refers specifically to nurseries; and that it is not explained in Costa Rica's risk assessments 
why the assertion on the significant increase in the incidence of ASBVd is used in the context of a 
fruit imported for consumption, when the statement in the source refers to plants in nurseries, where 
the magnitude of the spread would be different. This is because the purpose of a nursery is the 
production of plants. The Panel has added this last sentence to paragraph 7.1239.  
 
587 Wutscher and Maxwell  (1969),  (Exhibit MEX -132). 
588 Spalding et al. (1976), (Exhibit MEX -133). 
589 Spalding et al. (1976), (Exhibit MEX -133), p. 258.  WT/DS524/R  
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  6.11.5   Paragraph 7.1228  
6.177.  Costa Rica notes that the Panel observes in paragraph 7.1228 that the scientific conclusions 
on the different elements of this factor, i.e. that ASBVd survives in avocados for consumption during 
the transport and storage of this fruit (if the avocado fruit stays alive and if ASBVd is present in the 
transported fruit), appear to be supported by the virology expert,  Ricardo Flores Pedauyé. Costa  Rica 
points out, however, that the Panel considers that the conclusions are not sufficiently documented 
or explained in Reports ARP -002-2017 and ARP -006-2016. Costa Rica notes that this finding is 
unclear, and requests the Pa nel to elaborate on it. Costa Rica states that it would be of great 
importance for the Panel to describe in detail what type of documents and explanations would be 
sufficient to document and explain scientific matters that are supported by the Panel's expe rts. 
6.178.  Mexico submits that it is not for the Panel to carry out the analysis requested by Costa Rica, 
and that the Panel's role is limited to understanding how these conclusions on probabilities were 
reached. In Mexico's view, it is therefore clear th at the evidence and arguments submitted by 
Costa  Rica are insufficient. Mexico adds the Panel's analysis in the aforementioned paragraph 
focuses on determining whether the PRAs have scientific information that supports their conclusions. 
According to Mexic o, most of Costa Rica's comments focus on asking the Panel to reconsider its 
conclusions taking into account evidence produced ex post facto  in the context of the proceedings 
and that is not mentioned in the PRAs, as well as the experts' comments. Mexico s tates that it is for 
the Panel to decide the weight to be given to the evidence submitted by the parties.  
6.179.  The Panel observes that the experts help the Panel to gain  a better understanding of the 
scientific and technical issues in the dispute. The pu rpose of a panel consulting with experts is not 
to perform its own risk assessment.590 As the Panel points out in the report, it is the WTO Member's 
task to perform the risk assessment. The panel's task it to review the risk assessment, and, in 
particular, whether that risk assessment is supported by coherent reasoning and respectable 
scientific evidence.  
6.180.  Accordingly, a panel's task is not to make up for, in consultation with experts, the lack of 
expert judgement, scientific evidence and/or explanatio ns in the risk assessment on which the SPS 
measures in question are supposed to be based. The Panel reiterates that the experts' testimony 
during the proceedings are not tantamount to evidence or explanations in Reports ARP -002-2017 
and ARP -006-2016. The e xperts' testimony during these proceedings cannot make up for the lack 
of scientific evidence and the absence of the risk assessor's reasoning in the risk assessment 
contained in said reports.  
6.181.  Moreover, the Panel found that the conclusions are not s ufficiently documented or explained 
in Reports ARP -002-2017 and ARP -006-2016, having analysed in detail in paragraphs 7.1215 
through 7.1227 the factor on the probability of survival during transport or storage addressed in 
said reports. Therefore, the expl anation that Costa Rica requests on this finding is in the 
Panel  Report . The Panel also refers to paragraph 6.140 above with respect to the sufficiency of 
evidence.  
6.182.  The Panel has made some adjustments to paragraph 7.1228 to reflect the points made i n the 
preceding paragraphs.  
6.11.6   Paragraph 7.1246  
6.183.  Costa Rica submits that the Panel mentions in paragraph 7.1246 that there is no explanation 
in Costa Rica's risk assessments that associates the high degree of transmission through 
symptomless see ds with the introduction of ASBVd in the PRA area even though this topic is 
discussed in the datasheet for the risk assessment.  
6.184.  Costa Rica asserts that the datasheet is an essential part of Costa Rica's risk assessments, 
and that, as can be seen fro m Manual NR -ARP-PO-01_M -01, in particular, "FORMATO PARA 
ELABORAR ARP POR PLAGA" (form to prepare PRA for a pest), a risk assessment is "carried out to 
determine the quarantine risk for the importation of 'common name' for 'class' (scientific name) of 
 
590 Appellate Body Reports, US/Canada – Continued Suspension , para.  592. WT/DS524/R  
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  'country' and on the basis of datasheet (datasheet reference)".591 According to Costa Rica, therefore, 
its risk assessments must be read together  with the datasheets in question.  
6.185.  Costa Rica requests the Panel to review paragraph 7.1246 on the basis of a joint reading of 
the risk assessments and the ASBVd datasheet, where, according to Costa Rica, it did highlight that 
transmission through the seed of symptomless fruit is very high.  
6.186.  Mexico requests that the Panel reject Costa Rica's request, given that nowhere in that 
paragraph, or in the Interim Report as a whole, does the Panel deny that the datasheet has been 
used in the risk assessments. Mexico adds that each of the assert ions in the risk assessment must 
be supported by scientific evidence, and that there must be elements that shed light on how 
Costa  Rica's risk analyst reached the conclusion set out in each of the reports.  
6.187.  Mexico submits that the Panel cannot base i ts analysis on assumptions that a particular 
conclusion was substantiated by a source cited in the PRA, but which was not referenced in the 
specific conclusion of the risk assessment. Mexico adds that the assertion that there is a high 
probability must in turn be demonstrated on specific scientific bases and not only by categorial and 
general references.  
6.188  The Panel states in paragraph 7.1244 that, under the element of risks from by -products and 
waste, Reports ARP -002-2017 and ARP -006-2016 indicate that  the waste of fresh avocado fruit are 
the skins and seeds; that, as it contains a viable seed, there is a risk of pest introduction through 
the waste; and that the germination of a seed from a symptomless fruit would introduce the pest 
into the PRA area. T he Panel notes in the following paragraph that the reports cite Ploetz et al.  
(2011) when asserting that the germination of a seed from a symptomless fruit would introduce the 
pest into the PRA area, but that Ploetz et al.  (2011) does not make any statemen ts on the 
introduction of ASBVd into an area.  
6.189.  During the proceedings, Costa Rica referred to the seed's high degree of transmission. 
Precisely because it has read Reports ARP -002-2017 and ARP -006-2016 in their entirety (including 
the datasheet), the  Panel acknowledged the comment in the datasheet that transmission through 
the seed of symptomless fruit is very high (95%), according to Hadidi et al.  (2003). The Panel 
observed however that, under the element on the risks from by -products and waste, ther e is no 
reference to the datasheet or to the statement contained therein, and concluded that there is no 
explanation under this element that associates the high degree of transmission through symptomless 
seeds with the introduction of ASBVd in the PRA area . 
6.190.  Despite the effort made by the Panel to find information in Reports ARP -002-2017 and 
ARP-006-2016 that is possibly linked to this element of the risk assessment, based on the arguments 
presented by Costa Rica in this dispute, the Panel could not a ssume the considerations that the risk 
assessor took into account when assessing the element in question and reaching a conclusion of 
"high" probability. Even reading the risk assessment together with the datasheet, the Panel could 
not substitute its own r easoning for that of the risk assessor.  
6.191.  In light of the foregoing, the Panel does not consider it necessary to modify its finding in 
paragraph 7.1246. Nevertheless, the Panel has made adjustments to this paragraph to add that 
under the element on th e risks from by -products and waste there is no reference to Hadidi et al.  
(2003), and that the considerations that led the risk assessor to conclude a "high" probability are 
unclear.  
6.12  Request for review concerning the general arguments on the evaluation of the 
likelihood of entry, establishment and spread in Reports ARP -002-2017 and 
ARP-006-2016  
6.192.  Referring to paragraphs 7.1429 and 7.1437, Mexico requests the Panel to revise its 
statements with respect to Mexico's arguments concerning the level of specificity required of the 
scientific evidence that Costa Rica presented in its risk analysis, based on the facts and arguments 
 
591 Costa Rica's request for review of the Interim Report, para. 2.72 (citing Manual 
NR-ARP-PO-01_M -01, (Exhibit MEX -104), p. 30).  WT/DS524/R  
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  put forward by Mexico throughout the dispute. Mexico reiterates some of its arguments put forward 
throughout the dispu te. 
6.193.  Costa Rica asserts that the level of specificity for the scientific evidence suggested by Mexico 
is so narrow that it would be counterproductive to the preparation of the risk assessments, since 
relevant scientific information on pests and hosts  would be ignored just because it is not pertinent 
to the countries concerned. According to Costa Rica, the Panel fully considered Mexico's arguments 
on the specificity of scientific evidence and on the relevance of its fresh fruit PRA (2015), and rejected  
them in a reasoned manner.  
6.194.  In paragraphs 7.1429 through 7.1437, the Panel addressed Mexico's arguments on the level 
of specificity required of scientific evidence, including those referring to previous disputes. In 
particular, the Panel analyses in  paragraph 7.1432 the observation by the Appellate Body in 
Japan  – Apples , and explains in paragraph 7.1433 why the situation in that case is different from 
that in the matter before this Panel.  
6.195.  The Panel also explains in paragraph 7.1434 that the a nalysis of fresh fruit imported for 
consumption from Mexico implies the need for certain specific considerations, such as the volume 
and frequency of imports of fresh avocados for consumption from Mexico, the quality control 
procedures in place in Mexico t o discard symptomatic fruit, the distribution of fresh avocado fruit 
imports in Costa Rica's markets, the product's intended use, and, according to Costa Rica, diversion 
from intended use and spontaneous germination.  
6.196.  The Panel has addressed Mexico's  arguments in section 7.4.5.3.6, and does not consider it 
necessary to revise its opinion. Nevertheless, in light of the parties' comments, the Panel has made 
additions to paragraph 7.1432, in order to elaborate on the difference between the situation of C osta 
Rica's risk assessment and that of the PRA in Japan – Apples . The Panel has also adjusted paragraph 
7.1434, in order to convey that the analysis of the issues identified therein would give the risk 
assessment the specificity required in this case and would have an impact on the magnitude of the 
risk of the particular pathway (i.e. fresh avocado fruit).  
6.13  Request for review concerning the titles of sections 7.6.4.1.1 and 7.6.4.1.2  
6.197.  Costa Rica indicates that the title of section 7.6.4.1.1 is "Whether Costa Rica has adopted its 
own levels of protection in different situations" and that the title of section 7.6.4.1.2 is "Whether 
Costa Rica's levels of protection exhibit arbitrary or unjustifiable distinctions in their treatment of 
different situations". Costa Rica considers that, in accordance with the legal standard under 
Article  5.5 described by the Panel in paragraphs 7.1948 -7.1975, Article  5.5 concerns different but 
comparable  situations, and suggests that the Panel add the words  "but comparable" to the two titles.  
6.198.  Mexico requests the Panel to reject Costa Rica's request. Mexico notes that it suffices to 
indicate that these are different situations, and that Article  5.5 of the SPS  Agreement  refers only to 
"levels … consider [ed] to be appropriate in different situations", therefore it is not necessary to add 
the words "but comparable".  
6.199.  The Panel  observes that Article  5.5 of the SPS  Agreement  refers to "arbitrary or unjustifiable 
distinctions in the levels [the Member] considers to be appropriate in different situations ". As 
Costa  Rica acknowledges, the Panel describes in section 7.6.3 the legal standard under Article  5.5 
of the SPS  Agreement . In that section, the Panel points out that, according to the Appellate Body in  
EC – Hormones , this element of Article  5.5 implies that a Member has established different levels of 
protection which it regards as appropriate for itself in differing situations592; and the situations 
exhibiting differing levels of protection cannot be co mpared unless they are comparable.593 The Panel 
analyses in section 7.6.4.1.1 the comparability of the situations identified by Mexico under 
Article  5.5. 
 
592 Appellate Body Report, EC – Hormones , para.  216. 
593 Appellate Body Report, EC – Hormones , para.  217. WT/DS524/R  
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  6.200.  In the view of this Panel, the titles of sections 7.6.4.1.1 and 7.6.4.1.2 indicate the elements 
of the Panel's analysis under Article  5.5 of the SPS  Agreement  to which these sections refer, and the 
Panel does not consider it necessary to modify these titles.  
6.14  Request for review concerning whether either of Mexico's proposed alternative 
measures are significantly less restrictive to trade than Resolutions DSFE -003-2018 and 
DSFE -002-2018  
6.201.  Costa Rica notes that paragraph 7.1931 addresses the impact on trade of its phytosanitary 
requirements, and that the exporting country has the option of cho osing between three alternatives: 
(i) certifying that the consignment is free of ASBVd; (ii)  certifying that the consignment comes from 
an ASBVd -free place of production; or (iii)  complying with a systems approach programme 
established bilaterally with Costa Rica. Costa Rica adds that, to reflect the alternative nature of these 
requirements, it suggests a change to paragraph 7.1931 to indicate that "it is necessary to comply 
either  with one of two certificates, or with a systems approach, which, regardless of which option is 
chosen, implies  an effort by the exporting country to ensure that its avocado fruit for export to 
Costa  Rica are free of ASBVd, which in turn would require adjus tments to avocado production and 
marketing ."594 
6.202.  Mexico states that it does not consider the drafting change to be necessary, given that it is 
understandable and distinguishes between alternatives to the phytosanitary requirements.  
6.203.  The Panel ha s made adjustments to the wording of the paragraph, taking into account 
Costa  Rica's suggestion to reflect the alternative nature of the requirements. As a result of these 
changes, the Panel has added two footnotes (footnotes 710 and 3033 of the final repo rt) relating to 
Costa Rica's comments on the option of complying with a systems approach programme established 
bilaterally with Costa Rica, in response to Panel question No.  53. 
6.15  Requests for review concerning the summary of the parties' arguments  
6.204. Costa Rica considers that paragraph 7.2 272 contains a typographical error, and indicates that 
the words "asserts that" should be deleted from the sentence "Costa Rica submits that in the context 
of Article  5.1 it asserts that the PRAs were carried out in line with the manual". Mexico agrees with 
Costa Rica's request. The Panel notes that this is not a typographical error, but that the purpose of 
the sentence is to point out that Costa Rica submits that its explanation that the PRAs were carried 
out foll owing the manual is found in the context of Article  5.1. The Panel has made a minor 
adjustment to paragraph 7.2 272. 
6.205.  Costa Rica considers that paragraph 7.2 276 is unclear, and suggests an amendment to the 
wording to reflect its arguments more clearly . Mexico submits that the wording proposed by Costa 
Rica alters the meaning of the paragraph originally drafted by the Panel, but concurs with Costa Rica 
that the paragraph does not accurately reflect what is stated in paragraph 5.40 of Costa Rica's first 
written submission. The Panel has accepted Costa Rica's suggestion regarding paragraph 7.2 276. 
7  FINDINGS  
7.1  General principles regarding the applicable standard of review, treaty interpretation, 
burden of proof, and order of analysis  
7.1.1   Function of the Panel and applicable standard of review  
7.1.  Article  11 of the DSU describes the function of panels as "assist[ing] the DSB in discharging its 
responsibilities under [the DSU] and the covered agreements" . To this end, panels should "make … 
findings … [that] will assist the DSB in making the recommendations or in giving the rulings provided 
for in the covered agreements" . In addition, Article  3.4 of the DSU stipulates that 
"[r]ecommendations or rulings made by the DSB shall be aimed at achieving a sati sfactory 
settlement of the matter in accordance with the rights and obligations under this Understanding and 
under the covered agreements ." 
 
594 Costa Rica's request for review of the Interim Report, para.  2.77. (emphasis added)  WT/DS524/R  
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  7.2.  Article  11 of the DSU also establishes the standard of review that panels must apply in order 
to fulfil their function stating that a panel should "make an objective assessment of the matter before 
it, including an objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements".  
7.3.  In SPS cases that deal wit h to Article  5.1 of the SPS  Agreement , where a panel examines 
whether the measure at issue is based on a risk assessment, the review power of the panel is not 
to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to 
determine whether that risk assessment is supported by coherent reasoning and respectable 
scientific evidence and is, in this sense, objectively justifiable.595 
7.4.  With regard to the review under Article  5.6 of the SPS  Agreement , panels are charged with, 
inter al ia, identifying the appropriate level of protection  (ALOP) of the Member whose SPS measure 
has been challenged . A panel would typically be expected to accord weight to the respondent's 
articulation of its ALOP, particularly where that ALOP was specified in  advance of the adoption of the 
SPS measure, where the ALOP is specified with sufficient precision, and where it has been 
consistently expressed by the responding Member . A panel, however, is not required to defer 
completely to a respondent's characterizat ion of its own ALOP . Rather, a panel must ascertain the 
respondent's ALOP on the basis of the totality of the arguments and evidence on the record.596 
7.5.  On the evaluation of the facts , the Appellate Body has noted that a panel must consider all the 
evidence p resented to it, assess its credibility, determine its weight, and ensure that its factual 
findings have a proper basis in that evidence .597 A panel must further provide in its report reasoned 
and adequate explanations and coherent reasoning to support its f indings .598 Within these 
parameters, it is generally within the discretion of the panel to decide which evidence it chooses to 
utilize in making findings .599 Although a panel must consider evidence before it in its totality, and 
evaluate the relevance and pr obative force of all of the evidence600, a panel is not required to discuss, 
in its report, each and every piece of evidence put before it601, or to accord to factual evidence of 
the parties the same meaning and weight as do the parties.602 
7.6.  With regard to the  treatment of evidence and experts' statements, the Appellate  Body in 
Australia – Apples  found that "a panel enjoys a margin of discretion in the assessment of the facts, 
including the treatment of evidence ."603 The Appellate Body explained that a panel's "role as the 
trier of facts requires it to review and consider all the evidence that it r eceives from the parties or 
that it seeks pursuant to Article  13 of the DSU", and added that, in its reasoning on a given issue, a 
panel must weigh and balance all the relevant evidence, including testimony by experts .604 
Nonetheless, as the Appellate Body noted in EC – Hormones , a panel "cannot realistically refer to all 
statements made by the experts advising it" .605 A panel may reproduce the relevant statements by 
the experts, but still fail to make an objective assessment of the facts under Article  11 if it then fails 
to properly assess the significance of these statements in its reasoning . Conversely, a panel that 
does not expressly reproduce certain statements of the experts may still make an objective 
assessment of the facts, especially when its reasoni ng reveals that it has assessed the significance 
of these statements or that these statements are manifestly not relevant .606 Moreover, the 
 
595 Appellate Body Report s, US/Canada – Continued Suspension , para. 590. 
596 Appellate  Body Reports, India – Agricultural Products , para.  5.221; and Korea – Radionuclides , 
para. 5.24. 
597 Appellate Body Report, Brazil – Retreaded Tyres , para.  185 (referring to Appellate Body Report, 
EC – Hormones , paras.  132-133). See al so Appellate Body Reports, EC – Asbestos , para.  161; EC – Bed Linen 
(Article 21.5  – India) , paras.  170, 177 and 181; EC – Sardines , para. 299; EC – Tube or Pipe Fittings , 
para. 125; Japan  – Apples , para.  221; Japan  – Agricultural Products II , paras.141 -142; Korea  – Alcoholic 
Beverages , paras.  161-162; Korea  – Dairy , para.  138; US – Carbon Steel , para.  142; US – Gambling , 
paras.  330 and 363; US – Oil Country Tubular Goods Sunset Reviews , para.  313; and  EC – Selected Customs 
Matters , para.  258. 
598 Appellate Body Report, US – Upland Cotton  (Article  21.5 – Brazil) , fn 618 to para.  293. 
599 Appellate Body Report, EC – Hormones , para.  135. 
600 Appellate Body Reports, US – Continued Zeroing , para.  331; and Korea – Dairy , para.  137. 
601 Appellate Body Report s, Australia – Apples , para.  271; and Brazil – Retreaded Tyres , para.  202. 
602 Appellate Body Report s, Australia – Salmon , para.  267; and  US – COOL , para.  299. 
603 Appellate Body Report, Australia – Apples , para.  271. 
604 Appellate Body Report, Australia – Apples , para.  275. 
605 Appellate Body Report, EC – Hormones , para.  138. See also Appellate Body Report, 
Australia  – Apples,  paras.  271 and 275.  
606 Appellate Body Report, Australia – Apples , para.  275. WT/DS524/R  
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  Appellate  Body stated in Japan – Apples  that panels "enjoy a margin of discretion in assessing the 
value of the evide nce, and the weight to be ascribed to that evidence".607 
7.7.  A panel's obligation to make an objective assessment of the matter  also refers to the 
applicability of and conformity with the relevant covered agreements , that is, the analysis of the 
consistency or inconsistency of the challenged measures with the applicable provisions .608 To that 
end, a panel may freely "use arguments submitted by any of the parties – or to develop its own 
legal reasoning – to support its own findings and conclusions on the matter un der its 
consideration" .609 In other words, each panel must assess the provisions of the relevant agreements 
and reach its own conclusions without necessarily limiting itself to the arguments  or approaches put 
forward by any of the parties .610 Where there is an absence of argumentation, however, a panel 
cannot intervene to raise arguments on a party's behalf and make the case for the complainant.611 
7.1.2   Interpretation of the relevant treaty provisions  
7.8.  In order to fulfil their function, panels may be called  upon to interpret the provisions at issue 
in a dispute . In this regard, Article  3.2 of the DSU states that the WTO dispute settlement system 
"is a central element in providing security and predictability to the multilateral trading system" and 
serves "to clarify the existing provisions of those agreements in accordance with customary rules of 
interpretation of public international law".  
7.9.  The Appellate Body has understood that the "customary rules of interpretation of public 
international law" mentioned in the DSU refer to the rules of interpretation that form part of general 
customary international law, which have been codified in Articles 31612, 32613 and 33614 of the 
 
607 Appellate Body Report , Japan – Apples , para.  166 (citing Appellate Body Report, EC – Asbestos , 
para. 161).  
608 Appellate Body Report, EC – Hormones , para.  118. 
609 Appellate Body Report, EC – Hormones , para. 156. 
610 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-In Tariff Program , 
para. 5.215.  
611 Appellate Body Report, EC – Fasteners (China) , para.  566. See also Appellate Body Reports, 
China  – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.236; and Canada – Renewable Energ y / Canada – 
Feed-In Tariff Program , para.  5.215.  
612 Article 31 of the Vienna  Convention , entitled "General rule of interpretation", states:  
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the 
terms of t he treaty in their context and in light of its object and purpose.  
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, 
including its preamble and annexes:  
(a) any agreement relating to the treaty which was made between all the parties in connection with the 
conclusion of the treaty;  
(b) any instrument which was made by one or more parties in connection with the conclusion of the 
treaty and accepted by the other parties as an instrument related to the tre aty. 
3. There shall be taken into account, together with the context:  
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the 
application of its provisions;  
(b) any subsequent practice in the application of the tr eaty which establishes the agreement of the 
parties regarding its interpretation;  
(c) any relevant rules of international law applicable in the relations between the parties.  
4. A special meaning shall be given to a term if it is established that the parti es so intended.  
613 Article 32 of the Vienna  Convention , entitled "Supplementary means of interpretation", states:  
Recourse may be had to supplementary means of interpretation, including the preparatory work of the 
treaty and the circumstances of its conclus ion, in order to confirm the meaning resulting from the application of 
Article 31 , or to determine the meaning when the interpretation according to Article 31:  
(a) leaves the meaning ambiguous or obscure; or  
(b) leads to a result which is manifestly absurd  or unreasonable.  
614 Article 33 of the Vienna  Convention , entitled "Interpretation of treaties authenticated in two or more 
languages", states:  
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in 
each langu age, unless the treaty provides or the parties agree that, in case of divergence, a particular text 
shall prevail.  
2. A version of the treaty in a language other than one of those in which the text was authenticated 
shall be considered an authentic text on ly if the treaty so provides or the parties so agree.  
3. The terms of the treaty are presumed to have the same meaning in each authentic text.  
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the 
authentic tex ts discloses a difference of meaning which the application of articles 31 and 32 does not remove, WT/DS524/R  
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  Vienna  Convention on the Law of Treaties (Vienna  Convention ).615 These rules of treaty 
interpretation apply to any treaty, in any field of public international law, and not just to the 
WTO agreements, and impose certain common disciplines upon treaty interpreters, irrespective of 
the content of the treaty provision being examined and irrespective of the field of international law 
concerned.616 
7.1.3   Burden of proof  
7.10.   The DSU does not contain any express provision on the burden of proof . However, based on 
general principles of law, the Appellate Body has explained that the burden of proof rests upon the 
party  asserting a fact , whether that party be the complainant or the defendant.617 
7.11.   In view of the foregoing, the initial burden of proving a violation lies with the complaining 
party, which must establish a  prima facie case (i.e. establish a presum ption) of the contested 
measure's inconsistency with a particular provision of the covered agreement . When that prima facie  
case is made, the burden of proof moves to the defending party, which must in turn counter or 
refute the claimed inconsistency .618 A prima facie  case "is one which, in the absence of effective 
refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the 
complaining party presenting the prima facie  case" .619 A prima facie  case must be based on evidence 
and legal argument put forward by the complaining party in relation to each of the elements of the 
claim.620 
7.12.   In the context of the covered agreements, precisely how much and precisely what kind of 
evidence will be required to establish such a presu mption will necessarily vary from measure to 
measure, provision to provision, and case to case.621 
7.13.   In the case at hand, and pursuant to the aforementioned principles, it behoves  Mexico to 
establish a prima facie  case for its claim s that the measures at issu e are inconsistent with the 
SPS Agreement and the G ATT 1994. S hould Mexico succeed in establishing a prima facie  case for its 
claim s, it would then be for Costa  Rica to refute them. 
7.1.4   Order of analysis  
7.14.   Before analysing Mexico's claims, the Panel must define the order in which it will examine 
those claims.  
7.15.   As a general principle, panels are free to structure the order of their analysis as they see fit, 
unless there exists a mandatory sequence of analysis .622 It is the nature of the relationship between 
two prov isions that will determine whether there exists a mandatory sequence of analysis which, if 
not followed, would amount to an error of law or would have repercussions for the substance of the 
analysis.623 
7.16.   Furthermore, although panels may decide to follow the particular order of legal claims 
suggested by the complaining party, they may also follow a different order of analysis so as to apply 
 
the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be 
adopted.  
The Panel also notes that, in accordance with Article XVI of the Marrakesh Agreement Establishing the 
World  Trade  Organization  (WTO  Agreement ), the texts of agreements in Spanish, French and English are 
equally authentic. The terms of the covered agreements are presumed to have the sam e meaning in each 
authentic text and, in the event that a difference in meaning is found, the meaning which best reconciles the 
three texts, having regard to the object and purpose of the treaty, shall be adopted. (Appellate Body Reports, 
Canada – Renewabl e Energy / Canada – Feed-In Tariff Program , fn 512 to para.  5.66).  
615 Appellate Body Reports, US – Gasoline , pp. 16 -17; and Japan – Alcoholic Beverages II , p. 11.  
616 Appellate Body Report, US – Hot-Rolled Steel , para.  60. 
617 Appellate Body Report,  US – Wool Shirts and Blouses , pp. 12 -16. 
618 Appellate Body Report, EC – Hormones , para.  98. 
619 Appellate Body Report, EC – Hormones , para.  104. 
620 Appellate Body Report, US – Gambling , para.  140. 
621 Appellate  Body Report, US – Wool Shirts and Blouses , p. 14. 
622 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para.  126. 
623 Appellate Body Report, Canada – Wheat Exports and Grain Imports , paras.  109 and 127.  WT/DS524/R  
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  the correct interpretation of the WTO law at issue .624 However, a panel may not ignore the 
fundamental structure and logic  of a provision in deciding the proper sequence of steps in its 
analysis.625 
7.17.   In this dispute, Mexico  has brought claims under Articles 1.1, 2.1, 2.2, 2.3, 3.1, 3.3, 5.1, 
5.2, 5.3, 5.5, 5.6 and 6.1 of the SPS  Agreement  and Articles III:4 and XI:1 of the G ATT 1994. 
7.18.   With respect to the order of claims made under the G ATT 1994 and the SPS  Agreement , 
Mexico notes that it agrees with the panel's approach in EC – Hormones (Canada) . Therefore it 
present s its claims under the SPS  Agreement  first and then its claims under the GATT  1994.626 
7.19.   Costa  Rica did not submit any specific arguments with respect to the order of analysis, and, 
when presenting its arguments  with respect to Mexico's claims , followed the order in which Mexico 
set out its claims, that is, first those under the SPS  Agreement  and then those under the G ATT 1994. 
7.20.   With regard to the relationship between the SPS  Agreement  and the G ATT 1994, the Panel  
notes that the eighth recital of the preamble of the SPS  Agreement  reflects the Members' desire "to 
elaborate rules for the application of the provisions of G ATT 1994 which relate to the use of sanitary 
or phytosanitary measures, in particular the provisions of Article  XX(b)" . The SPS  Agreement  can 
therefore be understoo d as a development, as regards SPS measures, of the general exception 
established under Article  XX(b) of the G ATT 1994. 
7.21.   The panel in EC – Hormones , after asserting that "[t]he SPS Agreement contains ... no explicit 
requirement of a prior violation of a pro vision of GATT which would govern the applicability of the 
SPS Agreement"627, turned to the question of which of the two agreements should be examined first . 
The panel considered that, given that the SPS  Agreement  specifically addresses the type of measure 
at issue in that dispute, it would be more efficient to first examine the claims raised under the 
SPS Agreement .628 The panel explained that , if it were to examine the G ATT 1994 first, it would 
need to revert to the SPS  Agreement .629 
7.22.   This Panel concurs with the panel in EC – Hormones , so it will first consider whether the 
SPS Agreement, the more specific agreement  invoked by Mexico , applies to Costa  Rica's measures.  
7.23.   With regard to its claims under the SPS  Agreement , Mexico began with t he issue of the 
applicability of the SPS  Agreement , before presenting its claims in the following order : (i) Articles  3.1 
and 3.3 ; (ii) Articles 5.1, 5.2, 5.3, and 2.2 ; (iii) Articles 5.5 and 2.3 ; (iv) Article  5.6; (v) Article  6.1; 
and (vi) Articles 1.1 an d 2.1. Costa  Rica followed the same structure as Mexico when presenting its 
arguments so as to facilitate treatment of the case.630 
7.24.   The Panel will be guided by the order of analysis followed by Mexico and Costa  Rica when 
developing their arguments, because both parties have followed a logical sequence . For example, 
given that the provisions of Article  5 of the SPS  Agreement  are a more specific expression of the 
provisions in Article  2 of the SPS  Agreement , previous panels have addressed obligations under 
Article 5 of the Agreement first .631 Mexico and Costa  Rica followed this sequence when presenting 
their arguments.  
 
624 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para.  277. 
625 Appellate Body  Report, Canada – Autos , para.  151 (citing Appellate Body Report, US – Shrimp , 
para. 119).  
626 Mexico's first written submission, para.  122. 
627 Panel  Report s, EC – Hormones (United  States) , para.  8.36; and EC – Hormones (Canada) , 
para. 8.39. 
628 Panel  Report s, EC – Hormones (United  States) , para.  8.42; and EC – Hormones (Canada) , 
para. 8.45. 
629 Panel  Report s, EC – Hormones (United  States) , para.  8.42; and EC – Hormones (Canada) , 
para. 8.45. 
630 Costa Rica's first written submission, para.  5.4. 
631 Panel  Report, US – Animals , para.  7.264. See also Appellate Body Reports, EC – Hormones , 
para.180; US/Canada – Continued Suspension , para.674; and Australia – Salmon , para.138; and 
Panel  Report s, Australia – Salmon (Article 21.5 – Canada ), paras.  7.85 and 7.161; EC – Approval and 
Marketing of Biotech Products , para.7.3399; and US – Poultry (China) , para.  7.157.  WT/DS524/R  
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  7.25.   However, as the Panel will explain when addressing Mexico's claims under Articles 3.1 and  3.3 
of the SPS  Agreement , Mexico's arguments with respect to those claims concern factual and legal 
issues which are dealt with more specifically in Mexico's other claims . Therefore, the Panel will not 
start with Mexico's claims under Articles 3.1 and 3.3 of the SPS  Agreement . 
7.26.   In particular, part of Mexic o's arguments under Articles 3.1 and 3.3 of the SPS  Agreement 
refer to the risk assessments in the Reports ARP -002-2017 and ARP -006-2016, and to the 
methodology used to produce those risk assessments, set out in Manual NR -ARP-PO-01_M -01. As 
Articles  5.1, 5 .2, and 5.3 of the SPS  Agreement  are the provisions that most specifically address risk 
assessments, the Panel will begin by analysing Mexico's claims under Articles 5.1, 5.2, 5.3, and 2.2, 
before turning to Mexico's claims under Articles 3.1 and 3.3 of th e SPS  Agreement . 
7.27.   The rest of Mexico's arguments under Articles 3.1 and 3.3 of the SPS  Agreement  concern 
factual and legal issues relating to the phytosanitary requirements in Resolutions  DSFE -002-2018 
and DSFE -003-2018, which are dealt with more specifical ly in Mexico's claims under Articles  5.5 and 
2.3, 5.6 and 6.1 . The Panel will therefore start by analysing those claims before addressing Mexico's 
claims under Articles 3.1 and 3.3 of the SPS  Agreement . 
7.28.   In light of the foregoing, the Panel will first consider whether the measures at issue are 
sanitary or phytosanitary (SPS) measures subject to the SPS  Agreement . If the measures identified 
by Mexico are found to be SPS measures subject to the SPS  Agreement, the Panel will proceed to 
analyse Mexico's cla ims under that  Agreement in the following order : (i) Articles 5.1, 5.2, 5.3, and 
2.2; (ii) ALOP and Article  5.6; (iii) Articles 5.5 and 2.3 ; (iv) Article  6.1; (v) Articles 3.1 and 3.3 ; and 
(vi) Articles  1.1 and 2.1 . Once the Panel has concluded its examina tion of Mexico's claims under the 
SPS Agreement, it will address Mexico's claims under Articles III:4 and XI:1 of the GATT  1994.  
7.2  How to address the measures at issue and the scope of the SPS  Agreement  
7.2.1   General introduction  to the section  
7.29.   Mexico asserts that  the specific measures at issue are those by which, both individually and 
jointly, Costa  Rica restricts the importation of fresh avocados for consumption from Mexico . Mexico 
contends that the requirements set out in Resolutions DSFE -002-2018 and DSFE -003-2018, Reports 
ARP-002-2017 and ARP -006-2016, and the methodology in Manual NR -ARP-PO-01_M -01 together 
constitute import restrictions on fresh avocados for consumption from Mexico.632 
7.30.   Mexico submits that the five measures must be evaluated individually and jointly633, and 
requests that the Panel make specific findings for each of the measures, as well as a finding on the 
operation of the measures at issue in conjunction with each other.634 
7.31.   Mexico also submits that Costa  Rica's measures are phy tosanitary measures in accordance 
with paragraph 1 of Annex A to the SPS  Agreement , and that these measures have affected 
international trade, so they are, individually and jointly, phytosanitary measures pursuant to the 
first sentence of Article  1.1 of th e SPS  Agreement ; and, consequently, the provisions of the 
SPS Agreement  apply to them .635 
7.32.   For its part , Costa  Rica contends that Mexico has failed to demonstrate that Costa  Rica's 
measures function together as an inseparable whole636, and that it is inapprop riate to assess Mexico's 
claims on the basis of a general measure or of a set of measures.637 
7.33.   Costa  Rica asserts that Mexico has put forward claims with respect to three instruments that 
it has identified as individual measures, but that these do not, in an d of themselves, meet the criteria 
 
632 Mexico's first written submission, paras.  93-94; response to Panel question No.  99, para.  116. 
633 Mexico's comments on Costa Rica's response to Panel ques tion No.  112, para.  4. 
634 Mexico's response to Panel question No.  112, para.  14. 
635 Mexico's first written submission, paras.  141-142. 
636 Costa Rica's second written submission, para.  2.3. 
637 Costa Rica's second written submission, paras.  2.1 and 2.6; closing statement at the second 
Panel  meeting, para.  1.2. WT/DS524/R  
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  for the applicability of the SPS Agreement .638 Costa  Rica submits that the Reports ARP -002-2017 
and ARP -006-2016 and the Manual NR -ARP-PO-01_M -01 do not constitute phytosanitary measures 
in accordance with the definition given in Annex A(1)639; and that Mexico has failed to demonstrate 
that they may affect international trade, either directly or indirectly.640 
7.34.   The Panel will determine  below : (i) whether the measures identified by Mexico are measures 
for the purpos es of the dispute settlement procedure ; (ii) whether the Panel will analyse individually 
the measures identified by Mexico , and, if so, (iii)  whether the aforementioned measures are, in and 
of themselves, or individually, SPS measures covered by the SPS  Agreement ; and (iv)  whether the 
Panel will analyse jointly the measures identified by Mexico.  
7.2.2   The Panel's analysis  
7.2.2.1   Whether the measures identified by Mexico are measures for the purposes of the 
dispute settlement procedure  
7.35.   Mexico  asserts that the specific me asures at issue are those by which, both individually and 
jointly, Costa  Rica restricts the importation of fresh avocados for consumption from Mexico . Mexico 
contends that the requirements set out in Resolutions DSFE -002-2018 and DSFE -003-2018, 
Reports  ARP-002-2017 and ARP -006-2016, and the methodology in Manual NR -ARP-PO-01_M -01 
together constitute import restrictions on fresh avocados for consumption from Mexico .641 Mexico 
considers these measures at issue, both individually and jointly, to be inconsistent with Costa  Rica's 
obligations under the SPS  Agreement  and the G ATT 1994.642 
7.36.   Mexico notes that it identified five individual measures, namely Resolutions DSFE -003-2018 
and DSFE -002-2018, Reports ARP -002-2017 and ARP -006-2016, and Manual NR -ARP-PO-01_M -01, 
and that these instruments are linked and operate in conjunction with each other, forming the basis 
upon which Costa Rica prohibits or restricts the importation of fre sh avocados for consumption from 
Mexico .643 For Mexico, the establishment of the phytosanitary requirements provided for in the 
resolutions cannot be understood without the existence of the PRA reports, and those PRA reports 
cannot be considered in isolatio n without the manual, in which the SFE established the methodology 
for preparing the reports.644 
7.37.   Mexico submits that the resolutions are decrees that have the quality of an administrative act 
and are based on Law No. 7664, issued by the Congress of Costa Ri ca; that the PRA reports are 
administrative acts carried out by the UARP of the SFE and constitute the basis for the resolutions ; 
and that the manual is a document, prepared and approved by the SFE that all UARP officials apply 
when carrying out qualitativ e analysis of pests, hence it is an administrative act.645 
7.38.   With regard to the repeal of the manual, Mexico notes that even though the manual has been 
repealed, it remains relevant to the present dispute646, and was the tool used to carry out the PRAs 
in forc e.647 Mexico asserts that the Panel should rule on the measures contested at the outset of 
proceedings, since they form the basis for the violations that affect international trade between 
Mexico and Costa Rica .648 Mexico submits that should the Panel make findings with respect to Manual 
NR-ARP-PO-01_M -01 this would have an effect on Costa  Rica's risk assessments, when determining 
whether those assessments are inconsistent with the SPS  Agreement , and will, in turn, ha ve 
 
638 Costa Rica's response to Panel question No.  112, para.  3; closing statement at the second Panel 
meeting, para.  1.2. 
639 Costa Rica's response to Panel question No.  112, para.  3; response to Panel question N o. 115, 
paras.  18-19; and response to Panel question No.  119, para.  37. 
640 Costa Rica's first written submission, para.  5.2 and fn  94; closing statement at the second Panel 
meeting, para.  1.2; and response to Panel question No.  117, para.  32. 
641 Mexico's first written submission, paras.  93-94; response to Panel question No.  99, para.  116. 
642 Mexico's first written submission, para.  120. 
643 Mexico's response to Panel question No.  99, paras.  113-114; response to Panel question No.  111, 
para. 2. 
644 Mexico's response to Panel question No.  111, para.  2. 
645 Mexico's response to Panel question No.  99, para.  114. 
646 Mexico's comments on Costa Rica's response to Panel question No.  118, para.  5. 
647 Mexico's comments on Costa Rica's response to Panel question N o. 119, paras.  3 and 7.  
648 Mexico's response to Panel question No.  118, para.  43; comments on Costa Rica's response to Panel 
question  No. 118, para . 3. WT/DS524/R  
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  implications for the phytosanitary requirements, as the risk assessor based his or her assessment 
on a manual inconsistent with the SPS  Agreement .649 
7.39.   Costa  Rica does not contest that the SPS  Agreement  may be applicable to this dispute in 
general, or that  each of the three measures, namely the phytosanitary requirements, the PRAs and 
the manual, may fall within the Panel's terms of reference . However, Costa  Rica expresses some 
concern about how Mexico has brought its claims and met its burden of proof as t he complaining 
party.650 
7.40.   With regard to the repeal of the manual, Costa  Rica submits that, in the event that the Panel 
considers that the SPS  Agreement  applies to the manual and determines that the latter is 
inconsistent with the SPS  Agreement , the fact tha t it has been repealed means that it would be 
inappropriate to issue recommendations.651 
7.41.   The Panel  notes that, pursuant to Article  7.1 of the DSU, the request for the establishment 
of a panel governs its terms of reference, unless the parties agree otherwis e.652 Pursuant to 
Article  6.2 of the DSU, that request for the establishment of a panel shall identify the specific 
measures at issue . Pursuant to this Article, the complaining party enjoys certain discretion in the 
identification of the specific measures a t issue.653 
7.42.   In its panel request, Mexico indicated that the specific measures at issue were "those by which 
Costa  Rica prohibits or restricts, either jointly or individually, the importation of fresh avocados for 
consumption from Mexico" .654 With the phrase "[t]hese measures include, but are not limited to", 
Mexico identified:  
Resolutions DSFE -003-2018 and DSFE -002-2018 issued by the State Phytosanitary 
Service of the Ministry of Agriculture and Livestock of Costa  Rica, dated 
29 January  2018.  
Reports ARP -002-2017 and ARP -006-2016 by the Pest Risk Analysis Unit of the State 
Phytosanitary Service, dated 1 0 July 2017, a s well as Manual  NR-ARP-PO-01_M -01 
containing the qualitative methodology applied in the said risk analyses.655 
7.43.   Mexico added that its panel request relates "to the aforementioned measures at issue and to 
any additional measures that amend, supersede, update  or replace them".656 
7.44.   There is no specific definition of the term "measure" in the DSU, but the Appellate  Body has 
explained that a measure for the purposes of dispute settlement proceedings can be, "[i]n principle, 
any act or omission attributable to a WTO  Member".657 
7.45.   The resolutions, reports and manual identified by Mexico as specific measures at issue are 
acts attributable to Costa  Rica, and therefore fall within the broad definition of what can constitute 
a "measure" for the purposes of the WTO dispute se ttlement system.  
7.46.   Moreover, the Panel considers that Mexico presented, with sufficient clarity, the measures it 
is challenging in this dispute, and is therefore of the opinion that the measures were properly 
identified in accordance with Article  6.2 of the DSU, and are thus within its terms of reference . The 
Panel also notes that Costa  Rica does not dispute that each of the measures identified by Mexico 
may fall within the Panel's terms of reference.  
 
649 Mexico's comments on Costa Rica's response to Panel question No.  118, para.  1. 
650 Costa Rica's first written submission, para.  5.1. 
651 Costa Rica's response to Panel question No.  118, para.  35. 
652 Appellate Body Report, US – Upland Cotton , para.  293 (citing Appellate Body Report, 
US – Carbon  Steel, para.  124).  
653 Appellate  Body Report, EC – Selected Cu stoms Matters , para.  149. 
654 Mexico's panel request, WT/DS524/2, p. 2.  
655 Mexico's panel request, WT/DS524/2, p. 2.  
656 Mexico's panel request, WT/DS524/2, p. 2.  
657 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  81. WT/DS524/R  
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  7.47.   The Panel further notes that Manual NR -ARP-PO-01_M -01, pre pared and adopted in 
May 2016, has been repealed . A new manual was produced on 1 4 September  2017 and adopted on 
16 March  2018.658 Mexico requested consultations with Costa  Rica on 8 March  2017659, and the 
establishment of a panel on 2 2 November  2018.660 This Panel was established on 
18 December  2018.661 In light of the foregoing, the manual was in force at the time of Mexico's 
request for consultations, but does not appear to have been in force when Mexico requested the 
establishment of this Panel or when t his Panel was established . However, this manual was the tool 
used to guide the preparation of Reports ARP -002-2017 and ARP -006-2016, which were not 
amended following the issuance of the new manual, so, even though it has been repealed, the 
manual continues  to have an effect on the reports.  
7.48.   In US – Upland Cotton , the Appellate Body considered that Articles  3.3, 4.2 , and 6.2 of the 
DSU "do not preclude a Member from making representations with respect to measures whose 
legislative basis has expired, if that M ember considers, with reason, that benefits accruing to it under 
the covered agreements are still being impaired by those measures" . The Appellate Body added that 
if the effect of such measures remains in dispute following consultations, the complaining pa rty may 
request the establishment of a panel, and that Article  6.2 "does not suggest that such measures 
could not be the subject of a panel request as 'specific measures at issue'".662 
7.49.   In EC – Bananas III (Article  21.5 – Ecuador II)  / EC – Bananas III (Arti cle 21.5 – 
United  States ), referring to its report in US – Upland Cotton , the Appellate Body considered that "if 
the DSU does not exclude from the scope of consultations, or from the scope of panel proceedings, 
a measure that was no longer in force when the dispute was initiated, then, a fortiori , a panel is not 
precluded from  making findings with respect to measures that expire during the course of the 
proceedings ."663 
7.50.   The Appellate Body also noted in EU – PET (Pakistan)  that, within the margin of discretion 
that a panel has in the exercise of its inherent adjudicative powers, "it is for the panel to decide how 
it takes into account subsequent modifications to, or expiry or repeal of, the measure at issue ."664 
7.51.   In EU – PET (Pakistan) , the Appellate Body stated that a complaining Member's continued 
request for findings following th e expiry of the measure at issue is a relevant consideration, and that 
the panel should objectively assess whether the "matter" before it, within the meaning of Article s 7.1 
and 11 of the DSU, has been fully resolved or still requires to be examined .665 In this case, the 
Appellate Body confirmed that the panel had made an objective assessment that "the matter" before 
it still required to be examined because the parties continued to be in disagreement as to the 
applicability of and conformity with the relevan t covered agreements with respect to the 
European  Commission's findings underpinning the expired measure at issue.666 
7.52.   With regard to the formulation of recommendations, the Appellate Body has indicated that 
the fact that a measure has expired "may affect" w hat recommendation a panel may make667, but 
has subsequently clarified that it was not suggesting that a panel was precluded from making a 
recommendation on such a measure in a particular case .668 The Appellate Body added that 
"[i]n general, in cases where t he measure at issue consists of a law or regulation that has been 
repealed during the panel proceedings, it would seem there would be no need for a panel to make 
a recommendation in order to resolve the dispute".669 
 
658 New Manual NR -ARP-M-01, (Exhibit CRI -105), p. 1.  
659 Request for consultations by Mexico, WT/DS524/1.  
660 Mexico's panel request, WT/DS524/2, p. 1.  
661 DSB, Minutes of the meeting held on 18  December  2018, WT/DSB/M/423, p. 38.  
662 Appellate Body Report, US – Upland Cotton , para. 270. 
663 Appellate Body Report s, EC – Bananas III (Article  21.5 – Ecuador II) / EC – Bananas III (Article  21.5 
– United  States) , para.  269. 
664 Appellate  Body Report, EU – PET (Pakistan) , para.  5.19. 
665 Appellate Body Report, EU – PET (Pakistan) , paras.  5.42-5.43. 
666 Appellate  Body Report, EU – PET (Pakistan) , para.  5.51. 
667 Appellate Body Report, US – Upland Cotton , para.  272. See also Appellate Body Report s, 
EC – Bananas III (Article  21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – United  States ), para. 270. 
668 Appellate  Body Report s, China – Raw Materials , para.  264. 
669 Appellate  Body Report s, China – Raw Materials , para.  264. WT/DS524/R  
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  7.53.   It follows from the foregoing that panels have the authority to  make findings on measures 
that were no longer in force when the panel was established if the effects of those measures continue 
to be felt . Although, in general, it appears unnecessary for a p anel to make recommendations on a 
repealed measure, the panel is not precluded from doing so in any particular case.  
7.54.   The Panel notes that Mexico has requested findings only on Manual NR -ARP-PO-01_M -01 that 
existed when this Panel was established and not on  the new 2018 manual . As noted, the 2016 
manual was used to prepare Reports ARP -002-2017 and ARP -006-2016, hence its effects continue 
to be felt.  
7.55.   The Panel is of the view that the repeal of Manual NR -ARP-PO-01_M -01 does not resolve the 
matter before it, given the manual's ongoing effects on the reports' preparation, and given the 
disagreement between the parties on the applicability of the relevant covered agreements and on 
the manual's consistency with those agreements.  
7.56.   The Panel therefore considers that  it is not precluded from making findings or 
recommendations with respect to Manual  NR-ARP-PO-01_M -01, even though that document has 
been repealed.  
7.2.2.2   Whether the Panel will analyse individually the measures identified by Mexico  
7.57.   In its replies to the Panel's questions following the first meeting of the Panel with the parties 
and in its second written submission, Mexico  argued that the identified measures should be analysed 
jointly and as a whole, given their close relationship . Mexico indicated that, while rec ognizing that 
the measures are based on various instruments and that some of them should be analysed 
individually in accordance with specific provisions of the SPS  Agreement  and the G ATT 1994, the 
Panel's conclusions and findings should refer to the measur es jointly , since they function as an 
inseparable whole and cannot be understood on their own .670 For Mexico, a fragmented analysis of 
each of the instruments would lead to equally disjointed and meaningless findings.671 
7.58.   In its replies to the Panel's questio ns following the second meeting of the Panel with the 
parties, Mexico clarified that it had requested the Panel to make findings specific to each of the 
measures, as well as a finding on the operation of the measures in conjunction with each other.672 
7.59.   Mexic o states that if the measures are only dealt with jointly and not analysed individually, it 
could result in the dispute not being fully resolved, since there are elements of each of the measures 
that must be analysed to avoid future violations of the SPS  Agreement .673 Mexico considers relevant 
the panel's decision in Japan – Apples (Article  21.5 – United  States ), which, according to Mexico, 
treated the requirements imposed by Japan as elements of one single measure, but made specific 
findings on each of them, as it believed that approach would assist in the prompt resolution of the 
dispute.674 
7.60.   When analysing the p rovisions that are the subject of the complaint, Mexico requests the 
Panel to rule on each measure individually, since each of the measures violates specific elements of 
the SPS  Agreement .675 According to Mexico, failing to proceed in this manner, would run  the risk of 
maintaining  the specific violations identified in each of these measures . Mexico is of the view that if 
the Panel determines that only the resolutions are inconsistent with the SPS  Agreement , it would 
mean that the PRAs, particularly the analy sis and reasoning behind them, and on which the 
resolutions are based and, thus, the phytosanitary requirements, would remain outside the scope of 
an examination under the SPS  Agreement .676 
 
670 Mexico's response to Panel question No.  99, para.  116; second written submission, paras.  7-8. 
671 Mexico's response to Panel question No.  99, para.  121. 
672 Mexico's response to Panel question No.  112, para.  14. 
673 Mexico's response to Panel question No.  112, para.  16; comments on Costa Rica's response to 
Panel  question No.  112, para.11.  
674 Mexico's response to Panel question No. 112, para.  17. 
675 Mexico's response to Panel question No.  112, para.  18. 
676 Mexico's opening statement at the second Panel meeting, para.  21; response to Panel question 
No. 112, para.  18. WT/DS524/R  
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  7.61.   Mexico asserts  that, by applying the SPS  Agreement  to each of the m easures individually, the 
Panel could identify specific elements of each measure that result in a violation of the 
SPS Agreement, and that differentiate them from each other,  and of the measure as a whole.677 
7.62.   For its part , Costa  Rica notes that, even though  Mexico expressly requests that the measures 
be considered "jointly" as an inseparable whole and specifically states that it is not requesting a 
separate decision for each of the measures, its table in response to Panel question  No. 99 clearly 
separates th e measures according to each claim, and those measures are the same as the five 
distinct legal instruments identified by Mexico . According to Costa  Rica, in addition to contradicting 
its request that the measures be analysed as an inseparable whole, Mexico confuses the concepts 
of "measure" and "legal instrument", which are different.678 
7.63.   Costa  Rica states that the complaint should be dealt with on the basis of the measures as they 
were presented individually679, and submits that the most important conse quence of addressing the 
measures at issue individually is that the Panel must consider the applicability of the SPS  Agreement 
to each of these measures individual ly and separately from the rest .680 Costa  Rica states that if any 
of the measures does not mee t, in itself, the applicability criteria of the SPS  Agreement , that 
measure should not be assessed in light of the Agreement's substantive obligations, nor should the 
Panel issue rulings and/or recommendations with respect to it .681 Giving the example of tr ade 
implications, Costa  Rica adds that it is not appropriate to use, by virtue of "cross -cutting" sufficiency, 
other measures at issue that may meet the applicability criteria to overcome or compensate for a 
measure falling short of those criteria.682 
7.64.   The Panel notes that Mexico has maintained, on the one hand, that the Panel's conclusions 
and findings should refer to the measures jointly, since they function as an inseparable whole and 
cannot be understood on their own . Mexico  has also indicated, on the oth er hand, that it recognizes 
that the measures are based on various instruments, and that some of them should be analysed 
individually in accordance with specific provisions of the SPS  Agreement  and the G ATT 1994. 
Subsequently, Mexico has requested specific  findings on each of the measures, as well as a finding 
on the operation of the measures in conjunction with each other.  
7.65.   As stated  above, the five instruments identified by Mexico as the measures at issue are, 
individually, properly within this Panel's ter ms of reference, so there is no reason why this Panel 
may not consider the measures individually, as Mexico has requested.  
7.66.   However, the Panel agrees with Costa  Rica that one of the consequences of addressing the 
measures at issue individually is that the P anel must examine the applicability of the SPS  Agreement 
to each of these measures separately . In fact , if Mexico wishes the Panel to make findings on the 
measures identified individually, as separate SPS measures to which the SPS  Agreement  applies, 
the Pa nel must examine the applicability of the SPS  Agreement to each of these measures 
individually as well . The Panel will undertake this analysis below.  
7.2.2.3   Whether Costa  Rica's measures are sanitary or phytosanitary measures covered 
by the SPS  Agreement  
7.67.   Article  11 of the DSU stipulates that a panel should make an objective assessment of the 
applicability of the relevant covered agreements to the matter before it . Accordingly, a panel in a 
dispute in which provisions of the SPS  Agreement  are cit ed, must first determine whether the 
challenged measures are subject to the disciplines of that Agreement.683 
7.68.   Article  1 of the SPS  Agreement establishes the Agreement's scope of application as follows:  
 
677 Mexico's comments on Costa Rica's response to Panel question No.  112, para.  7. 
678 Costa Rica's second written submission, paras.  2.2 and 2.7 -2.8. See also Costa Rica's response to 
Panel question No.  112, para.  10. 
679 Costa Rica's comments on Mexico's response to Panel question No.  112, para.  10. 
680 Costa Rica' s response to Panel question No.  112, para.  2. 
681 Costa Rica's response to Panel question No.  112, para.  2. 
682 Costa Rica's response to Panel question No.  112, para.  2. 
683 Panel  Report, Korea – Radionuclides , para.  7.19. WT/DS524/R  
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  1. This Agreement applies to all sanitary and phytosanitary measures which may, 
directly or indirectly, affect international trade . Such measures shall be developed and 
applied in accordance with the provisions of this  Agreement.  
2. For the purposes of this  Agreement, the definitions provided in Annex  A shall 
apply.  
7.69.   In accordance with the wording of th is Article, there are two conditions for determining the 
applicability of the SPS  Agreement  to a measure . First, the measure must be a sanitary or 
phytosanitary (SPS) measure in the terms of the Agreement  itself and, second, the measure must 
be able, directly or indirectly, to affect international trade.684 
7.70.   It should also be clarified that the fact that a measure is an SPS measure within the meaning 
of the definition set forth in Annex A(1) "does not mean t hat it is, ipso facto , subject to every 
provision of the SPS Agreement "685 and that "[a] determination of which particular provisions are 
applicable to a given measure, must be done on a case -by-case basis".686 
7.71.   In accordance with the foregoing, the Panel mus t examine the applicability of the 
SPS Agreement with respect to each of the measures identified by Mexico, namely, 
Resolutions  DSFE -002-2018 and DSFE -003-2018, Reports ARP -002-2017 and ARP -006-2016, and 
Manual NR -ARP-PO-01_M -01, separately.  
7.72.   In order to de termine whether Resolutions DSFE -002-2018 and DSFE -003-2018, 
Reports  ARP-002-2017 and ARP -006-2016, and Manual NR -ARP-PO-01_M -01 are SPS measures 
subject to the SPS  Agreement , the Panel will examine (i)  whether these instruments are SPS 
measures within the meaning of the definition given in paragraph 1 of Annex A to the 
SPS Agreement ; and (ii)  whether they may, directly or indirectly, affect international trade . The 
Panel will consider these two conditions for the applicability  of the SPS  Agreemen t with respect to 
each of the measures identified by Mexico as individual measures.  
7.2.2.3.1   Resolutions DSFE -002-2018 and DSFE -003-2018  
7.2.2.3.1.1   Whether Resolutions DSFE -002-2018 and DSFE -003-2018 are SPS measures 
pursuant to paragraph 1 of Annex A to the SPS  Agreement  
7.73.   With respect to the first condition for a measure to be covered by the SPS  Agreement, i.e. 
that the measure is an SPS measure in accordance with the terms of the Agreement, the 
Appellate  Body noted in Australia – Apples  that "[a] unique feature of the SPS Agr eement  is that it 
defines the measures that are subject to its disciplines", and that definition is given in Annex A(1).687 
7.74.   According to paragraph 1 of Annex A to the SPS  Agreement , entitled "Definitions", the 
SPS measures that are relevant to this dispute are defined as follows:  
1. Sanitary or phytosanitary measure – Any measure applied:  
(a) to protect animal or plant life or health within the territory of the Member from 
risks arising from the entry, establishment or spread of pests, diseases, 
disease-carrying organisms or disease -causing organisms;  
… 
Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, 
requirements and procedures including, inter alia, end product criteria ; processes and 
production methods ; testing, i nspection, certification and approval procedures ; 
 
684 Panel  Report s, Korea – Radionuclides , para.  7.22; EC – Hormones (Canada) , para.  8.39; 
EC – Hormones (US) , para.  8.36; and EC – Approval and Marketing of Biotech Products , para.  7.2554.  
685 Panel  Report , Korea – Radionuclides , para.  7.33 (citing Panel  Report , EC – Approval and Marketing of 
Biotech Products , para.  7.1337).  
686 Panel  Report , Korea – Radionuclides , para.  7.33 (citing Panel  Report , US – Poultry (China) , 
para. 7.139).  
687 Appellate Body Report, Australia – Apples , para.  170. WT/DS524/R  
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  quarantine treatments including relevant requirements associated with the transport of 
animals or plants, or with the materials necessary for their survival during transport ; 
provisions on relevant statisti cal methods, sampling procedures and methods of risk 
assessment ; and packaging and labelling requirements directly related to food safety.  
7.75.   In Korea – Radionuclides , the Appellate Body explained that "SPS  measures relate to a 
'protected interest' as set out  in Annex A(1) to the SPS  Agreement, which corresponds to protection 
against a specific risk, or preventing or limiting damage from certain causes ."688 
7.76.   The Appellate Body in Australia – Apples  noted that a fundamental element of the definition 
of "SPS measu re" set out in Annex A(1) is that such a measure must be one "applied to protect" at 
least one of the listed interests or "to prevent or limit" specified damage .689 The Appellate  Body 
considered that Annex A(1) contains objectives introduced by the word "to", which in adverbial 
relation with the infinitive verb "protect" indicates a purpose or intention690, and, thus, establishes 
"a required link between the measure and the protected interest".691, 692 
7.77.   The Appellate Body explained that the word "applied" in the definition of SPS measures set 
out in Annex A(1) points to the application of the measure and, thus, suggests that the relationship 
of the measure and one of the objectives listed in that paragraph must be manifest in the measure 
itself or otherwise ev ident from the circumstances related to the application of the measure .693 Thus, 
when  determin ing whether a measure is "applied … to protect" in the sense of one of the 
subparagraphs in Annex  A(1), a panel must examine not only the stated objectives of the measure, 
but also the text and structure of the relevant measure, its surrounding regulatory context, and the 
way in which it is  designed and applied .694 Should scrutiny of such circumstances reveal "a clear and 
objective relationship" between the measure and the specific purposes enumerated in Annex  A(1), 
the objective purpose of the measure is seen to fall within that provision an d that, therefore, the 
measure is within the jurisdiction of the SPS  Agreement .695 
7.78.   The subparagraph of paragraph 1 of Annex A to the SPS  Agreement  invoked by Mexico  is 
subparagraph (a), which establishes that an SPS measure is "any measure applied to protec t ... 
plant life or health within the territory of a Member from risks arising from the entry, establishment 
or spread of pests, diseases, disease -carrying organisms or disease -causing organisms".  
7.79.   With regard to the last sentence of Annex A(1), the Appella te Body in Australia – Apples  noted 
that it follows, and relates to, all of the first sentence, including all of the purposes enumerated in 
subparagraphs (a) through (d), and that the first part of this sentence contains a list of legal 
instruments linked by the conjunction "and" ("laws, decrees, regulations, requirements and 
procedures").696 
7.80.   The Appellate Body explained that this list is modified by the words "include" and "all 
relevant" ; that the word "relevant" is a reference back to the preceding sentenc e in Annex A(1), that 
is, to the list of specific purposes that are the defining characteristic of every SPS measure, and that 
the words "include" and "all", which also introduce the list of instruments, suggest that the list is 
both illustrative and expan sive. Thus, according to the Appellate Body, "[t]aken together, the words 
'include' and 'all relevant' therefore suggest that measures of a type not expressly listed may 
 
688 Appellate  Body Report, Korea – Radionuclides , para.  5.59. (fn  omitted)  
689 Appellate Body Report, Australia – Apples , para.  172. 
690 Appellate Body Report, Australia – Apples , para.  172. 
691 Appellate Body Report, Australia – Apples , para.  172. 
692 The Panel notes that the Spanish version of the SPS Agreeme nt refers to measures applied " para 
proteger la salud y la vida de los animales o para preservar los vegetales " ("to protect animal or plant life or 
health"), while the English version uses the same verb, "to protect", in conjunction with the life and heal th of 
both animals and plants. According to the Diccionario de la lengua española  published by the Real Academia 
Española, " preservar " means " proteger " ("to protect"). ( Diccionario de la lengua española , Real Academia 
Española, accessed 30  November  2021, https://dle.rae.es/preservar ). 
693 Appellate Body Report, Australia – Apples , para.  172; and Panel  Report , Korea – Radionuclides , 
para. 7.25. 
694 Appellate Body Report, Australia – Apples , para.  173; and Panel  Report , Korea – Radionuclides , 
para. 7.25. 
695 Appellate Body Report, Australia – Apples , para.  173; and Panel  Report , Korea – Radionuclides , 
para. 7.25. 
696 Appellate Body Report, Australia – Apples , para.  175. WT/DS524/R  
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  nevertheless constitute SPS measures when they are 'relevant', that is, when they are 'applied' for 
a purpose that corresponds to one of those listed in subparagraphs (a) through  (d)".697 The 
Appellate  Body added that, conversely, "the fact that an instrument is of a type listed in the last 
sentence of Annex  A(1) is not, in itself, sufficien t to bring such an instrument within the ambit of 
the SPS Agreement ".698 
7.81.   Turning to the second part of the last sentence, the Appellate Body in Australia – Apples  noted 
that this provision introduces a list of instruments with the words "including, inter alia", emphasizing 
that the list is only indicative .699 The Appellate Body added that "[t]he list thus serves to illustrate, 
through a set of concrete examples, the different types of measures that, when they exhibit the 
appropriate nexus to one of the specif ied purposes, will constitute SPS  measures and, accordingly, 
be subject to the disciplines set out in the SPS Agreement ."700 
7.82.   Mexico  submits that Resolutions DSFE -002-2018 and DSFE -003-2018 are phytosanitary 
measures within the meaning of paragraph 1 of Annex A to the SPS  Agreement , since they regulate 
the importation of plants, specifically avocados, and are intended to prevent the introduction of a 
pest, ASBVd, into Costa  Rican territory . Mexico adds that these resolutions are referred to as 
"phytosanit ary measures" and that they state that the requirements are established "as a 
phytosanitary measure".701 
7.83.   Mexico points out that, while the category "resolutions" is not listed in the last part of 
paragraph 1 of Annex A to the SPS  Agreement , both resolutions  were distributed to the Members of 
the SPS Committee.702 
7.84.   Mexico adds that there is a link between the nature of the measures and their objective, since 
their application is mandatory in order to mitigate, purportedly, the risks associated with the 
importat ion of regulated articles that are vectors of ASBVd and establish phytosanitary requirements 
for the importation of fresh avocado  fruit from Mexico and other countries where ASBVd is present.703 
7.85.   For its part , Costa  Rica accepts that the phytosanitary requir ements are obligations and 
requirements to protect the objectives set out in Annex A(1), and as such would qualify as a 
phytosanitary measure.704 
7.86.   The Panel  will next examine whether Resolutions DSFE -002-2018 and DSFE -003-2018 
constitute phytosanitary measur es within the meaning of paragraph 1 of Annex A to the 
SPS Agreement . 
7.87.   As detailed  above, in order to determine whether a measure has been "applied to protect" 
within the meaning of one of the subparagraphs of Annex A(1), a panel must examine not only the 
stated objectives of the measure, but also the text and structure of the measure, its surrounding 
regulatory context and the way in which it is designed and applied, and that scrutiny of such 
circumstances must reveal "a clear and objective relationship" be tween the measure and the specific 
purposes enumerated in that provision.705 
7.88.   Mexico claims, and Costa  Rica does not dispute, that the objective of Resolutions 
DSFE -002-2018 and DSFE -003-2018 is to prevent the introduction of ASBVd into Costa  Rican 
territory, and that these are SPS measures pursuant to the definition in Annex A(1) . Moreover, both 
resolutions were notified to the WTO as phytosanitary measures.706 
 
697 Appellate Body Report, Australia – Apples , para. 175. 
698 Appellate Body Report, Australia – Apples , para.  175. 
699 Appellate Body Report, Australia – Apples , para.  176. 
700 Appellate Body Report, Australia – Apples , para.  176. 
701 Mexico's first written submission, para.  129. 
702 Mexico's first written submission, para.  129. 
703 Mexico's first written submission, para.  130. 
704 Costa Rica's response to Panel question No.  116, para.  27. 
705 Appellate Body Report, Australia – Apples , para.  173; and Panel  Report , Korea – Radionuclides , 
para. 7.25. 
706 Committee on Sanitary and Phytosanitary Measures, Notification, Addendum, 
G/SPS/N/CRI/191/Add.1, 7  February  2018; Committee on Sanitary and Phytosanitary Measures, Notification, 
Addendum, G/SPS/N/CRI/162/Add.2, 7  February  2018.  WT/DS524/R  
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  7.89.   Resolution DSFE -003-2018 states that it establishes, "as a phytosanitary measure", three 
alternative requirements with regard to ASBVd for imports of fresh avocado  fruit for consumption 
from Mexico .707 The same applies to Resolution DSFE -002-2018, which also states that it establishes, 
"as a phytosanitary measure", three alternative requirements  with regard to ASBVd for imports of 
fresh avocado  fruit for consumption from Mexico and other  countries where ASBVd is present , and 
the requirements for avocado plants for planting .708 Both resolutions contemplate phytosanitary 
protection, pursuant to the IPPC, stating  that the Convention recognizes the importance of 
controlling plant pests and diseases and plant products, and pursuant to the Law on Phytosanitary 
Protection of Costa  Rica, which declares that the application of phytosanitary measures is in t he 
public interest and mandatory in order to protect, inter alia , plants from the damage caused by 
pests, and to avoid and prevent the introduction and spread of pests.709 
7.90.   In addition, the wording of the three alternative requirements imposed by Costa  Rica with 
regard to ASBVd transmitted by the route of fresh avocado  fruit for consumption, namely a 
phytosanitary certificate stating that the fruit is free of ASBVd, a phytosanitary certificate from a 
place of production free of ASBVd or a systems approach pro gramme710, shows that these 
requirements seek to protect against the introduction of ASBVd, so it is clear that they are 
phytosanitary requirements applied to protect avocados in Costa  Rica and prevent the entry, 
establishment or spread of ASBVd in that cou ntry. 
7.91.   In light of the foregoing, the Panel is of the view that, according to its text, structure, 
regulatory context, application and stated objective, the phytosanitary requirements contained in 
Resolutions DSFE -002-2018 and DSFE -003-2018 are clearly rela ted to the objective of protecting 
plant (avocados) life or health within the territory of Costa  Rica from risks arising from the entry, 
establishment or spread of pests, diseases, disease -carrying organisms or disease -causing 
organisms (ASBVd), which corresponds to paragraph 1(a) of Annex A to the SPS  Agreement.  
7.92.   Therefore, the Panel considers that Resolutions DSFE -002-2018 and DSFE -003-2018 have a 
clear and objective relationship with the purpose enumerated in Annex A(1)(a).  
7.93.   Similarly, Resolutions DSFE -002-2018 and DSFE -003-2018 can be defined as decrees or 
requirements and are therefore included in the indicative list of SPS measures contained in the 
second part of Annex  A(1). 
7.94.   In view of the foregoing, the Panel finds that Resolutions DSFE -002-2018 and  
DSFE -003-2018, which  contain the phytosanitary requirements,  constitute phytosanitary measures 
within the meaning of paragraph 1 of Annex  A to the SPS  Agreement.  
7.2.2.3.1.2   Whether Resolutions DSFE -002-2018 and DSFE -003-2018 may, directly or 
indirectly, affect inter national trade  
7.95.   Article  1.1 of the SPS  Agreement states that the "Agreement applies to all sanitary and 
phytosanitary measures which may, directly or indirectly, affect international trade" . Therefore, for 
an SPS measure to be subject to the disciplines of the SPS  Agreement, it must be one that "may, 
directly or indirectly, affect international trade".711 
 
707 Resolution DSFE -003-2018, (Exhibit MEX -4), pp. 4 -5. 
708 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4.  
709 Resolution DSFE -003-2018, (Exhibit MEX -4), pp. 1 -4; Resolution DSFE -002-2018,  
(Exhibit  MEX-103), pp. 1 -4. 
710 It should be noted that Costa Rica maintains that a systems approach programme "consists of  
integrat ing phytosanitary measures  applied from before the crop is planted (including packing facilities, 
transport and exit points) until the entry point and post -entry, as agreed between the exporting country and 
the importing coun try in order to comply with the importing country's appropriate level of protection. The most 
important requirement of the system will be that, at least, two measures are independent with a cumulative 
effect." (Costa Rica's response to Panel question No.  53, para.  1). The Panel observes that no systems 
approach programme with respect to ASBVd exists between Costa Rica and any other country, therefore it only 
has the foregoing explanation of what, for Costa Rica, this systems approach programme involves. (Se e 
Costa  Rica's response to Panel question No.  53, para.  2). 
711 Panel  Report s, Korea – Radionuclides , para.  7.28; and US – Poultry (China) , para.  7.87. WT/DS524/R  
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  7.96.   The panel in Korea – Radionuclides  interpreted the word "may" as "having the potential to", 
noting that for the SPS  Agreement  to be applicable to an SPS mea sure, the measure " must have the 
potential to affect international trade, directly or indirectly".712 
7.97.   Other panels have found that an import ban always affects international trade713, and that 
testing requirements and other administrative procedures that can  delay or deny entry of products 
into a Member likewise affect international trade.714 
7.98.   It should be added that the panel in EC – Approval and Marketing of Biotech Products  noted 
that "it is not necessary to demonstrate that an SPS  measure has an actual effe ct on trade ."715 
7.99.   Mexico  submits that the requirements implemented pursuant to the resolutions directly affect 
free international trade, since Costa  Rica has applied unjustified measures from 2015 onwards.716 
7.100.   Mexico notes that, while it is not necessary to prove that Costa  Rica's phytosanitary 
measures have actual trade effects717, the requirements imposed by Costa  Rica through its 
restrictive measures directly affect international trade, as they are necessary requirements for the 
importation of fresh avocado  fruit from Mexico to Costa Rica that had an immediate and direct effect 
on avocado exports from Mexico . Mexico adds that, following Costa  Rica's implementation of its 
phytosanitary measures in 2015, imports of Mexican avocados to that country stopped718, and that, 
in 2020, the value of imports of that product  has remained at zero .719 Mexico links this to the high 
cost of compliance with Costa  Rica's phytosanitary measures for the export of fresh avocados, which, 
for Mexico, are unsustainable.720 
7.101.   Costa  Rica, for its part , believes that it is clear that what caused Mexico's trade concerns 
and triggered this dispute, given that they have a direct impact on avocado exports, are the 
phytosanitary requirements, which, according to Costa  Rica, are the real measures at issue .721 
Costa  Rica points out that it is compliance with the phytosanitary requirements that allegedly 
imposes high costs on imports, and it is this that affects trade.722 
7.102.   The Panel  notes that the alternative phytosanitary requirements contained  in Resolutions 
DSFE -002-2018 and DSFE -003-2018 constitute a condition for importing avocados into Costa  Rica 
from countries  where ASBVd is present , including Mexico . Failure to meet one of those requirements 
means that countries where ASBVd is present cannot export their avocados to Costa  Rica. As 
phytosanitary requirements that must be satisfied in order for Mexico and other countries to be able 
to export fresh avocado  fruit for consumption to Costa  Rica, the Panel considers that Resolutions 
DSFE -002-2018 and DSFE -003-2018 have altered or modified the import conditions for avocados, 
thus they have had an effect on international trade and, therefore , may affect internati onal trade 
within the meaning of Article  1.1 of the SPS  Agreement . 
7.103.   The Panel also notes that the parties do not appear to disagree on whether the phytosanitary 
requirements in Resolutions DSFE -002-2018 and DSFE -003-2018 may affect international trade, by 
impacting on avocado exports to Costa  Rica. 
7.104.   The Panel therefore finds that Resolutions DSFE -002-2018 and DSFE -003-2018, which 
contain the phytosanitary requirements,  may affect international trade within the meaning of 
Article  1.1 of the SPS  Agreement , thus  the Agreement applies to those resolutions . 
 
712 Panel  Report, Korea – Radionuclides , para.  7.22. 
713 Panel  Report s, Korea – Radionuclides , para.  7.30; and  EC – Hormones (United  States ), para.  8.23. 
714 Panel  Report s, Korea – Radionuclides , para.  7.30; and EC – Approval and Marketing of Biotech 
Products, para.  7.435.  
715 Panel Report, EC – Approval and Marketing of Biotech Products , para.  7.435.  
716 Mexico's comments on Costa Rica's response to Panel question No. 117, para. 9.  
717 Mexico's response to Panel question No. 117, para. 36; comments on Costa Rica's response to 
Panel  question No.  117, paras.  1-2. 
718 Mexico's first written submission, paras.  138-140. See also Mexico's response to Panel question 
No. 117, para.  39. 
719 Mexico's response to Panel question No.  117, para.  39. 
720 Mexico's response to Panel question No.  111, para.  13. 
721 Costa Rica's comments on Mexico's response to Panel question No.  111, para. 3. 
722 Costa Rica's comments on Mexico's response to Panel question No.  111, para.  9. WT/DS524/R  
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  7.2.2.3.1.3   Conclusion on Resolutions DSFE -002-2018 and DSFE -003-2018  
7.105.   Having found that Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the 
phytosanitary requirements,  constitute SPS measures within the meaning of paragraph 1 of Annex  A 
to the SPS  Agreement, and that they may affect international trade, the Panel concludes that these 
resolutions are, individually, SPS measures subject to the SPS  Agreement , pursuant to A rticle 1.1 of 
that Agreement.  
7.2.2.3.2   Reports ARP -002-2017 and ARP -006-2016  
7.2.2.3.2.1   Whether Reports ARP -002-2017 and ARP -006-2016 are SPS measures 
pursuant to paragraph 1 of Annex A to the SPS  Agreement  
7.106.   Mexico  asserts that Reports ARP -002-2017 and ARP -006-2016 are phytosa nitary measures 
on the basis of the SPS  Agreement , since they are applied for the purpose of preventing the 
introduction of ASBVd, even if their nature is not expressly listed in the last part of paragraph  1 of 
Annex A to the SPS  Agreement .723 
7.107.   Mexico conten ds that the PRAs are phytosanitary measures because they were prepared for 
the purpose of identifying and assessing the risk of entry, establishment and spread of ASBVd in 
Costa  Rican territory associated with the importation of fresh avocado  fruit from Mexico, and on the 
basis of these risk analyses Costa  Rica tried to justify the application of the three specific 
phytosanitary measures for the purpose of protecting  the avocado plantations from the risks posed 
by ASBVd, a purpose that is covered by paragra ph 1(a) of Annex A to the SPS  Agreement .724 
7.108.   Mexico asserts that Costa  Rica's risk assessment is a phytosanitary measure for the purposes 
of the SPS  Agreement , since : (i) it is a measure applied to protect  avocado trees in Costa  Rican 
territory from risks arising from the entry, establishment or spread of ASBVd ; and (ii)  the PRAs are 
included in the instruments referred to in the second part of Annex A(1), which contains an indicative 
list, and the requirement is for the measure to reveal  a clear and objective relationship with at least 
one of the purposes set out in subparagraphs (a)  through (d), which, according to Mexico, occurs in 
the present case.725 
7.109.   Mexico adds that the definition in Annex A(1) includes as a phytosanitary measure 
"provisions on re levant statistical methods, sampling procedures and methods of risk assessment", 
so there is no need to assert  that phytosanitary measures must necessarily be aimed at plant health 
protection directly .726 For Mexico, the objective of a PRA is not a neutral element, and in various 
sections of the PRA Costa  Rica emphasizes the objective of protecting plants.727 
7.110.   In Mexico 's view, risk assessments can be viewed as measures because the concept of 
"measure" under the SPS  Agreement  is broad ; that there is nothing in  the text of Annex  A(1) to 
suggest a more restrictive interpretation of the word "measure" in the context of the 
SPS Agreement728; and that any act or omission attributable to a WTO Member can be a measure 
of that Member for purposes of dispute settlement p roceedings.729 
 
723 Mexico's first written submission, para.  131. 
724 Mexico's first written submission, paras.  133 and 135.  
725 Mexico's response to Panel question No.  115, para.  27 (refe rring to Appellate Body Report, 
Australia  – Apples , para.  176).  
726 Mexico's comments on Costa Rica's response to Panel question No.  121, para.  2. 
727 Mexico's comments on Costa Rica's response to Panel question No.  121, para.  4. 
728 Mexico's response to Panel question No.  111, para.  4 (referring to Appellate Body Report, 
Australia  – Apples , para.  181); comments on Costa Rica's response to Panel question No.  113, para.  2 
(referring to Appellate Body Report, Australia  – Apples , para.  181); comments on Costa  Rica's response to 
Panel question No.  114, para.  1 (referring to Appellate Body Report, Australia  – Apples , para.  181).  
729 Mexico's response to Panel question No.  111, para.  4 (citing Appellate Body Report, 
Australia  – Apples , para.  171, in turn referring to Appellate Body Report, US – Corrosion -Resistant Steel Sunset 
Review , para.  81). WT/DS524/R  
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  7.111.   Mexico further submits that the nature of PRAs is that they entail  measures implemented in 
an attempt to justify requirements that restrict, and in the case of Mexico, ban de facto  the 
importation of fresh avocados.730 
7.112.   Mexico adds that the ris k analysis in this dispute is not per se  an instrument that assesses 
"the probability  of entry, establishment or spread" of the disease concerned, but rather is an activity 
specifically designed and undertaken to justify ex post facto  decisions, which resulted in a de facto  
prohibition on the importation of fresh Hass avocados for consumpt ion from Mexico.731 
7.113.   Mexico asserts that in previous cases where PRAs have not been identified as measures per 
se, panels and the Appellate Body have made findings on the consistency of these risk analyses with 
specific provisions of the SPS  Agreement .732 Mexico notes that in Japan – Apples  and 
Australia  – Apples , PRAs were implicitly considered as measures, and that even if the PRA or IRA 
(final risk analysis report) was not identified in any of the measures at issue, the Appellate  Body in 
Australia  – Apples  referred to the panel's finding that the IRA was inconsistent with Article  5.1.733 
7.114.   Costa  Rica, for its part, considers that risk assessments do not in themselves constitute 
phytosanitary measures within the meaning of paragraph 1 of Annex A  to the SPS  Agreement .734 
7.115.   According to Costa  Rica, a risk assessment could not at the same time meet the definition 
of SPS measures in paragraph 1 of Annex A to the SPS  Agreement  and the definition of "risk 
assessment" in paragraph 4 of that Annex735, and th e actual structure of the SPS  Agreement  
suggests that the intention was to keep both categories or concepts separate .736 Costa  Rica submits 
that the category or function that should be assigned to the risk assessment is the one given by its 
own definition a nd in the other provisions referring to it, and it is therefore a search, analysis and 
deliberation process designed to provide a picture of the risk status in the country of importation.737 
7.116.   Costa  Rica asserts that a risk assessment is not an act that can be placed within the concept , 
set forth in Annex A(1),  of "measure applied" for the protection of certain interests .738 Costa  Rica 
asserts that the SPS  Agreement  refers on multiple occasions to terms de rived from the verb "apply" 
in relation to the term "measures", and that in all these instances the Agreement refers to the 
application of measures in the sense that these measures  have tangible effects on the protection of 
SPS interests.739 
7.117.   Costa  Rica states that "applying" means the "implementation" of a measure to obtain a 
"certain effect" ; and that a risk assessment, as an investigation process involving the assessment 
and weighing of probabilities and factual consequences, is not an act that implements something 
specific or that gives rise to specific effects on imports .740 In Costa  Rica's view, it may be the starting 
point for the formulation or development of measures that do so , but a risk assessment does not in 
itself reflect the existence of "applied  measures".741 
7.118.   Costa  Rica also submits that a risk assessment does not fall within one of the categories 
referred to in the second part of Annex A(1) . Costa  Rica states that while this list has an expansive 
and illustrative purpose, the common denominator o f the elements mentioned therein is their link 
 
730 Mexico's comments on Costa Rica's response to Panel question No.  115, para.  5. 
731 Mexico's response to Panel question No.  114, para.  25; comments on Costa Rica's response to 
Panel  question No.  114, para.  3. 
732 Mexico's comments on Costa Rica's response to Panel question No.  112, para.  8. 
733 Mexico's opening statement at the second meeting of the Panel , para.  24; response to Panel question 
No. 113, para.  21 (referring to Appellate Body Report, Australia – Apples , para.  258); comments on Costa 
Rica's response to Panel question No.  113, para.  4. 
734 Costa Rica's response to Panel question No.  115, para.  25; comments on Mexico's response to 
Panel  question No.  115, para.  25. 
735 Costa Rica's response to Panel question No.  115, paras.  18 and 23.  
736 Costa Rica's comments on Mexico's response to Panel question No.  115, para.  22. 
737 Costa Rica's response to Panel question No.  114, para.  15. See also Costa Ric a's response to 
Panel  question No.  115, para.  19. 
738 Costa Rica's response to Panel question No.  115, para.  19. 
739 Costa Rica's response to Panel question No.  115, para.  20. 
740 Costa Rica's response to Panel question No.  115, para.  20; comments on Mexico's response to 
Panel  question No.  115, para.  23. 
741 Costa Rica's response to Panel question No.  115, para.  20. WT/DS524/R  
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  to risk management, which, according to Costa  Rica, is fully consistent with the identification of the 
protection purposes of the "applied" measures, provided for in the first part of paragraph 1, and with 
the need to define risk assessment separately in Annex A(4).742 
7.119.   Costa  Rica further submits that if risk assessments were SPS measures per se , then they 
should be subject to various obligations under the SPS  Agreement , and this would lead to an absurd 
situation  because risk assessments are benchmarks for assessing the validity of the measures . 
Costa  Rica adds that it would make no sense for the obligation under  Article  5.1 to apply to risk 
assessments, since they would then have to be based in turn on a risk ass essment.743 
7.120.   Costa  Rica considers that, under Article  5.1 of the SPS  Agreement , risk assessments should 
be the basis for the measures or the justification on which phytosanitary measures should be based, 
and that it is clear that "risk assessments" must have an identity and nature that is distinct from the 
"measures" .744 In Costa  Rica's view, this provision implicitly attributes to risk assessment the nature 
of a precondition for the adoption of SPS measures .745 Costa  Rica adds that , pursu ant to  the other 
rules of the SPS  Agreement , risk assessment occurs  prior to the adoption of phytosanitary 
measures.746 
7.121.   Costa  Rica submits  that a risk assessment and a phytosanitary measure may be closely 
linked , but are conceptually and functionally distin ct (and separable) ; and that the risk assessment 
is the process of searching for information and knowledge, the outcome of which may or may not 
lead to the adoption of a phytosanitary measure , and the phytosanitary measure is a specific act 
relating to imp orts with the explicit purpose of phytosanitary  protection.747 
7.122.   According to Costa  Rica, risk assessment seeks to  identify the risk and determin e its 
magnitude, and is an investigation process , the end result  of which  must be to obtain particular 
knowledge, regardless of whether or not a specific protection measure is ultimately taken . Costa  Rica 
states  that the phytosanitary measure is a management process aimed at preventing that risk and 
protecting plants from the consequences associated with its occurrenc e, hence the phytosanitary 
measure is defined as a measure "applied" for the protection of the purposes provided for in 
Annex  A(1).748 
7.123.   Costa  Rica further notes that WTO Members have consistently understood that risk 
assessments are not SPS measures within the meaning of paragraph 1 of Annex A to the 
SPS Agreement, and that it shares this understanding.749 
7.124.   Costa  Rica asserts that in order to reach th e ultimate finding that a "measure" is inconsistent 
with Article  5.1 of the SPS  Agreement , a panel should first resolve certain intermediate issues ; and 
that if, for example, a panel concludes that the risk assessment is not appropriate (intermediate 
reaso ning), it may then find that the measure is not based on an appropriate risk assessment and 
is therefore inconsistent with Article  5.1 of the SPS  Agreement  (ultimate finding) .750 Costa  Rica 
argues that in no previous dispute under the SPS  Agreement  has the panel or Appellate Body 
considered "risk assessments" as measures at issue751, and neither have they found – in the 
"Conclusions and recommendations" section of their reports – that a risk assessment is, as such, 
inconsistent with any provision of the SPS  Agreement .752 
 
742 Costa Rica's response to Panel question No.  115, para.  22. 
743 Costa Rica's response to Panel question No.  115, para.  24. 
744 Costa Rica's res ponse to Panel question No.  114, para.  14; comments on Mexico's response to Panel 
question No.  114, paras.  20-21. See also Costa Rica's comments on Mexico's response to Panel question 
No. 116, para.  27. 
745 Costa Rica's comments on Mexico's response to Panel  question No.  114, paras.  20-21. 
746 Costa Rica's response to Panel question No.  114, para.  17. 
747 Costa Rica's response to Panel question No.  121, paras.  39-40; comments on Mexico's response to 
Panel  question No.  122, para.  37. 
748 Costa Rica's response to Panel question No.  121, para.  39; comments on Mexico's response to 
Panel  question No.  122, para.  37. 
749 Costa Rica's response to Panel question No.  113, para.  13. 
750 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  15. 
751 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  13. 
752 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  19. WT/DS524/R  
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  7.125.   First, the Panel  observes that Mexico has challenged Reports ARP -002-2017 and 
ARP-006-2016 as measures at issue, which contain Costa  Rica's ASBVd risk assessments with 
regard, respectively, to the pathway of fresh avocados for consumption from Mexico and to fresh 
avocado  fruit for consumption and avocado plants for planting imported from countries with ASBVd, 
including Mexico, as well as the recommendations for specific phytosanitary measures to be applied . 
The core of Mexico's argument regardin g whether Reports ARP -002-2017 and ARP -006-2016 
constitute a phytosanitary measure within the meaning of paragraph 1 of Annex A to the 
SPS Agreement is that the risk assessment  in those reports  is a phytosanitary measure within the 
meaning of said paragraph.  
7.126.   The Panel notes that this is the first dispute that addresses the issue of whether a risk 
assessment may constitute an SPS measure within the meaning of the SPS  Agreement . In none of 
the pre vious disputes under the SPS  Agreement  that concerned  a risk assessment have the 
complainants identified the risk assessment as a measure at issue, but rather, they have introduced 
the risk assessment into the dispute claiming, inter alia , that the SPS mea sure was not based on an 
assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or 
health, in accordance with Article  5.1 of the SPS  Agreement .753 
7.127.   As detailed  above, "SPS measures relate to a 'protected interest', … which corresponds to 
protection against a specific risk, or preventing or limiting damage from certain causes"754; that a 
fundamental element of the definition is that such a measure must be one "applied to protect" at 
least one of the interests  listed in Anne x A(1) , or "to prevent or limit" damage  specified therein755; 
and that Annex A(1) contains objectives introduced with the word "to", which in relation with the 
infinitive verb "protect" indicates a purpose or intention756, and thus establishes "a required li nk 
between the measure and the protected interest".757 
7.128.   The Panel also recalls that, in order to determine whether a measure has been "applied to 
protect" within the meaning of one of the subparagraphs of Annex A(1), a panel must examine not 
only the stated purposes of the measure, but also the text and structure of the measure, its 
surrounding regulatory context and the way in which it is designed and applied, and that the scrutiny 
of such circumstances must reveal "a clear and objective relationship" betwee n the measure and the 
specific purposes enumerated in that provision.758 
7.129.   The Panel will next consider whether the necessary link exists between Reports 
ARP-002-2017 and ARP -006-2016 and one of the protected interests enumerated in Annex A(1).  
7.130.   Reports ARP -002-2017 and ARP -006-2016 indicate that they were prepared, respectively, 
with the stated purpose of "determining the risk of plant pests associated with the importation of 
fresh avocado  fruit (Persea americana  Mill.) for human consumption from Mexico"759 and of 
"determining the phytosanitary risk associated with the importation of fresh avocado 
(Persea  americana  Mill.) fruit for consumption and plants for planting of the same species, from 
countries where the Avocado sunblotch viroid (ASBVd) pes t is present" .760 Report  ARP-002-2017 
also states that it begins with a review of a phytosanitary policy, and that the phytosanitary policy 
reviewed is the one covering the importation into Costa  Rica of fresh avocados ( Persea  americana  
Mill.) for consumpti on, with the purpose of identifying and evaluating the quarantine pest risk 
associated with the importation of that product.761 
7.131.   As can be seen from their text and structure, Reports ARP -002-2017 and ARP -006-2016 are 
documents prepared by a risk analyst from  the UARP of the SFE of Costa  Rica. The reports provide 
technical and scientific information on the cultivation of avocados and ASBVd, and contain the risk 
analyst's assessment of the probability of entry, establishment and spread after the establishment 
 
753 See EC – Hormones, Australia – Salmon, Japan – Agricultural Products II, Japan – Apples, 
US/Canada – Continued Suspension, Australia – Apples.  
754 Appellate  Body Report, Korea – Radionuclides , para.  5.59. (fn  omitted)  
755 Appellate Body Report, Australia  – Apples , para.  172. 
756 Appellate Body Report, Australia  – Apples , para.  172. 
757 Appellate Body Report, Australia  – Apples , para.  172. 
758 Appellate Body Report, Australia – Apples , para.  173; and Panel  Report , Korea – Radionuclides , 
para. 7.25.  
759 ARP-002-2017, (Exhibit MEX -84), p. 3.  
760 ARP-006-2016, (Exhibit MEX -85), p. 3.  
761 ARP-002-2017, (Exhibit MEX -84), p. 10.  WT/DS524/R  
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  of ASBVd in Costa  Rica, and on the  potential economic consequences, with regard to  the pathway of  
fresh avocados for consumption from Mexico and of fresh avocado fruit  for consumption and avocado 
plants for planting imported from countries with ASBVd, including Mexico, respectively . The report s 
also contain a section on risk management, which contains general recommendations for the SFE 
Directorate , and recommendations on  the application of the specific phytosanitary measures that 
were imposed by Resolutions DSFE -002-2018 and DSFE -003-2018.  
7.132.   Reports ARP -002-2017 and ARP -006-2016 thus contain technical and scientific information 
on the cultivation of avocados and ASBVd, the risk assessment for ASBVd, and also 
recommendations on phytosanitary requirements to be applied as phytosanitary measures, bu t do 
not in themselves impose such phytosanitary requirements.  
7.133.   As noted above, no previous dispute has raised the issue of whether a relationship of the 
type that exists between the risk assessments contained in Reports  ARP-002-2017 and  
ARP-006-2016 and th e protection  of avocados from the risks associated with ASBVd could constitute 
the necessary link between a measure and one of the protected interests listed in Annex  A(1), in 
order that  those risk assessments or the reports  that contain them  can be consid ered phytosanitary 
measures within the meaning of paragraph 1 of Annex A to the SPS  Agreement . 
7.134.   In this Panel 's view, Reports ARP -002-2017 and ARP -006-2016 are clearly linked to 
Costa  Rica's phytosanitary policy to protect avocados from the risks associated with ASBVd . In this 
regard, Reports ARP -002-2017 and ARP -006-2016 may be considered as related to the objective of 
protecting plants (avocados) within Costa  Rican territory from risks arising from the entry, 
establishment or spread of pests, diseases, disease -carrying organisms or disease -causing 
organisms (ASBVd), which corresponds to paragraph 1(a) of Annex A to the SPS  Agreement . 
7.135.   However, as has been stated , the purpose of the reports is to determine the phytos anitary 
risk associated with the importation of fresh avocado  fruit for consumption and avocado plants for 
planting . While t hey recommend measures, their specific purpose  is not to , nor can they alone , 
protect plants (avocados) within Costa  Rican territory  from risks arising from the entry, 
establishment or spread of pests, diseases, disease -carrying organisms or disease -causing 
organisms (ASBVd).  
7.136.   Reports ARP -002-2017 and ARP -006-2016 do not , by themselves , impose the phytosanitary 
requirements, which are t hose that have a clear and objective relationship with the purpose of 
protecting plants  (avocado trees)  from risks arising from the entry, establishment or spread of pests, 
diseases, disease -carrying organisms or disease -causing organisms  (ASBVd) . In contr ast, the 
relationship between the reports and the stated objective is not obvious.  
7.137.   This calls into question  whether the reports can constitute, by themselves or individually, a 
measure "to protect" or, more specifically, "to protect plants" within Costa  Rican territory against 
risks arising from the entry, establishment or spread of pests, diseases, disease -carrying organisms 
or disease -causing organisms, and whether, in this regard, the necessary link exists between the 
measure and the protected interest, so that it can be considered an SPS measure in accordance with 
paragraph 1 of Annex A to the SPS  Agreement . 
7.138.   The Panel also notes that the definition of SPS measures in Annex A(1) begins with the 
phrase "[a]ny measure applied " before proceeding with the objectives listed in that provision . 
7.139.   The Appellate Body in Australia – Apples  noted that a fundamental element of the definition 
of "SPS measure" set out in Annex A(1) is that such a measure must be one "applied to protect" at 
least one of the listed interests or "to prevent or limit" specified damage .762 The Appellate  Body 
explained that the word "applied" in the d efinition of SPS measures points to the application of the 
measure and, thus, suggests that the relationship of the measure and one of the objectives listed in 
Annex  A(1) "must be manifest in the measure itself or otherwise evident from the circumstances  
related to the application of the measure ".763 
 
762 Appellate Body Report, Australia  – Apples , para.  172. 
763 Appellate Body Report, Australia – Apples , para.  172; and Panel  Report , Korea  – Radionuclides , 
para. 7.25. (emphasis added)  WT/DS524/R  
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  7.140.   The Diccionario de la lengua española published by the  Real Academia Española defines 
"aplicar " ("to apply ") as "[e]mplear, administrar o poner en práctica un conocimiento, medida o 
principio, a fin de obtener u n determinado efecto o rendimiento en alguien o algo"  ("[e]mploying, 
administering or implementing knowledge, a measure or principle in order to obtain a given effect 
or output from someone or something") .764 Considering the previous definition , the Panel a grees 
with Costa  Rica in that, in  the context of paragraph 1 of Annex A to the SPS  Agreement , the word 
"apply " means to implement a measure in order to obtain a certain effect.  
7.141.   Mexico asserts that Costa  Rica tries to reduce the meaning of "application" of measures to 
those that have only tangible effects, but that the nature of the PRAs is precisely that they entail 
measures implemented in an attempt to justify requirements that restrict, and in the case of Mexico, 
ban de facto the importation of fresh avocados .765 The Panel notes  that Mexico's assertion refers to 
its argument that this is an activity specifically designed and undertaken  to justify ex post facto  
decisions766, or, in other words, that the PRAs justify the phytosanitary requirements ex post facto. 
However, Mexico has not adequately explained or substantiated this assertion.  
7.142.   In this Panel 's view, Reports ARP -002-2017 and ARP -006-2016 are not, in themselves, a 
measure applied  to protect in the sense of being implemented in order to have the eff ect of 
protect ing avocado  trees. Costa  Rica's risk assessments, which are contained in those reports, do 
not have any "application" in or a specific effect on the protection of avocado  trees. Even though the 
reports recommend the three alternative phytosan itary requirements, in order to have concrete 
effects on the protection of avocado trees, those requirements had to be reflected in Resolutions 
DSFE -002-2018 and DSFE -003-2018.  
7.143.   Consequently, e ven though  the alternative phytosanitary requirements recommende d in the 
reports, but actually imposed through the resolutions, do constitute phytosanitary measures within 
the meaning of paragraph 1 of Annex A to the SPS  Agreement , the reports are not, by themselves , 
measures applied to protect , in the sense of having  the effect of protecti ng avocado  trees. 
7.144.   The Panel further notes that Mexico's argument does not focus on the recommendation of 
the phytosanitary requirements, but rather on the evaluation  of the likelihood  of entry, establishment 
and spread contained in t hese reports constitutes a phytosanitary measure within the meaning of 
paragraph 1 of Annex A to the SPS  Agreement . 
7.145.   The Panel notes that, in Australia – Apples,  Australia contended  that its individual measures 
were not SPS measures because they did not req uire "some action or course of action (including an 
identifiable omission) that a Member may put into practical operation for the purpose of protecting 
against some relevant risk" .767 Australia gave as an example its administrative processes or 
procedures t hat, according to Australia, should be seen as ancillary requirements that, considered 
in isolation and not together with the principal measures, would be meaningless and ineffective for 
achieving any protection from risk.768 
7.146.   The Appellate Body in that case rejected the distinction between ancillary and principal 
measures, recalling that it had interpreted the word "measure" in a broad sense ; that it had rejected 
the notion that only certain types of measures could be challenged in dispute settlement 
proceed ings; and that nothing in the text of Annex A(1) suggests a more restrictive interpretation 
of the word "measure" in the context of the SPS  Agreement .769 
7.147.   The Panel agrees with the Appellate Body that the word "measure" must be interpreted 
broadly, but this does not mean that such measures should not also comply with the specific features 
of the definition of SPS measures in paragraph 1 of Annex A to the SPS  Agreement . 
 
764 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/aplicar . 
765 Mexico's comments on Costa Rica's response to Panel question No.  115, para.  5. 
766 Mexico's response to Panel question No.  114, para. 25; comments on Costa Rica's response to 
Panel  question No.  114, para.  3. 
767 Appellate Body Report, Australia  – Apples , para.  180. 
768 Appellate Body Report, Australia  – Apples , para.  180. 
769 Appellate Body Report, Australia  – Apples , para.  181. WT/DS524/R  
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  7.148.   In addition, this Panel notes that Australia submitted that "ancillary" measures are not 
covered by the definition of SPS measures, since they refer to measures that "support, verify and 
operationalise" other, principal measures .770 The distinction made by Australia was between 
measures that "actively" reduce risk s and measures that do not .771 The Panel observes that this case 
involved "activities or requirements, such as administrative processes or procedures that have no 
operation other than to enhance the efficacy of some active mechanism for protecting animal or 
plant life or health from risk" .772 The Appellate Body itself stated that the last sentence of Annex  A(1) 
refers to laws, decrees, regulations, requirements and procedures, in general, without limiting in 
any sense the scope of these instruments or exempting certain types of measures, and  noted that 
Australia had not objected to the panel's classification of its measures as regulations, requirements 
or procedures.773 
7.149.   This Panel is of the view that the situation of a risk assessment is different from that of the 
activities or requirements an alysed in Australia – Apples , since such activities or requirements can 
be implemented in order to obtain a certain effect, and if this effect is to support, verify or make 
operational certain measures that directly seek to reduce a phytosanitary risk, the n these activities 
or requirements have a clear and objective relationship with the purpose of protecting against the 
risk under consideration . 
7.150.   The second sentence of paragraph 1 of Annex A to the SPS  Agreement , as explained, states 
that: 
Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, 
requirements and procedures including, inter alia, end product criteria ; processes and 
production methods ; testing, inspection, certification and approval procedures ; 
quarantine treatments including relevant requirements associated with the transport of 
animals or plants, or with the materials necessary for their survival during transport ; 
provisions on relevant statistical methods, sampling procedures and methods of risk 
assessment ; and packaging and labelling requirements directly related to food safety.  
7.151.   The Appellate Body has stated that the word "relevant" in this second sentence is a reference 
back to the preceding sentence in Annex A (1), that is , to the list of specific  purposes that are the 
defining characteristic of every  SPS measure, and that the words "include" and "all", which also 
introduce  the list of instruments, suggest that the list is both illustrative and expansive . For the 
Appellate  Body, therefore, "taken t ogether, the words 'include ' and 'all relevant ' … suggest that 
measures of a type not expressly listed may nevertheless constitute SPS measures when they are 
'relevant ', that is, when they are 'applied ' for a purpose that corresponds to one of those listed  in 
subparagraphs (a) through (d)."774 
7.152.   Risk assessments are not explicitly mentioned in the list of instruments included in the 
second sentence of paragraph 1 of Annex A to the SPS  Agreement . Although th at list refers to 
relevant risk assessment methods, it does not appear to be concerned with risk assessments 
prepared for a specific pathway or pathways, unlike Annex A(4) , as will be expounded  below . 
However, this would not be decisive, since this is only an indicative list, not a closed one, and 
measures applied with a purpose corresponding to one of those enumerated in 
subparagraphs  (a) through (d) of the same paragraph would be relevant.  
7.153.   It is also important to highlight  that risk assessment has its  own definition in Annex  A, 
"Definitions", paragraph 4, which is separate from the definition of an SPS measure given in 
paragraph  1 of the same Annex . Despite the extensive list of instruments that can be considered an 
SPS measure, the inclusion of a spec ific definition for risk assessment in the "Definitions" section of 
Annex A calls into question  whether a risk assessment is an instrument that could per se  be 
considered a phytosanitary measure within the meaning of Annex A(1), and suggests that it is an 
instrument that is important in the context of the SPS  Agreement  but distinct from a phytosanitary 
measure within the meaning of Annex A(1).  
 
770 Panel  Report , Australia – Apples , para.  7.105.  
771 Panel  Report , Australia – Apples , para.  7.106. 
772 Appellate Body Report, Australia  – Apples , para.  180. 
773 Appellate Body Report, Australia  – Apples , para.  181. 
774 Appellate Body Report, Australia  – Apples , para. 175. WT/DS524/R  
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  7.154.   Mexico also submits  that in previous cases where PRAs have not been identified as measures 
per se , panels and the A ppellate Body have made findings on the consistency of these risk analyses 
with specific provisions of the SPS  Agreement775, including in Japan – Apples  and Australia  – Apples , 
and point s out in particular that the Appellate Body in Australia – Apples  referred to the panel's 
finding that the IRA was inconsistent with Article  5.1.776 
7.155.   Costa  Rica, for its part, states that under Article  5.1 of the SPS  Agreement , if a panel 
concludes that the risk assessment is not appropriate (intermediate reasoning), it may then find that 
the measure is not based on a proper risk assessment and is therefore inconsistent with Article  5.1 
(ultimate finding) .777 Costa  Rica submits that, however, in no previous dispute under the 
SPS Agreement has the panel or Appellate Body consid ered "risk assessments" as measures at 
issue778, or ever found that a risk assessment is, in itself, inconsistent with any provision of the 
SPS Agreement.779 
7.156.   Without seeking to advance its position with respect to Mexico's substantive claims 
concerning the  risk assessments, the Panel will analyse whether Mexico's above -mentioned  
assertions that panels and the Appellate Body have made findings on the consistency of PRAs with 
specific provisions of the SPS  Agreement  are correct , in particular with Articles 5.1 and 5.2 of the 
SPS Agreement . 
7.157.   In Australia – Apples , the panel analysed the IRA and found  that, with respect  to its analysis 
of the likelihood  of entry, establishment and spread of fire blight, European canker and apple 
leafcurling midge (ALCM) and the potential  consequences associated with their entry, establishment 
or spread in Australia, Australia's IRA was not a " proper " or "appropriate" risk assessment in 
accordance with the provisions of Article  5.1 and paragraph 4 of Annex A to the SPS  Agreement .780 
The panel indicated that, accordingly , Australia's requirements  regarding fire blight, European canker 
and ALCM on New  Zealand  apples were inconsistent  with Articles 5.1 and 5.2 of the 
SPS Agreement .781 
7.158.   Furthermore, the panel found that, because of the methodological flaws that magnified the 
assessment of risk, Australia's IRA was not a proper risk assessment within the meaning of 
Article  5.1 and paragraph 4 of Annex  A to the SPS  Agreement . Accordingly it  found that, because of 
these flaws, Australia's requirements  regarding fire blight and European canker on New  Zealand 
apples were inconsistent  with Articles 5.1 and 5.2 of the SPS  Agreement .782 In its conclusions and 
recommendation, the panel stated that Australia's measures at issue regarding fire blight , 
European  canker and ALCM, as well as the requirements identified by New  Zealand  as "general" 
measures that were linked to all three pests at issue in that dispute, were inconsistent with 
Articles  5.1 and 5.2 of the SPS  Agreement .783 
7.159.   The Appellate Body in Australia – Apples  referred to the panel's consideration that the faults 
it found with the IRA's reasoning were numerous and serious enough to render the IRA inconsistent 
with Article  5.1 of the SPS  Agreement .784 However, in the same paragraph, the Appellat e Body 
clarified that it was a question of whether a comprehensive analysis of all the steps and factors 
examined could be sufficient to determine whether various flaws  were, when taken together, serious 
enough "to render a risk assessment one that does no t constitute a proper risk assessment within 
the meaning of Article  5.1 of the SPS  Agreement ."785 This is consistent with the Appellate Body's 
statement that "the Panel found that the IRA contained certain methodological flaws that magnified 
the risk assess ed and that, because of these flaws, the IRA was not a proper risk assessment within 
 
775 Mexico's comments on Costa Rica's response to Panel question No.  112, para.  8. 
776 Mexico's opening statement at the second meeting of the Panel; response to Panel question No.  113, 
para. 21 (referring to Appellate Body Report, Australia – Apple s, para.  258); comments on Costa Rica's 
response to Panel question No.  113, para.  4. 
777 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  15. 
778 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  13. 
779 Costa  Rica's comments on Mexico's response to Panel question No.  113, para.  19. 
780 Panel  Report , Australia – Apples , paras.  7.471, 7.778 and 7.886.  
781 Panel  Report , Australia – Apples , paras.  7.472, 7.779 and 7.887.  
782 Panel  Report , Australia – Apples , paras.  7.510 and 7.781.  
783 Panel  Report , Australia – Apples , para.  8.1. 
784 Appellate Body Report, Australia  – Apples , para.  258. 
785 Appellate Body Report, Australia  – Apples , para.  258. WT/DS524/R  
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  the meaning of Article  5.1 of the SPS  Agreement ."786 The Appellate Body concluded that the panel 
did not err in finding that the IRA was not a proper risk assessment within  the meaning of Article  5.1 
and paragraph 4 of Annex A to the SPS  Agreement , and confirmed that Australia's SPS measures 
were inconsistent with Articles 5.1 and 5.2.787 
7.160.   Similarly, the panel in Japan – Apples  found  that Japan's PRA did not meet the requirements 
of a risk assessment within the meaning of Article  5.1, as defined in paragraph 4 of Annex  A to the 
SPS Agreement , and that, in light of its finding that Japan's PRA did not amount to a risk assessment 
within  the meaning of Article  5.1, concluded, as a consequence, that Japan's measures were not 
based on a risk assessment .788 The Appellate Body upheld this finding of the panel, stating that, 
because the PRA was not a risk assessment within the meaning of the SP S Agreement , it followed, 
as the panel had found, that Japan's phytosanitary measure was not based on a risk assessment as 
required by Article  5.1 of the SPS  Agreement .789 
7.161.   Hence, considering the analysis under Article  5.1 in the aforementioned disputes and in other 
previous disputes790, this Panel agrees with Costa  Rica that in no previous dispute under the 
SPS Agreement  has the panel or Appellate Body considered "risk assessments" as measures at 
issue.791 This is made more evident when reading Article  5.1 of the SPS  Agreement , which provides 
that "Members shall ensure that their sanitary or phytosanitary measures are based on an 
assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or 
health, taking into account risk asse ssment techniques developed by the relevant international 
organizations ." The question of whether a risk assessment was conducted as required by Article  5.1 
of the SPS  Agreement  is not a question of whether the risk assessment is a phytosanitary measure 
consistent with said Article.  
7.162.   The Panel agrees with the interpretation that the definition of "sanitary or phytosanitary 
measure" within the meaning of paragraph 1 of Annex A to the SPS  Agreement  should be read in a 
broad manner, and does not rule out the po ssibility that an instrument containing a risk assessment 
may have aspects that would allow it to fall within the definition of an SPS measure . However, in 
view of all the foregoing, the Panel disagrees with  Mexico's argument that Reports ARP -002-2017 
and ARP-006-2016, which contain the relevant risk assessments in this dispute, should be 
considered, individually, as an SPS measure within the meaning of paragraph 1 of Annex  A to the 
SPS Agreement.  
7.163.   In light of the foregoing, the Panel finds that Mexico has failed to demonstrate that Reports 
ARP-002-2017 and ARP -006-2016 constitute, individually, phytosanitary measure s within the 
meaning of paragraph 1 of Annex A to the SPS  Agreement . 
 
786 Appellate Body Report, Australia  – Apples , para.  255. 
787 Appellate Body Report, Australia – Apples , paras.  261-262. 
788 Panel  Report , Japan – Apples , paras.  8.290 -8.291.  
789 Appellate Body Report, Japan – Apples , para.  216. 
790 In EC – Hormones , the Appellate Body upheld the panel's conclusion that the import ban was not 
based on a risk assessment within the meaning of Articles 5.1 and 5.2, and therefore was inconsistent with 
Article  5.1. (Appellate Body Report, EC – Hormones , para.  208).  
In Australia – Salmon , the Appellate Body stated that the final report (the PRA report) did not constitute 
a proper risk assessment within the meaning of Article 5.1 and the first definition in Annex A(4), and concluded 
that the measure at issue, i.e. the import  prohibition on fresh, chilled or frozen salmon, was not based on a 
risk assessment as required by Article 5.1 of the SPS Agreement, and, therefore, that Australia had acted 
inconsistently with Article 5.1 of the SPS Agreement. (Appellate Body Report, Australia – Salmon , 
paras.  135-136 and 279).  
In Japan – Agricultural Products II , the Appellate Body observed that the risk assessment did not 
evaluate the likelihood of entry, establishment or spread of the pest in question according to the SPS measures 
that might be applied within the meaning of Article 5.1, and concluded that the phytosanitary measure, i.e. the 
varietal testing requirement, was inconsistent with Article 5.1. (Appellate Body Report, Japan – Agricultural 
Products II , paras.  113-114 and 143).  
791 Costa Rica's comments on Mexico's response to Panel question No.  113, para.  13. WT/DS524/R  
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  7.2.2.3.2.2   Whether Reports ARP -002-2017 and ARP -006-2016 may, directly or 
indirectly, affect international trade  
7.164.   Mexico  submits that the PRAs affect international trade or, as the case may be, may affect 
trade directly or indirectly.792 
7.165.   Mexico states that the PRAs indirectly affect internati onal trade given the close relationship 
that they have with the phytosanitary requirements imposed by Costa  Rica.793 Mexico adds that 
presuming that the PRAs do not affect trade per se  would imply believing unduly that they are not 
subject to the applicatio n of the SPS  Agreement  or that they are not relevant to the present dispute, 
which according to Mexico is incorrect.794 
7.166.   In its comments on Costa  Rica's responses to the Panel's questions following the Panel's 
second meeting with the parties, Mexico reiterat es that the PRAs indirectly affect international trade 
given their close relationship with phytosanitary requirements, and points out that, to the extent 
that the PRAs "facilitate" the ex post  justification of requirements, they indirectly affect internati onal 
trade.795 
7.167.   Mexico argues that the PRAs constitute an indirect impact on international trade, since they 
are designed in such a way that the SFE concluded the existence of a risk that was not based on 
scientific evidence and , therefore , cannot be justifi able. Mexico adds that the PRAs have the potential 
to affect trade indirectly, since they recommended the implementation of certain requirements and 
reach ed conclusions that, when considered by the authority at the moment  of defining risk 
management, hampe red international trade , and, in the case of Mexico, banned de facto  the 
importation of fresh avocados for consumption . For Mexico , if the risk analyst had not reached the 
conclusions he did, he would not have made the recommendations to the SFE, which resulted in the 
entire trade in fresh avocados between Costa  Rica and Mexico  coming to a halt.796 
7.168.   Costa  Rica, for its part, asserts that according to the standard of the effect on trade 
establis hed by Article  1.1 of the SPS  Agreement , in the sense of modifying  the conditions of 
competition, Mexico has failed to demonstrate that the risk assessments fulfil this requirement.797 
7.169.   Costa  Rica submits that Mexico does not set out  why the PRAs, as separat e measures, may 
affect international trade798, it has failed to demonstrate that the risk assessments may affect 
international trade, either directly or indirectly, and has not even attempted to provide some kind 
of reasoning in this regard.799 
7.170.   Costa  Rica states that Mexico recognizes that the PRAs do not affect trade per se800 and has 
decided that it does not need to demonstrate the individual impact of the challenged measures, since 
it considers that all of them operate as an inseparable whole , and that, in any case, the impact of 
the requirements would satisfy the requirement of impact on trade with respect to the whole.801 
7.171.   Costa  Rica also states that the risk assessments only reflect processes of consideration ; and 
that, by their very nature, a re not likely to affect, directly or indirectly, international trade within the 
meaning of Article  1.1 of the SPS  Agreement .802 Costa  Rica considers that a risk assessment is not 
a factor that is likely to undermine competitive opportunities for imports ; and that the risk 
 
792 Mexico's response to Panel question No.  100, para.  124. 
793 Mexico's response to Panel question No.  100, para.  125. 
794 Mexico's response to Panel question No.  100, para.  125; c omments on Costa Rica's response to 
Panel  question No.  117, para . 3. 
795 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  4. 
796 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  5. 
797 Costa Rica's response to Panel question No.  117, para.  34. See also Costa Rica's comments on 
Mexico's response to Panel question No.  120, para.  36. 
798 Costa Rica's first written submission, para.  5.2 and fn  94; closing statement at the second meeting of 
the Panel, para.  1.2. 
799 Costa Rica's second written submission, para.  2.9; response to Panel question No.  117, para.  32; 
comments on Mexico's response to Panel question No.  117, para.  29. 
800 Costa Rica's second written submission, para.  2.9; response to Panel question No.  117, para.  32; 
comments on Mexico's response to Panel question No.  117, para.  29. 
801 Costa Rica's response to Panel question No.  117, para.  32. 
802 Costa Rica's response to Panel question No.  112, para.  3. WT/DS524/R  
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  assessment is an investigative process that ultimately evolves into a report, which does not impose 
phytosanitary requirements applicable to imports, and hence does not deny opportunities of access 
to imported products.803 
7.172.   For Costa  Rica, to affect international trade directly or indirectly, a measure must be capable 
of altering or undermining competitive opportunities for imports, and if, by its nature, a measure 
does not even have the capacity to cause such changes , it cannot be considered to be a measure 
that directly or indirectly affects international trade within the meaning of Article  1.1 of the 
SPS Agreement.804 
7.173.   The Panel  has found that Mexico has failed to demonstrate that Reports ARP -002-2017 and 
ARP-006-2016 constitute, individually,  phytosanitary measures within the meaning of paragraph 1 
of Annex A to the SPS  Agreement . While the conditions for the  applicability of the SPS  Agreement  
are cumulative, in order to be exhaustive in its analysis, the Panel will address Mexico's arguments 
as to whether the reports may, directly or indirectly, affect international trade.  
7.174.   The Panel notes  that in previous disputes under the SPS  Agreement  there has not been much 
controversy about the condition that SPS measures "may, directly or indirectly, aff ect international 
trade", so this phrase has not been discussed extensively by other panels or the Appellate Body.  
7.175.   The term "affect" has been interpreted in the context of other covered agreements . The 
Appellate Body has stated that "[t]he ordinary meaning  of the word 'affecting ' implies a measure 
that has 'an effect on ', which indicates a broad scope of application."805 In addition, in the context 
of Article  I:1 of the  General Agreement on Trade in Services  (GATS ), the Appellate Body in 
EC – Bananas III  added that "[t]his interpretation is further reinforced by the conclusions of previous 
panels that the term 'affecting ' in the context of Article  III of the GATT [1947] is wider in scope than 
such terms as 'regulati ng' or 'governing '".806 The panel in China – Publications and Audiovisual 
Products  considered that "[t]he word 'affecting ' covers not only measures which directly regulate or 
govern the sale of domestic and imported like products, but also measures which create incentives 
or disincentives with respect to the sale, offering for sale, purchase, and use of an imported product 
'affect' those activities."807 
7.176.   The Panel considers that the broad interpretation given to the word "affect" under other 
covered agreements, in the sense of  denot ing a measure that has "an effect on", may also be 
relevant for the purposes of Article  1.1 of the  SPS Agreement .808 
7.177.   In Article  1.1 of the SPS  Agreement , the term "affect " is accompanied by the words "may " 
and "directly or indirectly ". The Diccionario de la lengua española of the  Real Academia Española 
defines " poder " ("be able to ") as "tener expedita la facultad o potencia de hacer algo " ("have the 
ready ability or power to do something") or "ser contingente o posible que suceda algo " ("be 
conceivable or possible that something happens")809, and " indirectamente " ("indirectly") as "que no 
 
803 Costa Rica's response to Panel question No.  117, para. 33. 
804 Costa Rica's comments on Mexico's response to Panel question No.  117, para.  28. 
805 Appellate Body Reports, EC – Bananas III , para.  220 (in the context of Article I:1 of the General 
Agreement on Trade in Services (GATS)); and US – FSC (Article 21.5 – EC), paras.  209-210 (in the context of 
Article III:4 of the GATT  1994). 
806 Appellate Body Report, EC – Bananas III , para.  220 (referring t o Panel  Report s, EC – Bananas III 
(Ecuador) ; EC – Bananas III (Mexico) ; and EC – Bananas III (US) , para.  7.281).  
807 Panel  Report , China – Publications and Audiovisual Products,  para. 7.1450.  
808 While the Panel is mindful that caution must be exercised when r eferring to similar words and 
phrases in other provisions of the covered agreements for the purpose of determining the meaning of a 
particular word or phrase, this Panel agrees with the panel in Australia – Apples  that, because Annex A(1) to 
the SPS  Agreem ent and, in the present case, Article III:4 of the GATT  1994 and Article I:1 of the GATS form 
part of the same treaty by virtue of Article II:2 of the WTO  Agreement, each constitutes context relevant to the 
interpretation of the others. (Appellate Body Rep ort, Australia – Apples,  fn 285 to para.  173).  
809 Diccionario de la lengua española, Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/poder . The English version of the SPS Agreement uses the term  "may", which is defined as 
"have the ability or power to", "have the possibility, opportunity, or suitable conditions to; be likely to". 
(The Shorter Oxford English Dictionary , A. Stevenson (ed.), Oxford University Press, 2007, Vol. II). The French 
versio n uses the phrase " peuvent, directement ou indirectement, affecter le commerce international ". WT/DS524/R  
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  va rec tamente a un fin, aunque se encamine a él " ("that does not go straight to an end, although it 
points to it") .810 
7.178.   As has been explained, the panel in Korea – Radionuclides  interpreted the word " may" as 
"have the potential to ", stating that for the SPS  Agreem ent to be applicable to an SPS measure, the 
measure " must have the potential to affect international trade, directly or indirectly" .811 This Panel 
agrees with this interpretation.  
7.179.   This Panel considers that the terms "may affect" and "directly or indirectly" indicate that this 
second condition for the applicability of the SPS  Agreement  could encompass a broad range of 
potential effects on international trade . However, in this Panel's  view, in order to give meaning to 
the second condition for the applicability of the SPS  Agreement , the complainant must demonstrate 
that there is some potential or possibility for the SPS measure to exert an effect, directly or indirectly, 
on internationa l trade . For this reason, the Panel will examine whether Mexico has demonstrated 
that Reports  ARP-002-2017 and ARP -006-2016 have the potential to produce an effect, either 
directly or indirectly, on international trade.812 
7.180.   It should be noted that there is n o need to demonstrate actual effects on international trade . 
In this regard, th is Panel agrees with the panel in EC – Approval and Marketing of Biotech Products  
that "it is not necessary to demonstrate that an SPS measure has an actual effect  on trade."813 
7.181.   As the Panel noted  in paragraph 7.102 above, the phytosanitary requirements set forth in 
Resolutions DSFE -002-2018 and DSFE -003-2018 constitute a condition for import ing avocados into 
Costa  Rica from countries where  ASBVd is presen t, including Mexico, and 
Resolutions  DSFE -002-2018 and DSFE -003-2018 have altered or modified the import conditions for 
avocados, thus they  have had a n effect on international trade and , therefore , may affect 
international trade within the meaning of Article  1.1 of the  SPS Agreement . 
7.182.   The Panel notes that Mexico's argument that Reports  ARP-002-2017 and ARP -006-2016 
indirectly affect international trade is based on the relationship between these reports and 
Resolutions DSFE -002-2018 and DSFE -003-2018. In other words, the effects on international trade 
to which Mexico refers arise from the phytosanitary requirements actually imposed by 
Resolutions  DSFE -002-2018 and DSFE -003-2018.  
7.183.   In this Panel's view, throughout the proceedings, Mexico referred to the relationship between 
Reports ARP-002-2017 and ARP -006-2016 and Resolutions  DSFE -002-2018 and DSFE -003-2018, 
but failed to explain how the relationship between said resolutions and the reports implies that 
Reports  ARP-002-2017 and ARP -006-2016 may in themselves, or individually, have any effect on 
international trade, even indirectly.  
7.184.   At its last opportunity in the proceedings, Mexico argued that the PRAs indirectly affect 
international trade given the close relationship between them and the phytosanitary requirement s, 
stating that, to the extent that  the PRAs "facilitate" the ex post  justification of the requirements, 
they indirectly affect international trade .814 However, Mexico has failed to  adequately explain or 
substantiate  its assertion that  the PRAs facilitate t he ex post  justification of the requirements.  
7.185.   Also at its last opportunity in the proceedings, Mexico argued that the PRAs constitute an 
indirect effect  on international trade, since they are designed in such a way that the SFE concluded 
the existence of a  risk that was not based on scientific evidence and , therefore , cannot be 
justifiable.815 
7.186.   The Panel considers that the question of whether the phytosanitary requirements are based 
on scientific evidence is an issue relating to the consistency of the phytosa nitary measures with the 
 
810 Diccionario de la lengua española, Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/indirecto . 
811 Panel  Report, Korea – Radionuclides , para.  7.22. (emphasis added)  
812 Panel  Report s, Korea – Radionuclides , para.  7.22; EC – Hormones (Canada) , para.  8.39; 
EC – Hormones (US) , para.  8.36; and EC – Approval and Marketing of Biotech Products , para.  7.2554.  
813 Panel  Report , EC – Approval and Marketing of Biotech Products , para.  7.435. (emphasis added)  
814 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  4. 
815 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  5. WT/DS524/R  
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  relevant obligations of Articles 5 and 2.2 of the SPS  Agreement , and not to the applicability of the 
Agreement  to a measure . The Panel will conduct the relevant analysis  by addressing Mexico's claims 
in the context of these Articles . 
7.187.   In certain situations, it may be necessary to analyse some elements relating to the 
examination of the consistency of a measure at issue with the provisions of one of the covered 
agreements invoked at an early stage of the Panel's analysis in which the measures at issue are 
determined .816 In this case, the Panel does not consider it appropriate to address  prematurely 
Mexico's question ing of the scientific basis for the risk assessments, as this  does not answer  the 
question of whether the reports can, individually, exert any effect  on international trade.  
7.188.   Mexico also added at its last opportunity in the proceedings that the PRAs have the potential 
to affect trade indirectly, since they recommende d the implementation of certain requirements and 
reached conclu sions that, when considered by the authority at the moment of  defining risk 
management, hampered international trade and, in the case of Mexico, banned de facto  the 
importation of fresh avocado s for consumption . Mexico asserts that if the risk analyst had not 
reached the conclusions he did, he would not have made the recommendations to the SFE, which 
resulted in the entire trade in fresh avocados between Costa  Rica and Mexico  coming to a halt .817 
7.189.   The Panel disagrees with Mexico's argument . The Panel considers that, even though the 
reports recommend the three alternative phytosanitary requirements, such reports do not , by 
themselves , individually, have the potential to affect, directly or indirectly, international trade, which 
Resolutions DSFE -002-2018 and DSFE -003-2018 do and through which  the recommended 
phytosanitary requirements were actually imposed.  
7.190.   Even though the alternative phytosanitary requirements recommended in the reports and 
actually imposed through the resolutions did affect international trade, the reports were unable 
individually in themselves to have an impact on international trade, either directly or indirectly.  
7.191.   While it may be true that if the risk analyst had not reach ed the conclusions that he in fact 
reached, he would not have made the recommendations of the three alternative requirements, it is 
also true that, without the imposition of Resolutions DSFE -002-2018 and DSFE -003-2018, these 
recommendations would have rema ined mere recommendations.  
7.192.   The Panel considers that the impact on international trade that Mexico has referred to during 
the proceedings stems from the imposition of the phytosanitary requirements through the 
resolutions, and not from the completion or issuance of the reports with the recommendations made 
by the risk analyst . Even if the recommendations presented in the reports were taken into account  
when  determining the requirements to be imposed, these reports , by themselves or individua lly, did 
not have any effect on international trade . Without any other action being taken, i.e. the imposition 
of the phytosanitary requirements at issue in this dispute through the resolutions, there would be 
no effect, direct or indirect , on internationa l trade, even with the existence of the reports.  
7.193.   While this Panel does not rule out the possibility of reports existing that contain risk 
assessments with aspects that may affect, directly or indirectly, international trade, the Panel 
considers that Mexico  has failed to demonstrate that Reports ARP -002-2017 and ARP -006-2018 may 
individually affect international trade, even indirectly.  
 
816 Such a situation arose in Russia – Railway Equipment , in which the existence of an overarching 
unwritten and systematic measure was being discussed. The Appellate Body stated that the rationale behind 
the suspensions and rejections of imports of railway products related to the impossibility for the relevant 
organization (FBO) to assess conformity of the complainant's railway products with the respondent's relevant 
technical reg ulations due to the security situation in the complainant's territory. The Appellate Body considered 
that the panel had examined  the consistency of components of the alleged measure (with the Agreement on 
Technical Barriers to Trade (TBT  Agreement )) only insofar as the justification underlying their consistency 
would lead to the conclusion that these decisions were taken independently of each other. The Appellate Body 
said that the panel's focus on the rationale underlying the instruction s and decisions formed an important part 
of its analysis as to the existence of the unwritten measure in the particular circumstances of the case, in 
addition to the complainant's description of the alleged measure as one that contained in itself an elemen t of 
inconsistency. (Appellate Body Report, Russia – Railway Equipment , paras.  5.240 and  5.242).  
817 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  5. WT/DS524/R  
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  7.194.   In view of the foregoing, t he Panel therefore finds that Mexico has failed to demonstrate that 
Reports  ARP-002-2017 and ARP -006-2016 may by themselves, individually , affect, directly or 
indirectly, international trade, and so Mexico has failed to demonstrate that these reports fulfil the 
condition of Article  1.1 of the SPS  Agreement  for the provisions of the SPS  Agreement  to be  
applicable to them as individual SPS measures.  
7.2.2.3.2.3   Conclusion regarding Reports ARP -002-2017 and ARP -006-2016  
7.195.   The Panel has found that Mexico has failed to demonstrate that Reports ARP -002-2017 and 
ARP-006-2016 constitute, individually, SPS measures in accordance with the definition in 
Annex  A(1); and that Mexico has also failed to demonstrate that said reports may individually affect, 
directly or indirectly, international trade within the meaning of Article  1.1 of the SPS  Agreement . In 
light of the fore going, the Panel concludes that Mexico has failed to demonstrate that Reports 
ARP-002-2017 and ARP -006-2016 are SPS measures to which, individually, the SPS  Agreement  is 
applicable.  
7.2.2.3.3   Manual NR -ARP-PO-01_M -01 
7.2.2.3.3.1   Whether Manual NR -ARP-PO-01_M -01 is an SPS measur e pursuant to 
paragraph 1 of Annex A to the SPS  Agreement  
7.196.   Mexico  claims that Manual NR -ARP-PO-01_M -01 is a phytosanitary measure pursuant to 
paragraph 1 of Annex A to the SPS  Agreement .818 
7.197.   Mexico states that the manual, as the instrument from which the other measures derive, 
pursues the objective set out in subparagraph (a), i.e. it is an instrument designed to protect plant 
life or health within Costa  Rica's territory from risks arising from the entry, establishme nt or spread 
of pests .819 Mexico also claims that the manual may be classified as a "method of risk assessment" 
because it was developed to guide the risk analyst in conducting a PRA .820 According to Mexico, the 
manual falls within one of the categories of m easures listed in the last part of paragraph 1 of Annex  A 
to the SPS  Agreement  and is applied to protect plant life or health, which means that there is a link 
between the nature of the measure and its objective.821 
7.198.   Mexico states  that the manual is an instr ument developed by the government itself and 
applied by the SFE822 to protect the objective described in Annex A(1)(a), and that this instrument 
was used specifically to attempt to justify requirements that restrict, and in the case of Mexico, 
prohibit de facto the importation of fresh avocados for consumption, without there being sufficient 
scientific evidence to conclude that a risk exists .823 Mexico adds that the manual affected the risk 
analyst's assessment and reasoning, and was designed so that the PRAs would come to 
pre-determined conclusions that would justify the imposition of trade -restrictive measures.824 
7.199.   Costa  Rica, for its part , does not consider Manual NR -ARP-PO-01_M -01 to be a 
phytosanitary measure within the meaning of Annex A(1).825 
7.200.   Costa  Rica asserts  that the manual is a regulatory framework in the abstract intended to 
guide the work of a risk analyst where a risk analysis is required for a particular case, but that it 
does not constitute a phytosanitary measure . Costa  Rica adduces that it is not a measure "applied" 
to protect a phytosanitary interest against a specific risk arising from imports, and does not 
constitute per se  a measure that affects imports in the way that a risk management measure does .826 
 
818 Mexico's response to Panel question No.  120, para.  46. 
819 Mexico's response t o Panel question No.  120, para.  48. 
820 Mexico's first written submission, para.  136; response to Panel question No.  120, para.  49. 
821 Mexico's first written submission, para.  136. 
822 Mexico's response to Panel question No.  120, para.  51; comments on Costa Ric a's response to Panel 
question No.  120, para.  1. 
823 Mexico's comments on Costa Rica's response to Panel question No.  120, para.  1. 
824 Mexico's comments on Costa Rica's response to Panel question No.  120, para.  2. 
825 Costa Rica's response to Panel question No.  119, para.  37; comments on Mexico's response to 
Panel  question No.  118, para.  30; comments on Mexico's response to Panel question No.  119, para.  33. 
826 Costa Rica's response to Panel question No.  120, para.  38; comments on Mexico's response to 
Panel  question No.  120, para.  35. WT/DS524/R  
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  According to Costa  Rica, the "purpose" of the manual is not to protect as such, but instead to guide 
the analyst in preparing PRAs.827 
7.201.   Costa  Rica expresses serious doubts that the phrase "provisions on relevant statistical 
methods, sampling procedures and methods of risk assessment",  contained in the second paragraph 
of paragraph 1 of Annex A to the SPS  Agreement , is referring to manuals used internally to prepare 
PRAs. Costa  Rica notes that all the procedures listed in this paragraph cover aspects relating to the 
application or manag ement of SPS measures once they are adopted, and not aspects relating to the 
assessment process that takes place beforehand to determine whether or not a particular risk exists 
in the first place.828 
7.202.   The Panel will analyse below whether the required link ex ists between 
Manual  NR ARP-PO-01_M -01 and one of the protected interests listed in Annex A(1) . Accordingly, 
the Panel recalls that it must examine not only the stated objectives of the measure, but also the 
text and structure of the measure, its surroundin g regulatory context and the way in which it is 
designed and applied, and that scrutiny of these  circumstances must reveal "a clear and objective 
relationship" between the measure and the specific purposes enumerated in Annex A(1).829 
7.203.   Mexico has identified that the manual's purpose is that set out in Annex A(1)(a), i.e. to 
protect plant life or health within the territory of the Member from risks arising from the entry, 
establishment or spread of pests, diseases, disease -carrying organi sms or disease -causing 
organisms.  
7.204.   Manual NR -ARP-PO-01_M -01 is described as a guide for determining PRA procedures830, the 
purpose of which is to "[g]uide risk analyst s in conducting a PRA, through an assessment of the 
available scientific evidence that would enable them to determine whether an organism is a regulated 
pest, to evaluate its risk and to identify risk management options, in compliance with the 
Phytosanitary  Protection Law and international standards" .831 The manual also states that it "applies 
to all Risk Analysis Unit officials when conducting qualitative pest analyses by entry pathway" .832 
7.205.   According to its content, Manual NR -ARP-PO-01_M -01 lays down the stru cture for PRAs and 
guides risk analyst s through their analysis of the three PRA stages : initiation, pest risk assessment 
and pest risk management . The manual sets out the considerations to be taken into account by the 
analyst at each stage, as well as the elements to be included in the analysis of the probability of 
pest introduction and spread for quarantine pests, and the probabilities  values to be assigned to the 
risk factors  according to the given criteria,  in order to obtain a final score and establish  a risk rating . 
The manual is of a general nature and is applicable to any organism or pathway . The manual contains 
the methodology used to prepare the risk assessments contained in Reports ARP -002-2017 
and ARP-006-2016.  
7.206.   Based on the foregoing , the Panel n otes that the manual provides the risk analyst with 
instructions for preparing any qualitative pest analysis in Costa  Rica. While it does form part of the 
regulatory system for phytosanitary matters in Costa  Rica, the manual is solely a guide to be used 
by the risk analyst to prepare a PRA . This manual is not therefore a requirement or procedure that 
seeks in itself to protect plant life or health within Costa  Rica's territory from a ny specific risk , within 
the meaning of Annex A(1)(a) . Instead, it is an instrument that guides the risk analyst in the process 
of identifying and assessing such a risk.  
7.207.   In the view of this Panel, the manual is linked to Costa  Rica's overall phytosanitary policy , 
and may b e considered as being generally related to Costa  Rica's objective of or interest in protecting 
plant life or health within Costa  Rica's territory from risks arising from the entry, establishment or 
spread of pests, diseases, disease -carrying organisms or d isease -causing organisms, which 
corresponds to paragraph 1(a) of Annex A to the SPS  Agreement . 
 
827 Costa Rica's comments on Mexico's response to Panel question No.  120, para.  35. 
828 Costa Rica's comments on Mexico's response to Panel question No.  120, para.  34. 
829 Appellate Body Report, Australia – Apples , para.  173; an d Panel  Report , Korea – Radionuclides , 
para. 7.25. 
830 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
831 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
832 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  WT/DS524/R  
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  7.208.   However, the purpose of the manual is to guide the risk analyst in preparing phytosanitary 
PRAs, and , in turn, that of the  PRAs is to determine a specific phytos anitary risk . The manual neither 
specifically seeks nor is able by itself  to protect plant life or health , including of avocados,  within 
Costa  Rica's territory from risks arising from the entry, establishment or spread of pests, diseases, 
disease -carrying organisms or disease -causing organisms.  
7.209.   The foregoing calls into question  whether the manual may constitute, in itself or individually, 
a measure "to protect" or, more specifically, "to protect … plant life or health" in Costa  Rica's territory 
from risks a rising from the entry, establishment or spread of pests, diseases, disease -carrying 
organisms and disease -causing organisms, and whether, as a result, there exists the link between 
the measure and the protected interest that is required for the manual to b e considered as an SPS 
measure pursuant to paragraph 1 of Annex A to the SPS  Agreement . 
7.210.   With respect to the manual's purpose, in its last opportunity to do so in these proceedings, 
Mexico argues that the manual is an instrument that was used specifically to attempt to justify 
requirements that restrict the importation of fresh avocados for consumption .833 Mexico a dds that 
the manual affected the risk analyst's assessment and reasoning, and was designed so that PRAs 
would come to pre -determined conclusions that would justify the imposition of trade -restrictive 
measures .834 However, Mexico does not adequately explain or substantiate how the manual was 
used to attempt to justify requirements that restrict the importation of fresh avocados for 
consumption, how it was designed so that Reports ARP -002-2017 and ARP -006-2016 would come 
to pre -determined conclusions that just ified the imposition of trade -restrictive measures, or how this 
demonstrates a clear and objective relationship with the purpose of protecting plant life or health 
within the meaning of Annex A(1)(a).  
7.211.   As explained, the definition of an SPS measure in Annex  A(1) begins with the phrase "[a]ny 
measure applied ", and, in the context of this paragraph, the word "apply" may be interpreted as 
implementing  a measure to obtain  a certain  effect.  
7.212.   In the view of this Panel, the manual is not in itself a measure applied  to protect in the sense 
of producing as an effect the protection of plant life or health, including avocados . The manual 
contains the methodology for preparing PRAs and may be considered to be "applied" when the PRA 
is being prepared, but it does not have an "application" pertaining to or a specific effect on the 
protection of plant life or health.  
7.213.   The text of the second sentence of paragraph 1 of Annex A to the SPS  Agreement  includes 
"relevant ... methods of risk assessment" as an example of an SPS measure . Mexico claims that the 
manual may be classified as a "method of risk assessment" because it was developed to guide the 
risk analyst when  conducting a PRA .835 Costa  Rica expresses serious doubts that the phrase 
"provisions on relevant statistical methods, sampling procedures and methods of risk assessment" 
is referring to manuals used internally to prepare PRAs, and notes that all the procedures listed in 
Annex A(1) cover  aspects relating to the application or management of SPS measures once they are 
adopted, and not aspects relating to the assessment process that takes place beforehand to 
determine whether or not a particular risk exists in the first place.836 
7.214.   The Panel re calls that, in Australia – Apples , the Appellate Body noted that "the fact that an 
instrument is of a type listed in the last sentence of Annex A(1) is not, in itself, sufficient to bring 
such an instrument within the ambit of the SPS  Agreement."837 The ill ustrative list provides examples 
of "different types of measures that, when they exhibit the appropriate nexus to one of the specified 
purposes, will constitute SPS  measures" .838 Although Manual  NR-ARP-PO-01_M -01, which serves as 
a guide for preparing PRAs,  could fall within the methods of risk assessment category, the Panel 
does not consider that Mexico has demonstrated that the manual has an "application" pertaining to 
or a specific effect on the protection of plant life or health, which, in other words, i s the required link 
between the measure and the protected interest.  
 
833 Mexico's comments on Costa Rica's response to Panel question No.  120, para.  1. 
834 Mexico's comments on Costa Rica's response to Panel question No.  120, para.  2. 
835 Mexico's first written submission, para.  136; response to Panel question No.  120, para.  49. 
836 Costa Rica's comments on Mexico's response to Panel question No.  120, para.  34. 
837 Appellate Body Report, Australia – Apples , para.  175; Panel  Report , US – Animals , para.  7.32. 
838 Appellate Body Report, Australia – Apples , para.  176. WT/DS524/R  
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  7.215.   The Panel reiterates its agreement that the definition of "sanitary and phytosanitary 
measure" within the meaning of paragraph 1 of Annex A to the SPS  Agreement  should be read 
broadly, and  does not rule out that an instrument such as a n internal  manual may present aspects 
that mean it may be covered by the definition of an SPS measure . However, the Panel does not 
consider that Mexico has substantiated its argument that Manual NR -ARP-PO-01_M -01 should 
individually be considered as an SPS measure within the meaning of paragraph 1 of Annex A to the 
SPS Agreement.  
7.216.   As has been explained, a determining factor for a measure to constitute an SPS measure as 
defined in paragraph 1 of Annex A to the SP S Agreement  is whether the measure shows the required 
link with one of the purposes specified in the paragraph . The Panel does not consider that Mexico 
has demonstrated that the manual is applied for one of the purposes listed in Annex  A(1). 
Accordingly, t he Panel finds that Mexico has failed to demonstrate that Manual NR -ARP-PO-01_M -01 
is, individually , an SPS measure pursuant to th e definition  in that paragraph .839 
7.2.2.3.3.2   Whether Manual NR -ARP-PO-01_M -01 may , directly or indirectly , affect 
international trade  
7.217.   Mexico  argues that Manual NR -ARP-PO-01_M -01 affects international trade, or, as the case 
may be, may directly or indirectly affect trade.840 
7.218.   Mexico notes that the manual indirectly affects international trade due to its close 
relationship with the phytosanitary requirements imposed by Costa  Rica.841 Mexico adds that 
assuming that the Manual does not affect trade per se  would imply  believing unduly that it is not 
subject to the application of the SPS  Agreement  or that it has no relevance for this dispute, which 
in Mexico's view is incorrect.842 
7.219.   In its comments on Costa  Rica's responses to the Panel's questions following the second 
meeting of the Panel with the parties, Mexico reiterates that the manual indirectl y affects 
international trade due to its close relationship with the phytosanitary requirements . Mexico also 
notes that the manual indirectly affects international trade insofar as it facilitates the ex post  
justification of these requirements.843 
7.220.   Mexico al so argues that, by preparing a simplified manual, Costa  Rica's objective was  to 
control  the risk assessor's judgement , which would ensure that the assessor , when preparing the 
PRAs, would simplify his or her  judgements on the evidence, the quality of the evidence,  the level 
of uncertainty and the acceptability of the risks . According to Mexico, this meant that the PRAs could, 
in a preconceived manner, establish  a risk that would otherwise be unjustifiable . Mexico states that 
if the 2016 manual had not been prepared with this characteristic (simplified), the risk assessor  
would not have concluded in the PRAs that there was a high risk ; that the manual resulted in the 
preparation of an inadequate PRA that led to the implementation of requirements that aff ected 
international trade in fresh avocados for consumption between Mexico and Costa  Rica; and that the 
impact of the manual's application extends to the SFE's resolutions, which is why, according to 
Mexico, the manual has an indirect effect on internation al trade.844 
 
839 The Panel would like to clarify that its conclusion that  Mexico has failed to demonstrate that 
Manual  NR-ARP-PO-01_M -01 individually constitutes an SPS measure as defined in paragraph 1 of Annex  A to 
the SPS  Agreement is limited to the particular circumstances of this dispute, including the way in which Mexico 
has presented its case in that regard. In addition, as the Panel has found, this manual is clearly covered by the 
broad definition of what may constitute a "measure" for the purposes of the WTO dispute settlement system. 
With regard to this broad definitio n, in US – Zeroing (EC) , for example, the parties agreed that the 
United  States' Anti -Dumping Manual was a measure for the purposes of a WTO dispute.  
840 Mexico's response to Panel question No.  100, para.  124. 
841 Mexico's response to Panel question No.  100, para.  125. 
842 Mexico's response to Panel question No.  100, para.  125; comments on Costa Rica's response to 
Panel question No.  117, para.  3. 
843 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  4. 
844 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  6. WT/DS524/R  
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  7.221.   Costa  Rica, for its part , states  that, under the standard of Article  1.1 of the SPS  Agreement 
that a measure must affect trade in the sense that it modifies the conditions of competition, Mexico 
has failed to demonstrate that Manual NR -ARP-PO-01_M-01 satisfies this requirement.845 
7.222.   Costa  Rica claims that Mexico has failed to demonstrate that the manual may affect 
international trade as a separate measure846, either directly or indirectly, and has not even 
attempted to provide  some kind of reasoning  in this regard.847 
7.223.   Costa  Rica notes that Mexico recognizes that the manual does not affect trade per se848 and 
has decided that it does not need to demonstrate the individual impact of the measures at issue 
because it considers that all of these measures operate as an inseparable whole, and that, in any 
case, the impact of the requirements would satisfy the stipulation that  trade be affected with respect 
to the measures as a whole.849 
7.224.   Costa  Rica also notes that the manual merely reflects methodological and bureaucratic 
guidelines, and that, by its very nature, it is not likely to affect , directly or indirectly, international 
trade within the meaning of Article  1.1 of the SPS  Agreement .850 Costa  Rica asserts  that the manual 
is a set of guidelines designed to standardize, improve and provide guidance for the proper conduct 
of risk assessments, and is neutral as rega rds the product (containing no references to ASBVd or 
any other pest) and the origin of the goods . It does not provide for any impact on imports and is 
therefore incapable , in itself , of giving rise to a risk of imports being affected .851 According to 
Costa  Rica, to affect international trade  directly or indirectly , a measure must be capable of altering 
or undermining competitive opportunities for imports, and if, by its nature, a measure does not  even 
have the capacity to cause such changes , it cannot be considered to be a measure that directly or 
indirectly affects international trade within the meaning of Article  1.1 of the SPS  Agreement .852 
7.225.   The Panel  has found that Mexico has failed to demonstrate that Ma nual 
NR-ARP-PO-01_M -01 is, individually, an SPS measure pursuant to that definition . While the 
conditions for the applicability of the SPS  Agreement  are cumulative, in order to be exhaustive in its 
analysis, the Panel will address Mexico's arguments as to whether the manual may, directly or 
indirectly, affect international trade.  
7.226.   The Panel notes that Mexico puts forward arguments on the effect on international trade of 
Manual NR -ARP-PO-01_M -01 that are very similar to those that it presented in relation to 
Reports  ARP-002-2017 and ARP -006-2016.  
7.227.   Mexico's argument that the manual indirectly affects international trade is based on the 
relationship between this manual and Resolutions DSFE -002-2018 and DSFE -003-2018. In other 
words, the effects on international t rade to which Mexico refers in relation to the manual stem from 
the phytosanitary requirements actually imposed by the resolutions.  
7.228.   In the view of this Panel, throughout the proceedings, Mexico referred to the relationship 
between the manual and Resolutions DSFE -002-2018 and DSFE -003-2018, but failed to  explain how 
this relationship means that the manual may by itself have some effect on international trade, even 
indirectly.  
7.229.   Mexico argues that, by preparing a simplified manual, Costa  Rica's object ive was to control 
the risk analyst's  judgement, which would ensure that the assessor , when preparing the PRAs, would 
simplify his or her  judgements on the evidence, the quality of the evidence, the level of uncertainty 
and the acceptability of the risks . According to Mexico, this meant that the PRAs could, in  a 
 
845 Costa Rica's response to Panel question No.  117, para.  34. See also Costa Rica's comments on 
Mexico's response to Panel question No. 120, para. 36.  
846 Costa Rica's first written submission, para. 5 .2 and fn 94; closing statement at the second meeting of 
the Panel, para.  1.2. 
847 Costa Rica's second written submission, para.  2.9; response to Panel question No.  117, para.  32; 
comments on Mexico's response to Panel question No.  117, para.  29. 
848 Costa Ric a's second written submission, para.  2.9; response to Panel question No.  117, para.  32; 
comments on Mexico's response to Panel question No.  117, para.  29. 
849 Costa Rica's response to Panel question No.  117, para.  32. 
850 Costa Rica's response to Panel question No.  112, para.  3. 
851 Costa Rica's response to Panel question No.  117, para.  33. 
852 Costa Rica's comments on Mexico's response to Panel question No.  117, para.  28. WT/DS524/R  
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  preconceived manner, establish  a risk that would otherwise be unjustifiable .853 However, Mexico fails 
to adequately explain the relevance of,  or substantiate , its assertions  that "Costa  Rica's object ive 
was [for the manual] to control the risk assessor's judgement" and that "the PRAs could, in a 
preconceived manner, establish a risk that would otherwise be unjustifiable" . 
7.230.   Mexico also states  that the manual resulted in the preparation of an inadequate PRA that led 
to the implementation of requirements that affected international trade in fresh avocados for 
consumption between Mexico and Costa  Rica, and that the impact of the manual's application 
extends to the SFE's resolutions, which is why, according to Mexico, the manual has an indirect 
effect on international trade .854 The Panel considers, however, that the effect on international trade 
to which Mexico refers stems from the imposition of the phytosanitary requirements through the 
resolutions, and Mexico fails to adequately explain or substantiate what the effects on international 
trade are as a result of applying the manual and how these effects  on international trade  extend to 
the resolutions.  
7.231.   In light of the foregoing and in the v iew of this Panel, Mexico has failed to demonstrate how 
the manual in itself may, individually , affect international trade . While this Panel does not rule out 
the possibility that a manual presenting aspects that may , directly or indirectly , affect interna tional 
trade exists, the Panel considers that Mexico has failed to demonstrate that Manual 
NR-ARP-PO-01_M -01 by itself may , individually , affect international trade, even indirectly.  
7.232.   The Panel therefore concludes that Mexico has failed to demonstrate  that 
Manual  NR-ARP-PO-01_M -01 may , individually , affect,  direct ly or indirect ly, trade, and has therefore 
failed to demonstrate that this manual satisfies the condition of Article  1.1 of the SPS  Agreement  in 
order for the provisions of the SPS  Agreement  to be applicable to it as an individual phytosanitary 
measure.  
7.2.2.3.3.3   Conclusion on Manual NR -ARP-PO-01_M -01 
7.233.   The Panel has found that Mexico has failed to demonstrate that Manual  NR-ARP-PO-01_M -01 
constitutes , individually, an SPS measure as defined in Annex A(1) ; and that  Mexico has also failed 
to demonstrate that said manual may , individually, affect,  directly or indirectly , international trade 
within the meaning of Article  1.1 of the SPS  Agreemen t. In view of the foregoing, the Panel concludes 
that Mexico has failed to demonstrate that Manual NR -ARP-PO-01_M -01 is an SPS measure to which 
the SPS  Agreement applies individually.  
7.2.2.4   Whether the Panel will analyse jointly the measures identified by Mexico  
7.234.   Mexico  argues that the measures' close relationship means that they must be analysed 
jointly  as well as individually855, and notes that the Panel's conclusions and findings must refer to 
the measures jointly  because they operate as an inseparable  whole.856 
7.235.   Mexico states that the requirements contained in Resolutions  DSFE -002-2018 and 
DSFE -003-2018, the Reports ARP -002-2017 and ARP -006-2016, and the methodology contained in 
Manual NR -ARP-PO-01_M -01 jointly  constitute restrictions on the importation of fresh avocados for 
consumption from Mexico.857 
7.236.   Mexico points out that a measure may comprise more than one instrument and that, in this 
case, the resolutions establish the phytosanitary requirements, the PRAs s et out the alleged 
reasoning for recommending such requirements, and the manual guides the risk analyst in preparing 
these PRAs . Mexico adds that the resolutions expressly refer to the PRAs, which, in turn, cite the 
manual as the source based on which they  were prepared, and that each instrument cannot be 
understood in isolation or separately.858 
 
853 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  6. 
854 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  6. 
855 Mexico's response to Panel question No.  99, para.  116; second written submission, para.  7. 
856 Mexico's second written submission, para.  7. 
857 Mexico's first written submission, par as. 93-94; response to Panel question No.  99, para.  116. 
858 Mexico's response to Panel question No.  99, para.  115. WT/DS524/R  
- 147 - 
  7.237.   Mexico argues that the measures must be assessed as a whole because of their design and 
functionality, since many of the elements of the measures are interrelated a nd can be mutually 
justified, and the inconsistency of any of the measures individually with the provisions of the 
SPS Agreement would necessarily affect the others as a whole . Mexico asserts that if the manual 
presents inconsistencies with the SPS  Agreeme nt, this could have an impact on the PRAs, and that 
if it is found that the PRAs were not subject to the requirement to conduct a risk assessment 
appropriate to the circumstances, this would necessarily affect the resolutions that are based on  
them.859 According to Mexico , each instrument has a range of components, which means that the 
importation of avocados from Mexico has thus been restricted and prohibited  de facto .860 
7.238.   Mexico also notes that  the five measures it has identified , by operating as a whole,  give rise 
to a phytosanitary restriction on the importation into Costa  Rica of fresh avocados for 
consumption .861 Mexico states  that the characteristics with which the measures were designed mean 
that it is possible to ascertain that these measures h ave a collective impact that impairs the benefits 
accruing to Mexico under the SPS  Agreement .862 
7.239.   Mexico also asserts  that the risk assessments and the manual form an inseparable part of 
the measure giving rise to a de facto  ban imposed by Costa  Rica863, and that the Panel should 
therefore conduct a collective assessment that includes an analysis of the consistency  of Costa  Rica's 
risk assessments and manual.864 
7.240.   Costa  Rica, for its part , states  that the Panel should reject Mexico's request for its claims 
to be assessed on the basis of a measure as a whole.865 
7.241.   Costa  Rica argues that this type of claim has been dealt with in past disputes where the 
complainant has succeeded in demonstrating that the measure is legitimately a collective measure, 
with its own identit y, and that Mexico has made no effort to prove that the measures operate 
collectively as an inseparable whole . Costa  Rica notes that a complainant challenging an overarching 
measure will need to provide evidence relating to two elements : (i) how the differ ent components 
operate together as part of a single measure ; and (ii)  how a single measure exists as distinct from 
its components .866 Costa  Rica asserts  that Mexico has failed to demonstrate any of these 
elements.867 
7.242.   According to Costa  Rica, the complainant must demonstrate that the general or overarching 
measure is clearly distinguishable from its components, which is particularly relevant if these 
components have also been challenged as separate measures, and the general or overarching 
measure must have a functional life of its own, independent of any other measure, for it to be able 
to give rise independently to a violation of WTO obligations.868 
7.243.   Costa  Rica adds that Mexico fails to  demonstrate how the reference to the PRAs in the 
resolutions or the citing of the manual as the source of the PRAs may lead to the conclusion that the 
documents are inseparable or constitute a single measure.869 
7.244.   Costa  Rica considers that the fact that there is a link between a risk assessment and a set 
of phytosanitary requirements, and that the former explains the existence of the latter, is a matter 
that concerns the justification or the consistency of the phytosanitary m easure with the 
SPS Agreement . Costa  Rica asserts  that, nevertheless,  it is not a question of whether this link may 
 
859 Mexico's response to Panel question No.  111, para.  8. 
860 Mexico's response to Panel question No.  111, para.  9. 
861 Mexico's response to Panel question No.  111, para.  12. 
862 Mexico's comments on Costa Rica's response to Panel question No.  117, para.  8. 
863 Mexico's comments on Costa Rica's response to Panel question No.  115, para.  3. 
864 Mexico's comments on Costa Rica's response to Panel questi on No.  115, para.  4. 
865 Costa Rica's second written submission, para. 2.1.  
866 Costa Rica's second written submission, paras. 2.3 -2.5; response to Panel question No. 112, para. 6 
(citing Appellate Body Reports, Argentina – Import Measures , para.  5.108).  
867 Costa Rica's second written submission, para.  2.6; closing statement at the second meeting of the 
Panel, para.  1.2; and comments on Mexico's response to Panel question No.  111, para.  2. 
868 Costa Rica's response to Panel question No.  112, para.  6 (citing Costa Rica's second written 
submission, para.  2.5). 
869 Costa Rica's response to Panel question No. 112, para. 7; response to Panel question No. 116, 
para. 27; comments on Mexico's response to Panel question No. 116, para. 26.  WT/DS524/R  
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  be understood as demonstrating the indivisibility of these components and of whether it gives the 
collective phytosanitary measure an identi ty distinct from th at phytosanitary measure based on the 
requirements.870 
7.245.   Costa  Rica notes that the phytosanitary requirements are clear and are made explicit in the 
resolutions871, and that even assuming, arguendo , that the requirements may not be understoo d 
without the PRAs and the manual, this mere assertion does not mean that the five individual 
instruments become one measure as a whole .872 Costa  Rica also notes that neither the PRAs nor the 
manual provide  the whole with the singularity that would give the alleged collective measure an 
identity that would distinguish it from the individual measures.873 
7.246.   The Panel will examine below whether the measures identified by Mexico, i.e. Resolutions 
DSFE -003-2018 and DSFE -002-2018, Reports ARP -002-2017 and ARP -006-2016, and 
Manual  NR-ARP-PO-01_M -01 may be analysed as a measure as a whole.  
7.247.   The Appellate Body and p revious panels have addressed  the question of whether there exists 
a single measure or a measure comprising several measures as a whole . The parties to this  dispute 
refer to previous cases in which the panels dealt with the measures at issue as a whole . Mexico 
considers the panel reports in Japan – Apples (Article  21.5 – United  States )874 and US – COOL875 to 
be relevant . Costa  Rica, on the other hand, refers to Argentina  – Import Measures .876 
7.248.   In Japan – Apples , the complainant identified nine requirements as one single measure, and 
the panel noted that these requirements cumulatively constituted the measures actually applied to 
the importation of the product in question, and that they were a set of interrelated requirements 
that had to be met in order for US apples to be exported to Japan .877 The parties agreed that the 
requirements should be treated as one single measure .878 The panel saw no "legal, logical or factual 
obstacle" to treating such requirements as one single phytosanitary measure within the meaning of 
the SPS  Agreement , and, on the contrary, there were good reasons to do so, in particular the fact 
that both parties themselv es argued the case as an "all or nothing" exercise.879 
7.249.   The panel in US – COOL  noted that the main factors considered by panels and the Appellate 
Body in relation to the question of whether to treat several requirements or provisions as a single 
measure or m ultiple measures include the following : (i) the manner in which the complainant 
presented its claims in respect of the concerned instruments ; (ii) the respondent's position ; and 
(iii) the legal status of the requirements or instruments, including the opera tion of, and the 
relationship between, the requirements or instruments, namely whether a certain requirement or 
instrument had autonomous status.880 
7.250.   In that dispute, t he panel considered the measures at issue in light of the a forementioned 
factors, and note d that it would examine whether and, if so, to what extent the measures operated, 
legally or substantively, in conjunction with each other or depended on each other .881 The panel 
noted that, legally, one  of the measures at issue, the 2009 Final Rule (AMS), did not have 
autonomous status ; it laid out the specificities pertaining to the country of origin labelling  (COOL)  
requirements that were necessary to implement the contents of the other measure at issue, the 
COOL  statute .882 The panel explained that, given the close legal and substantive link between the 
COOL  statute and the 2009 Final Rule (AMS), it was appropriate to examine the relevant elements 
of both instruments pertaining to the COOL  requirements for  meat products "as an integral part" of 
 
870 Costa Rica's response to Pane l question No. 112, para. 9. 
871 Costa Rica's comments on Mexico's response to Panel question No. 111, para. 1.  
872 Costa Rica's comments on Mexico's response to Panel question No.  111, para.  2. 
873 Costa Rica's comments on Mexico's response to Panel question No. 111, para. 1.  
874 Mexico's response to Panel question No.  112, para.  17. 
875 Mexico's comments on Costa Rica's response to Panel question No.  112, para.  9 (citing 
Panel  Report s, US – COOL , para.  7.50).  
876 Appellate Body Reports, Argentina – Import Measures , para.  5.108 (referring to Panel  Report s, 
US – COOL , para.  7.50).  
877 Panel  Report , Japan – Apples , para.  8.16. 
878 Panel  Report , Japan – Apples , para.  8.15. 
879 Panel  Report , Japan – Apples , para.  8.17. 
880 Panel  Report s, US – COOL , para.  7.50. 
881 Panel  Report s, US – COOL , paras.  7.50 and 7.52.  
882 Panel  Report s, US – COOL , para.  7.54. WT/DS524/R  
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  one single COOL  measure, and that there were sufficient "legal, logical and factual" bases to treat 
the COOL  statute and 2009 Final Rule (AMS) as the "COOL  measure".883 
7.251.   In Argentina – Import Measures , the complainants  identified five trade -related requirements 
(TRRs) and maintained that there was a single unwritten measure (TRR measure) comprising a 
combination of one or more of the five identified TRRs .884 The Appellate Body noted that the scope 
of measures that can be  challenged in WTO dispute settlement is broad885, and that the constituent 
elements that must be substantiated with evidence and arguments in order to prove the existence 
of a measure challenged will be informed by how such measure is described or characte rized by the 
complainant .886 The Appellate Body gave the example of how a complainant challenging a single 
measure composed of several different instruments will normally need to "provide evidence of how 
the different components operate together as part of a single measure and how a single measure 
exists as distinct from its components" .887 The Appellate Body concluded that the panel correctly 
found that the complainants had demonstrated the existence of a TRR measure, which was 
composed of several individual  TRRs operating together in an interlinked fashion as part of a single 
measure in pursuit of the objectives of import substitution and trade deficit reduction.888 
7.252.   As has been done in previous disputes, in order to determine whether the measures identified 
by Mexico may be viewed as a measure as a whole, this Panel will examine the manner in which 
Mexico has presented its claims in respect of the concerned instruments, including how it has 
described or characterized the measure , Costa  Rica's posit ion, the legal status of the requirements 
or instruments, including the operation of, and the relationship between, the requirements or 
instruments , as well as the relevant evidence that Mexico has submitted, particularly in relation to 
how the different c omponents operate together as part of a single measure and how a single measure 
exists , distinct from its components.889 
7.253.   In its panel request, Mexico identified the specific measures at issue as "those by which  
Costa  Rica prohibits or restricts , either jointly or individually,  the importation of fresh avocados for 
consumption from Mexico" .890 Mexico noted that these measures comprised 
Resolutions  DSFE -003-2018 and DSFE -002-2018, Reports ARP -002-2017 and ARP -006-2016, and 
Manual  NR-ARP-PO-01_M -01.891 
7.254.   Mexico argues that the five measures as a whole constitute restrictions on the importation 
of fresh avocados for consumption from Mexico892, and describes them as an inseparable whole due 
to their close relationship .893 Mexico also states  that the risk asses sments and the manual form an 
inseparable part of the measure giving rise to a de facto  ban imposed by Costa  Rica894, and that the 
Panel should therefore conduct a collective assessment that includes an analysis of the consistency  
of Costa  Rica's risk asses sments and manual.895 
7.255.   Costa  Rica's position is that Mexico has failed to demonstrate that the measures operate 
collectively as an inseparable whole, for which reason the Panel should reject Mexico's request for 
its claims to be assessed on the basis of a me asure as a whole.896 
 
883 Panel  Report s, US – COOL , para.  7.61. 
884 Appellate Body Reports, Argentina – Import Measures , para.  1.4. 
885 Appellate Body Reports, Argentina – Import Measures , para.  5.106.  
886 Appellate Body Reports, Argentina – Import Measures , para.  5.108.  
887 Appellate Body Reports, Argentina – Import Measures , para.  5.108 (referring to 
Panel  Report s, US – COOL , para.  7.50).  
888 Appellate Body Reports, Argentina – Import Measures , para.  5.146.  
889 Appellate Body Reports, Russia – Railway Equipment , paras.  5.239 and 5.242; 
Argentina  – Import  Measures , para.  5.108; and Panel  Report s, US – COOL , para.  7.50; Indonesia – Chicken , 
paras.  7.616 and 7.665.  
890 Mexico's panel request, WT/DS524/2, p. 2 . 
891 Mexico's panel request, WT/DS524/2, p. 2.  
892 Mexico's first written submission, para.  94. 
893 Mexico's response to Panel question No.  99, para.  116; second written submission, para.  7. 
894 Mexico's comments on Costa Rica's response to Panel question No.  115, para.  3. 
895 Mexico's comments on Costa Rica's response to Panel question No.  115, para.  4. 
896 Costa Rica's second written submission, paras.  2.3-2.5; response to Panel question No.  112, para.  6 
(citing Appellate Body Reports, Argentina – Import Measure s, para.  5.108).  WT/DS524/R  
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  7.256.   With regard to the legal status of the instruments, the Panel recall s that the measures 
identified by Mexico as the measures at issue comprise:  
a. Manual NR -ARP-PO-01_M -01, issued by the UARP of the SFE and described as "a guide for 
determining pest risk analysis procedures"897; 
b. Report ARP -002-2017, issued by the UARP of the SFE, which is a risk analysis prepared 
"[t]o determine the risk of plant pests associated with the importation of fresh avocados 
(Persea americana  Mill.) for human  consumption from Mexico"898; 
c. Report ARP -006-2016, issued by the UARP of the SFE, which is a risk analysis prepared 
"to determine the phytosanitary risk associated with the importation of fresh avocado 
(Persea americana Mill.) fruit for consumption and plan ts of the same species for planting, 
from countries where the pest Avocado sunblotch viroid (ASBVd) is present"899; 
d. Resolution DSFE -003-2018, issued by the Executive Directorate of the SFE, which 
establishes as a phytosanitary measure the phytosanitary requ irements for imports of 
fresh avocado  fruit for consumption from Mexico900; and 
e. Resolution DSFE -002-2018, issued by the Executive Directorate of the SFE, which 
establishes as a phytosanitary measure the phytosanitary requirements for the 
importation of fres h avocado  fruit and avocado plants for planting that are vectors of 
ASBVd from any country in which the pest ASBVd is present.901 
7.257.   With regard to the relationship between these measures, the methodology used for preparing 
the risk assessments contained in Re ports ARP-002-2017 and ARP -006-2016 is set out in  Manual 
NR-ARP-PO-01_M -01902; Resolution DSFE -003-2018 refers to the issuance of the risk assessment 
contained in Report ARP -002-2017903; and Resolution DSFE -002-2018 refers to the issuance of the 
risk assessment contained in Report ARP -006-2016.904 
7.258.   It should be noted that Mexico has neither explained nor demonstrated with specific evidence 
that is additional to the instruments themselves how the different components operate together as 
part of a single measure , or how a single measure exists , distinct from its components.  
7.259.   The Panel notes that, although Mexico characterized the measures at issue as "those by 
which Costa  Rica prohibits or restricts , either jointly  or individually,  the importation of  fresh avocados 
for consumption from Mexico", the requirements that Mexico alleges to be restrictions or prohibitions 
on the importation of avocados were imposed through  the resolutions, and not through  the reports 
or the manual.  
7.260.   In the Panel's view, unlik e the aforementioned cases that involve an overarching or single 
measure, this dispute does not involve  a set of requirements that have to be met in order to import 
the product in question905, or a statute, which is the legal basis for certain requirements, and the 
regulation adopted to implement the statute906, or different requirements that function as a single 
measure by acting in different combinations to realize common objectives.907 
7.261.   The case before this Panel  involves two reports containing technical and scientific information 
on avocado farming and  ASBVd , the assessment of the risks relating to ASBVd, as well as 
recommendations on phytosanitary requirements to be imposed . It also involves a manual used to 
 
897 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 1.  
898 ARP-002-2017, (Exhibit MEX -84), p. 3.  
899 ARP-006-2016, (Exhibit MEX -85), p. 3.  
900 Resolution DSFE -003-2018, (Exhibit MEX -4), pp. 1 and 4 -5. 
901 Resolution DSFE -002-2018, (Exhibit MEX -103), pp. 1 and 4 -5. 
902 ARP-002-2017, (Exhibit MEX -84), p. 3; ARP -006-2016, (Exhibit MEX -85), p. 3.  
903 Resolution DSFE -003-2018, (Exhibit MEX -4), p. 1.  
904 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 1.  
905 See Panel  Report , Japan – Apples , paras.  8.11-8.19. 
906 See Panel  Report s, US – COOL , para.  7.60. 
907 See Panel  Report s, Argentina – Import Measures , paras.  6.221 -6.231; and Appellate Body Reports, 
Argentina – Import Measures , para.  5.148.  WT/DS524/R  
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  prepare the risk assessments contain ed in these technical and scientific reports, and the resolutions 
through which the phytosanitary requirements were imposed . The reports contain technical and 
scientific information  with respect to the risk under consideration  and recommendations on the 
requirements to be imposed, but they do not impose or establish requirements . The manual sets out 
the methodology for preparing the reports, but it does not impose or establish requirements.  
7.262.   More specifically, the resolutions relate to the reports because th ese reports were prepared 
to assess the risk in relation to which the phytosanitary requirements contained in the resolutions 
were imposed ; and the reports relate to the manual because they were prepared using the 
methodology contained in the manual . The reports and the manual help to explain  the phytosanitary 
requirements contained in the resolutions, but the resolutions are the measures that impose the 
phytosanitary requirements.  
7.263.   The Panel does not consider that the relationship between these measures jus tifies or 
demonstrates the existence of one phytosanitary measure consisting of the five measures identified 
by Mexico taken as a whole.  
7.264.   However, in order to assess the consistency of the resolutions, which contain the 
phytosanitary requirements , with certain provisions of the SPS  Agreement , the Panel will necessarily 
have to consider the reports and the manual . In other words, assessing the reports and the manual 
is part of the Panel's terms of reference in this dispute because Mexic o has put forward claims that 
oblige the Panel to examine these instruments . These claims notably cover  Articles 5.1 to 5.3 of the 
SPS Agreement, which specifically refer to risk assessment as the basis for phytosanitary measures.  
7.265.   Costa  Rica considers that  the fact that there is a link between a risk assessment and a set 
of phytosanitary requirements, and that the former explains the existence of the latter, is a matter 
that concerns the justification or the consistency of the phytosanitary measure with the  
SPS Agreement, particularly with respect to the obligations under  Article  5.908 There does not 
therefore appear to be any disagreement between the parties as to the relationship between the 
measures identified by Mexico in terms of their role in the justif ication of Costa  Rica's phytosanitary 
requirements.  
7.266.   The panel in US – Export Restraints  noted that "[i]n considering whether any or all of the 
measures individually can give rise to a violation of WTO obligations, the central question that must 
be answered  is whether each measure operates in some concrete way in its own right."909 The panel 
analysed the legal status of each of the measures and determined that one of them (a statement) 
did not have an operational life or legal status independent of the other measure (a statute) such 
that it could, on its own, give rise to a violation of WTO rules .910 However, the panel made findings 
by reading the statute in light of the statement, recognizing the statement's fundamental importance 
as the authoritative interpre tation of the statute . Likewise, this Panel will need to read the 
resolutions , which  contain the phytosanitary requirements , together  with the reports and the 
manual.  
7.267.   In light of the foregoing, the Panel concludes that Mexico has failed to demonstrate the 
existence of a phytosanitary measure comprising the five measures identified by Mexico taken as a 
whole . However, in order to analyse the claims put forward by Mexico,  this Panel will read Resolutions 
DSFE -002-2018 and DSFE -003-2018, which  contain the phytosanitary requirements , together with 
Reports ARP-002-2017 and ARP -006-2016 and Manual  NR-ARP-PO-01_M -01, and will make any 
necessary findings and recommendations in r elation to these instruments, with a view to securing a 
positive solution to the dispute.  
7.2.3   Overall conclusion of this section  
7.268.   The Panel concludes the following : 
 
908 Costa Rica's response to Panel question No.  112, para.  9. 
909 Panel  Report , US – Export Restraints , para.  8.85. 
910 Panel  Report , US – Export Restraints , paras.  8.98-8.99. WT/DS524/R  
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  a. Mexico has demonstrated that Resolutions DSFE -002-2018 and DSFE -003-2018, which 
contain the phyt osanitary requirements, individually constitute phytosanitary measures 
subject to the SPS  Agreement . 
b. Mexico has failed to demonstrate that Reports ARP -002-2017 and ARP -006-2016 and 
Manual  NR-ARP-PO-01_M -01 individually constitute phytosanitary measures subject to the 
SPS Agreement.  
c. Mexico has failed to demonstrate the existence of a phytosanitary measure consisting of 
the five measures identified by Mexico taken as a whole . However, in order to analyse the 
claims put forward by Mexico, this Pane l decided that it would read Resolutions 
DSFE -002-2018 and DSFE -003-2018, which  contain the phytosanitary requirements , 
together  with Reports ARP -002-2017 and ARP -006-2016 and Manual 
NR-ARP-PO-01_M -01, and would make any necessary findings and recommendati ons in 
relation to these instruments, with a view to securing a positive solution to the dispute.  
7.3  Whether Mexico has demonstrated that ASBVd is present in Costa  Rica 
7.269.   Before analysing Mexico's claims, the Panel will consider whether Mexico has demonstrated 
as a matter of fact that ASBVd is present in Costa  Rica, because this is a factual matter that is 
relevant for the analysis of all of Mexico's claims . 
7.270.   Mexico  submits that, although Costa  Rica asserts that ASBVd is absent in its territory, the 
following evi dence makes it possible  to infer that it is present in the territory of Costa  Rica: 
a. A memorandum from the Cellular and Molecular Biology Research Centre (CIBCM) of the 
University of Costa  Rica (UCR)911; 
b. Affidavits of a nursery worker, and of Costa  Rican traders and importers912; 
c. Laboratory analysis results of samples taken in 2014 and 2015 -2016 in Costa  Rica913; 
d. The trade in fresh avocados for consumption from Mexico for more than 20 years without 
Costa  Rica having brought a complaint  relative to those shipments914; 
e. Costa  Rica's trade in fresh avocados for consumption from other countries where ASBVd 
is present, even after the application of the measures at issue, such as Peru and 
Guatemala915; 
 
911 Mexico's first written submission, para.  79 (citing Centro de Investigaciones en Biología Celular y 
Molecular de la Universidad de Costa Rica, Oficio CIBCM -PCDV -044-2014, 29 de octubre de 2014 
(Memorandum CIBCM -PCDV -044-2014 (2014)), (Exhibit MEX -115)). 
912 Mexico's first written submission, para.  79 (citing Declaración Jurada de Jesús Alberto Salas 
Sanabria,  25 de marzo de 2019 (Affidavit of Jesús Alberto Salas Sanabria (2019)),  (Exhibit MEX -93); 
Declaración Jurada de Eduardo Ramírez Castro, 25 de marzo de 2019 ( Affidavit of Eduardo Ramírez Castro 
(2019)),  (Exhibit MEX -94); Declaración Jurada de Manrique Loáiciga González, 27 de marzo de 2019 ( Affidavit 
of Manrique Loáiciga González (2019)), (Exhibit MEX -95); and Declaración Jurada de Randall Benavides Rivera, 
28 de marzo de 2019 ( Affidavit of Randa ll Benavides Rivera (2019)), (Exhibit MEX -96)). 
913 Mexico's first written submission, para.  79 (citing O. Borbón Martínez, Jefe de Unidad de Biometría y 
Sistemas de Información, Departamento de Operaciones Regionales del Servicio Fitosanitario del Estado del  
Ministerio de Agricultura y Ganadería de Costa Rica, "Muestreo del viroide manchado solar (ASBVd)(Sunblotch) 
en el cultivo de aguacate (Persea americana), a nivel nacional, 2014" (Sampling survey 2014), (Exhibit MEX -
64); and O. Borbón Martínez, Departamen to de Operaciones Regionales del Servicio Fitosanitario del Estado del 
Ministerio de Agricultura y Ganadería de Costa Rica, "Muestreo del viroide manchado solar (ASBVd) 
(Sunblotch) en el cultivo de aguacate ( Persea americana ), Región central oriental, dici embre 2015 y enero 
2016" (Sampling survey 2015 -2016), (Exhibit MEX -65)). 
914 Mexico's first written submission, para.  79 (citing Claudia Marín, "Crecex: Nunca se debió prohibir la 
importación del aguacate Hass", Elmundo.cr  (2019)  ("Crecex: Nunca se debió prohibir la importación del 
aguacate Hass", Elmundo.cr  (2019)) , (Exhibit MEX -90), p. 2).  
915 Mexico's first written submi ssion, para.  79 (citing "Importadores prevén un precio más alto para el 
aguacate Hass de Perú", La Nación  (2015), (Exhibit MEX -91), p. 1; and "Exigen a gobierno tico transparencia 
en negociación aguacate mexicano", prensa -latina.cu  (28 de febrero de 2019)  ("Exigen a gobierno tico 
transparencia en negociación aguacate mexicano", prensa -latina.cu  (2019)) , (Exhibit MEX -92), p. 9).  WT/DS524/R  
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  f. Evidence of the importation of propagati on material to Costa  Rica from California, 
United  States , through the Cantonal Agricultural Centre of Tarrazú916, which pr esumably 
could have been infected with ASBVd and its disease, as some literature hypothesizes that 
the disease spread to Israel and Australia from California .917 According to Mexico, the 
importation of propagati on material from California to the Canton of T arrazú was recorded 
by Costa  Rica's own Ministry of Agriculture and Livestock (MAG)918 and confirmed by 
Francisco Cordero Navarro, who has been in charge of the Cantonal Agricultural Centre of 
Tarrazú for 39 years , and who notes that grafting of the Hass va riety began in the 
1990s.919 
7.271.   Mexico adds that there are determining factors from which it can be inferred  that ASBVd and 
its disease are present in the territory of Costa  Rica, namely, that:  
a. Costa  Rica failed to declare the absence of ASBVd and its disease on the basis of  ISPM 
Nos. 6 and 8, as it did not implement an officially approved surveillance system ; the 
specific surveys failed to provide the basic information suggested in section 2.1 of ISPM 
No. 8; there is not enough information to conclude that those persons who determined 
the absence can be considered technical experts, or what methodology was used ; and 
Costa  Rica failed to justify scientifically, where relevant, why it had to deviate from ISPM 
Nos. 6 and 8.  
b. Costa  Rica failed to declare its terr itory a PFA on the basis of  ISPM No. 4. 
c. The sampling surveys conducted  in 2014, 2015 and 2016 lack a scientific methodology 
and a statistical basis.  
d. There is evidence, scientific testimonies and statements by members of the avocado 
industry from which it c an be inferred  that ASBVd is present in Costa  Rica's territory.920 
7.272.   Mexico also submits that questions remain about Costa  Rica's processing of the 25 samples 
taken as part of the 2014 survey that proved positive, which were subject to a second molecular 
verification method, a situation that is clarified in a memorandum from April 2015 (almost five 
months after the sampling survey was completed) . For Mexico, in light of the characteristics of 
ASBVd and its irregular distribution, it is particularly questionabl e that there was no follow -up of the 
trees from which those samples were taken, so that it could be confirmed that effectively ASBVd 
was not present in the country.921 
7.273.   With regard to Memorandum CIBCM -PCDV -021-2015 dated 6 April 2015922, Mexico submits 
that it reports that none of the samples tested positive for ASBVd, and that 25 avocado leaf samples 
 
916 Mexico's first written submission, para.  79 (citing Ministerio de Agricultura y Ganadería de Costa 
Rica, Región Central Oriental,  "Caracterización de la Agrocadena de Aguacate, Zona de los Santos" (2007) (Los 
Santos Zone (2007)), (Exhibit MEX -97), p. 7).  
917 Mexico's first written submission, para.  79 (citing Whitsell (1952), (Exhibit MEX -42)); and Geering 
(2018), (Exhibit MEX -43)); second written submission, para.  43 (citing Geering (2018), (Exhibit MEX -43), 
p. 2). 
918 Mexico's second written submission, para.  44 (citing Los Santos Zone (2007), (Exhibit MEX -97), 
p. 7). 
919 Mexico's second written submission, para.  44 (citing Declaración Jurada de Francisco Cordero 
Navarro, 23 de septiembre de 2019  (Affidavit of Francisco Cordero Navarro (2019)) , (Exhibit CRI -47)). 
920 Mexico's first written submission, para.  388 (citing Sampling survey 2014, (Exhibit MEX -64); 
Sampling survey 2015 -2016, (Exhibit MEX -65); Servicio Nacional de Sanidad, Inocuidad y Calidad 
Agroalimentaria (SENASICA), México, Memorándum No. SUBD/1058, 23 de noviembre de 2015 (Memorandum 
No. SUBD/1058 (2015)), (Exhibit MEX -127); Laboratorio de Diagnóstico Integral Fitosanitario (L ADIFIT), 
"Informe de resultados", prueba de laboratorio 15/125 -Vr, del Dr Obregón Goméz, 14 de enero de 2016 
(LADIFIT, Laboratory test 15/125 -Vr (2016)), (Exhibit MEX -128); Laboratorios Doctor Obregón, "Diagnóstico 
Viroide Mancha de sol del Aguacate (ASBVd ) en Costa Rica", 18 de noviembre de 2015 (Avocado sunblotch 
viroid (ASBVd) detection in Costa Rica (2015)), (Exhibit MEX -129); Affidavit of Jesús Alberto Salas Sanabria  
(2019) , (Exhibit MEX -93); Affidavit of Eduardo Ramírez Castro  (2019) , (Exhibit MEX -94); Affidavit of Manrique 
Loáiciga González  (2019) , (Exhibit MEX -95); and Affidavit of Randall Benavides Rivera  (2019) ,  
(Exhibit  MEX-96)). 
921 Mexico's second written submission, para.  32. 
922 Centro de Investigación en Biología Celular y Molecular de la Univer sidad de Costa Rica, Oficio 
CIBCM -PCDV -021-2015, 6 de abril de 2015 (Memorandum CIBCM -PCDV -021-2015 (2015)), (Exhibit MEX -134). WT/DS524/R  
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  from different production areas of the country were analysed, but does not specify the places from 
which the samples were taken.923 
7.274.   Mexico also notes that, according to section 1.1 of ISPM No. 6, sources of information 
include : research institutions, universities, scientific societies (including amateur specialists), 
producers, consultants and the general public, and that it is recomme nded that the NPPOs develop 
a system whereby appropriate information is collected, verified and compiled . Mexico argues that, 
in this regard, the evidence submitted by Mexico comes from the CIBCM of the UCR itself, as well 
as from laboratory analysis and i nformation obtained from statistical sources .924 Mexico states that, 
while it is the prerogative of the NPPO of each WTO Member to decide the value it attaches to the 
information available, this does not mean that an NPPO should discredit information becaus e it 
comes from a source other than the NPPO, or because it contradicts the final determination in the 
NPPO's evaluation . For Mexico, certain evidence can and should be considered relevant and helpful 
in determining a pest's possible presence in a given te rritory, even though the information was not 
produced by an NPPO or is indirect information.925 
7.275.   For its part , Costa  Rica submits that Mexico has failed to present any evidence that ASBVd 
is present in Costa  Rica926, and that the multiple sampling surveys and  diagnostic tests provided by 
Costa  Rica in these proceedings prove the absence of ASBVd .927 Costa  Rica asserts that there is no 
evidence whatsoever on the record that demonstrates the presence of ASBVd in its territory.928 
7.276.   Costa  Rica asserts  that: 
a. Mexico has engaged in mere speculation and has failed to demonstrate that ASBVd is 
present in Costa  Rica, and the three pieces of evidence submitted by Mexico (the 
memorandum from the CIBCM of the UCR, Dr Obregón's report on two samples, and the 
testimonie s of importers) do not confirm the alleged presence of ASBVd in Costa  Rica929; 
b. The four sampling surveys carried out by Costa  Rica, with 1,325 samples analysed by 
molecular tests, have, to date, produced negative results for ASBVd in all instances, and 
confirm the absence of ASBVd in its territory930; 
c. This absence is confirmed by the phytosanitary databases of CABI and the EPPO931; and 
d. Costa  Rica considered ISPM Nos. 6 and 8 in its surveillance work and when determining 
the country's phytosanitary situation.932 
7.277.   Costa  Rica argues that the evidence submitted by Mexico does not prove the alleged 
presence of ASBVd in its territory .933 Furthermore, Costa  Rica asserts  that: 
a. The memorandum of the CIBCM of the UCR simply indicates that in the 2014 sample 
survey there wer e 25 false positives .934 Costa  Rica notes that Mexico argues that the 
presence of ASBVd was confirmed in 2014 by pointing to positive samples, but that, after 
 
923 Mexico's first written submission, para.  445. 
924 Mexico's specific comments on the experts' responses to Panel question No.  77 for the experts.  
925 Mexico's comments on the responses of Pablo Cortese and Ricardo Flores Pedauyé to the Panel's 
additional questions for Pablo Cortese and Ricardo Flores Pedauyé , paras.  12 and 18 . 
926 Costa Rica's first written submission, para.  5.98. 
927 Costa Rica's second written submission, paras.  3.30-3.31. 
928 Costa Rica's observations on Mexico's comments on the responses of Pablo Cortese and Ricardo 
Flores Pedauyé to the Panel's additional questions for Pablo Cortese and Ricardo Flores Pedauyé, para.  8. 
929 Costa Rica's opening statement at the first meeting of the Panel, para.  30; response to Panel 
question No.  26; second written submission, paras.  3.30, 3.75 and 3.84; specific comments on the experts' 
responses to Panel questions Nos. 77  and 78 for the experts.  
930 Costa Rica's first written submission, para.  3.27; opening statement at the first meeting of the Panel, 
para. 29; response to Panel question No.  26, para.  7. 
931 Costa Rica's first written submission, paras.  5.99 and 5.207.  
932 Costa  Rica's opening statement at the first meeting of the Panel, para.  27; response to Panel 
question No.  29; second written submission, para.  3.85. 
933 Costa Rica's opening statement at the first meeting of the Panel, para.  30. 
934 Costa Rica's opening statement at the first meeting of the Panel, para.  30 (citing Memorandum 
CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115)). WT/DS524/R  
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  those samples were sent by the Molecular Biology Laboratory of the UCR to Korea to be 
sequenced, t hese proved to be false positives .935 According to Costa  Rica, its status as 
free of ASBVd is confirmed by the two most reliable international phytosanitary databases, 
those of EPPO and CABI.936 
b. Dr Obregón's report on two samples allegedly infected with ASBV d was rebutted by the 
SFE, and contains no evidence whatsoever pertaining to the alleged sampling methodology 
or the chain of custody . Costa  Rica adds that the SFE located the producer concerned and 
took a sample from the same tree from which the original sample was allegedly taken, as 
well as 10 other surrounding trees, producing negative results for ASBVd937 through 
RT-PCR, which were sent to the Pest Diagnostic Laboratory of the SFE, in accordance with 
the entire sample custody protocol until the sample w as received by the laboratory.938 
c. The testimonies on the alleged presence of the pest were given, for the most part, by 
importers who disagree with any additional import requirement, which detracts from  the 
value of those testimonies, as the party has a cle ar interest . Moreover, they are 
statements by individuals and not expert reports, they are imprecise, without scientific 
merit and with internal contradictions that cast doubt on their validity.939 
7.278.   Costa  Rica further submits that Mexico confuses the determination of a pest status in an 
area (ISPM No. 8), together with the surveillance it entails (ISPM No. 6), with the establishment of 
a PFA (ISPM No. 4), the requirements for which are stricter, as they serve a  commercial purpose . 
Costa  Rica adds that, according to ISPM No. 5, the "status" of a pest is the "presence or absence, at 
the present time, of a pest in an area, including where appropriate its distribution, as officially 
determined using expert judgement  on the basis of current and historical pest records and other 
information" . Costa  Rica asserts that it has no obligation or commercial need to establish itself as a 
PFA.940 
7.279.   The Panel  observes that Mexico asserts that there is evidence from which it can be inferred 
that ASBVd is present in Costa  Rica. However, throughout the dispute, Mexico equates this 
"inference" that ASBVd is present in Costa  Rica with asserting or proving that ASBVd is present in 
Costa Rica, by basing some of its arguments on the premise  that ASBVd is present in Costa Rica.941 
Therefore, the Panel will analyse whether Mexico has demonstrated, as a matter of fact, that ASBVd 
is present in Costa Rica.  
7.280.   The Panel recognizes that information on the presence or absence of a pest in the territory  
of a WTO Member may only be in the possession  of that Member . Nevertheless, Mexico has asserted 
 
935 Costa Rica's first written submission, paras.  3.21, 5.99 and 5.208 (citing Memorandum CIBCM -PCDV -
021-2015 (2015), (Exhibit MEX -134)). 
936 Costa Rica's first written submission, para.  5.99 ( citing Centro de Biociencia Agrícola Internacional 
(CABI), Crop Protection Compendium, Datasheet report for Avocado sunblotch viroid (avocado sun blotch), 
12 de septiembre de 2019 (CABI (2019)), (Exhibit CRI -14); and EPPO, Global Database, Avocado sunblotch 
viroid (ASBVD0) Distribution details in Costa Rica, 21 de septiembre de 2019 (EPPO Costa Rica (2019)), 
(Exhibits CRI -41 and MEX -208); and EPPO Global Database, World distribution (2019), (Exhibit MEX -48)). 
937 Costa Rica's opening statement at the first meeting of the Panel, para.  30. 
938 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 14 -15. 
939 Costa Rica's opening statement at the first meeting of the Panel, para.  30. 
940 Costa Rica's first written submission, para.  5.100.  
941 For example, in its claim under Article 5.1 of the SPS Agreement, Mexico asserts that it "presented 
conclusive evidence demonstrating that the disease and the pathogenic agent have been present in 
Costa  Rica." (Mexi co's first written submission, para.  461). As part of that claim, Mexico also submits that 
Costa  Rica failed to consider the circumstances that had a direct impact on the outcome of the risk 
assessments, such as "the presence of sunblotch and ASBVd in Cost a Rica". (Mexico's first written submission, 
para. 386). In its claim under Article 5.5, Mexico asserts that, "[i]f we consider the viroid to be present in both 
territories, distinctions in the regulations aimed at fruit from Mexico and the absence of regu lation for 
Costa  Rican avocado producers point to unjustifiable or arbitrary differences." (Mexico's first written 
submission, para.  537). In its claim under Article 6.1, Mexico submits that the measures Costa Rica imposed 
on Mexico and other avocado -produ cing countries would need to be attenuated for the following reasons: "[i]n 
the avocado -producing areas of Costa Rica's territory, signs have also been found of the presence of ASBVd in 
areas where avocados are produced." (Mexico's  first written submission , para.  607). In its claim under 
Article  3.1 of the SPS Agreement, Mexico states that "[t]he laboratory analysis results for the first sampling 
survey show the presence of ASBVd and sunblotch disease in Costa Rica, and yet Costa Rica continues to 
assert th e absence thereof." (Mexico's second written submission, para.  297).  WT/DS524/R  
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  in the present dispute settlement proceedings  that ASBVd is present in Costa  Rica, thus the burden 
of proving that assertion  lies with Mexico  in these dispute settlement proceedings . 
7.281.   Mexico refers to affidavits made by a nursery worker, and Costa  Rican traders and importers 
as evidence of the presence of ASBVd in Costa  Rica. Exhibits MEX -93, MEX -94, MEX -95, and MEX -96 
submitted by Mexico are affidavits by an agr icultural engineer, an entrepreneur, an import manager 
and university professor, and an economist and importer and exporter of avocados and fruit in 
general, respectively.  
7.282.   The agricultural engineer attests that in 1966 he facilitated, as a Costa  Rican offi cial, the 
entry of a shipment of avocados containing genetic material, that the shipment did not bear any 
certification, but that he identified sunblotch disease, and that the same disease has been present 
on Gerardo Ocampo's estates in the Rincón de la Vi eja, Liberia, since 1966 . He states that ASBVd 
has always existed and it has never been an epidemic that has caused irreparable losses to the 
economy and commercialization of avocado.942 
7.283.   The entrepreneur attests that the pathology that could be sunblotch has been observed in 
the Los Santos zone and descending into the Valle del General and San José ; and states that no 
certification is or was required for marketing on the domestic market.943 
7.284.   The import manager and university professor attests that he exchanged views with 
Dr Obregón and became aware of the symptoms of sunblotch following the imposition of Costa  Rica's 
measures, and that he had seen sunblotch in fruit after 2015, but that he di d not know how to 
identify it before . He adds that Costa  Rica does not have the technical infrastructure for, nor has it 
carried out proper monitoring of the disease ; and that, in order to trade in domestic avocados, the 
Government of Costa  Rica does not r equest any certification on diseases.944 
7.285.   The economist and importer and exporter of avocados and fruit in general attests that he 
has been aware of the disease since 2015, and that he has observed it in Costa  Rican Hass avocado, 
including in fruit obtained from a farm in Santa María de Dota, San José, and in the Los Santos zone, 
as well as in avocados imported from Peru in 2018 . He states that the Government of Costa  Rica 
does not impose any requirement for the marketing of domestic fruit, including avocado.945 
7.286.   In this connection, the expert Pablo Cortese who advised this Panel is of the opinion that the 
affidavits submitted by Mexico in support of its argument concerning the presence of ASBVd in 
Costa  Rica are not officially recognized or validated by the NPP O, and should not be taken into 
account and should not constitute evidence within the meaning of the ISPM Nos. 6 and 8 to establish 
the presence of ASBVd in Costa  Rica.946 
7.287.   It is the opinion of this Panel that the aforementioned statements, according to whic h the 
symptoms of ASBVd and its disease have been identified visually, are not sufficiently reliable to 
prove the presence of ASBVd in Costa  Rica. In effect, as mentioned in section 2.3.2.4  above, 
diagnosis based on symptoms is not reliable, hence other reasonably sensitive diagnostic methods 
are necessary to determine the phytosanitary status of a tree .947 Moreover, in light of Mr Cortese's  
remarks, the Panel notes tha t the probative force of the affidavits of an agricultural engineer, an 
entrepreneur, an import manager and university professor, and an economist and importer and 
exporter of avocados and fruit cannot be equated with scientific evidence which could reliab ly prove 
the presence of ASBVd in a territory . Accordingly, the Panel does not consider that the presence of 
ASBVd in Costa  Rica's territory can be inferred  from the affidavits submitted by Mexico, as Mexico 
claims.  
7.288.   It should be noted that ISPM No. 8, which can serve as an illustrative tool with regard to the 
determination of pest status in an area, states that pest record information is available from many 
 
942 Affidavit  of Jesús Alberto Salas Sanabria  (2019) , (Exhibit MEX -93). 
943 Affidavit  of Eduardo Ramírez Castro  (2019) , (Exhibit MEX -94). 
944 Affidavit  of Manrique Loáiciga González  (2019) , (Exhibit MEX -95). 
945 Affidavit  of Randall Benavides Rivera  (2019) , (Exhibit MEX -96). 
946 Pablo Cortese's response to Panel question No.  77 for the experts; Pablo  Cortese's response to 
additional Panel question No.  1 for Pablo Cortese.  
947 Saucedo Carabez et al. (2019), (Exhibit  MEX-175), p. 8.  WT/DS524/R  
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  sources and has varying levels of reliability .948 ISPM No. 8 contains guidance for evaluating t he 
reliability of a pest record . The most reliable source is the NPPO record, and the least reliable source 
is a personal communication, unpublished.949 
7.289.   Mexico also refers to a memorandum from the CIBCM of the UCR . Exhibit MEX -115 contains 
the memorandum fr om the CIBCM of the UCR, dated 2 9 October  2014, which confirms that the 
membranes spotted with the samples taken between 1 September  2014 and 8 October  2014 were 
sent to Agdia Inc. ( Indiana, United  States ) for hybridization with ASBVd -specific probes, and 
presents the results, which include 16 samples that tested positive for ASBVd and five suspect 
samples.  
7.290.   The record of the dispute also includes Exhibit MEX -134. This exhibit contains another 
memorandum from the CIBCM of the UCR, dated 6 April 2015, which d etails the amplification and 
shipment to Macrogen Inc. (Korea) of 25 samples for sequencing, and which confirms that none of 
the samples tested positive, and that both the band observed in the gels and the earlier hybridization 
carried out by Agdia Inc. ( Indiana, United  States ) seem to be responsible for the false positives 
because of non -specific reactivity . The results are appended to the document.  
7.291.   With respect to the false positive and suspect samples, Exhibits CRI -15 and CRI -16 are also 
relevant . Exhibit CRI -16 contains the memorandum from the CIBCM of the UCR, dated 
17 March  2017, which states that the 25 samples included in the document contained in Exhibit 
MEX-134 correspond to the resampling and analysis of the 16 samples that Agdia Inc. reported 
presented hybridization with the ASBVd probe and the five samples where the hybridization was 
considered inconclusive, as reported in the document contained in Exhibit MEX -115. The 
memorandum adds that it also included four samples that the analysis carried o ut by Agdia Inc. 
found to be negative.  
7.292.   Exhibit CRI -15 contains the memorandum from the CIBCM of the UCR, dated 
9 September  2019, which details the explanation of the number of avocado samples re -evaluated 
using RT -PCR and those that were eventually sequenc ed. It states that two samples were not sent 
to Macrogen  Korea  because there was no amplification, and therefore there was nothing that could 
be subjected to the sequencing procedure.  
7.293.   The Panel considers the concerns expressed by the virology expert, Ricardo Flores Pedauyé , 
with regard to these assays to be relevant . On the basis of the documents pertaining to the false 
positives, Mr Flores Pedauyé state s that there are marked discrepancies between the results of the 
two techniques used, which gave rise to doubts . Mr Flores Pedauyé explain s that ASBVd usually 
accumulates to high levels, so it tends to be detected easily by both molecular hybridization (les s 
sensitive) and RT -PCR (more sensitive) . The expert observe s, however, that, with regard to the 
aforementioned 25 samples, of the 16 hybridized samples that tested positive, none generated the 
expected RT -PCR product when they were sequenced (which was on ly observed in the positive 
control from a third country), and that the authors of the analysis concluded that the hybridization 
signals were non -specific . Mr Flores Pedauyé said he was surprised by this marked  discrepancy, 
which was not consistent with hi s own experience of this type of analysis.950, 951 
7.294.   The Panel understands that the false positives in Costa  Rica's first sampling survey of 2014 
arouse certain doubts, and notes that the virology expert who advised the Panel expressed surprise 
at the results of the analysis of the tests in question submitted by Costa  Rica. However, the Panel 
does not consider that t he evidence in the record is sufficient to conclude that the initial positive or 
suspect results were not false positives, and that they prove the presence of ASBVd in Costa  Rica. 
 
948 ISPM No.  8, (Exhibit MEX -76), p. 6.  
949 ISPM No.  8, (Exhibit MEX -76), p. 7.  
950 Ricardo Flores Pedauyé's response to additiona l Panel question No.  1 for Ricardo Flores Pedauyé.  
951 The Panel refers  to Costa Rica's remark on the inputs provided by the expert Ricardo Flores Pedauyé 
in the sense that the Panel should value the inputs provided by this expert differently from those provided by 
the other experts, which, according to Costa Rica, could be explained , contextualized, qualified and expanded 
upon orally by the experts , and have been the focus of the exchange of views between the Panel, the parties 
and the other experts. In this regard, while it would have been preferable if Mr Flores Pedauyé could have 
attended the meeting with the experts,  the Panel disagrees with Costa Rica's view , insofar as this means that 
the Panel should give less weight to that expert's responses . The Panel will consider the responses of Mr Flores 
Pedauyé  to both the Panel's first questions and its additional questions  such as they were presented in writing.  WT/DS524/R  
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  7.295.   Furthermore, Mexico identifies what it refers to as the results of the labor atory analysis of 
samples taken in 2014 and 2015 -2016 in Costa  Rica as evidence of the presence of ASBVd in 
Costa  Rica, citing Exhibits MEX -64 and MEX -65.952 The Panel  observes that Exhibits MEX -64 and 
MEX-65 contain neither laboratory analysis results nor any other information indicating that ASBVd 
is present in Costa Rica.  
7.296.   Mexico also submits Exhibits MEX -127 and MEX -128/MEX -240, which contain, respectively, 
a SENASICA memorandum, dated 2 3 November  2015, with a report on  the positive ASBVd results 
of two s amples in the  Annex, and the report on the  positive ASBVd result of one sample . These 
exhibits indicate that they refer to leaf samples collected in San Isidro de León Cortez, Costa  Rica, 
and sent by Dr Miguel Obregón Gómez . In both cases, the diagnostic tests were carried out by the 
Comprehensive Phytosanitary Diagnostic Laboratory (LADIFIT ) in Mexico.  
7.297.   In addition, Mexico submits Exhibit MEX -129 as evidence of the presence of ASBVd953, which 
contains a document on ASBVd from Doctor Obregón's laboratory from 2015 that states that trees 
with symptoms similar to those described in the literature  have been observed in different parts of 
Costa  Rica since 1996 .954 The document indicates that some avocado producers had sent samples 
for the corresponding diagnostic test, which was why Dr Obregón had been working with Dr Daniel 
Téliz Ortiz, a research p rofessor of the Colegio de posgraduados  of Mexico, who processed the 
samples . The document adds that ASBVd was found in three of them.955 
7.298.   The three aforementioned Exhibits, i.e. MEX-127, MEX -128 and MEX -129, are related to the 
samples sent by Dr Obregón, wh ich were tested for ASBVd in Mexico . To rebut this evidence, 
Costa  Rica submitted Exhibit CRI -18, which is a letter, dated 1 8 December  2015, in which the 
Executive Director of the SFE states that as of that date the results were available for approximately  
150 samples that tested negative for ASBVd, including for the farm located in San Isidro de León 
Cortez and specifically the tree sampled and georeferenced by Dr Obregón .956 This exhibit also 
contains what is referred to as the sampling record of that tree .957 
7.299.   Similarly, in a press release dated 2 8 January  2016, the Government of Costa  Rica stated 
that, as part of the phytosanitary inspection programme, the SFE had carried out continuous 
surveillance of the country's avocado plantations, and that in response  to the allegation made by 
the plant pathologist, Miguel Obregón, an inspection sweep had been made of the production area 
of the Los Santos zone, where approximately 93 % of production is concentrated, including the place 
Dr Obregón mentioned as possibly i nfected with the disease, as well as the areas of Frailes, San 
Cristóbal, Bustamante de Desamparados and Cartago . The Government of Costa  Rica added that 
322 samples were collected, and that all the results, including those of the tree sampled and 
georeferenced by Dr Obregón, were negative for ASBVd . It quotes the Director of the SFE, who 
maintained that at all times officials had implemented th e chain of custody of the sample according 
to established official protocols, thereby ensuring the traceability of that sample .958 
7.300.   Mr Cortese notes that, in accordance with ISPM No. 6, phytosanitary surveillance is a national 
obligation, that is to say, an official process that must be carried out by the NPPO or another 
institution designated by the NPPO, but always supervised and audited by the latter959, and that the 
positive results for ASBVd of the LADIFIT tests of the samples taken in San Isidro de León Cortez, 
Costa  Rica, and sent by Dr Obregón, are neither official nor officially approved by the NPPO, thus 
they do not have probative force or the traceability required under ISPM No.  6.960 
 
952 Mexico's first written submission, para.  79 (citing Sampling survey 2014, (Exhibit MEX -64); and 
Sampling survey 2015 -2016, (Exhibit MEX -65)). 
953 Mexico's first written submission, paras.  51 and 388.  
954 Avocado Sunblotch Viroid (ASBVd) Diagnostic Testing in Costa Rica (2015), (Exhibit MEX -129), p. 7.  
955 Avocado Sunblotch Viroid (ASBVd) Diagnostic Test ing in Costa Rica (2015), (Exhibit MEX -129), p. 7.  
956 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Oficio 
DSFE.1023.2015, 18 de diciembre de 2015 (Obregón rebuttal (2015)), (Exhibit CRI -18), p. 4.  
957 Obregón rebuttal (2015), (Exhibit CRI -18), p. 3. 
958 Servicio Fitosanitario del Estado (SFE), Comunicado de prensa CP -02-2016, "Costa Rica confirma que 
'Mancha del sol' continua ausente" (28 de enero de 2016) (SFE, "Costa Rica confirms that 'sunblotch' is still 
absent" (2016)), (Exhibit MEX -89). 
959 Pablo Cort ese's response to Panel question No.  77 for the experts.  
960 Pablo Cortese's response to additional Panel question No.  1 for Pablo Cortese.  WT/DS524/R  
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  7.301.   The expert Pablo Cortese refers to ISPM No. 6, which states that al l NPPO s should be in a 
position to validate declarations of the absence or limited distribution of quarantine pests .961 ISPM 
No. 6 states that within countries there are many sources of pest information ; that these sources 
may include : NPPOs, other national  and local government agencies, research institutions, 
universities, scientific societies (including amateur specialists), producers, consultants, museums, 
the general public, scientific and trade journals, unpublished data and contemporary observations ; 
and that, in addition, the NPPO may obtain information from international sources such as FAO, 
RPPOs, etc .962 ISPM No. 6 also states that, to utilize data from these sources, it is recommended 
that NPPOs develop a system whereby appropriate information is co llected, verified and compiled.963 
7.302.   Bearing in mind Mr Cortese's opinion, the Panel notes that the laboratory analysis in the 
evidence submitted by Mexico was carried out in a laboratory (LADIFIT) in Mexico, and not in 
Costa  Rica, and that it does not appear  that the samples have been provided to Costa  Rica for it to 
review or inspect the results . The Panel also notes that only three leaf samples from the same tree 
were positive , and that the evidence presented cannot confirm the traceability of the samples . 
7.303.   Costa  Rica sets out  in Exhibit  CRI-18 how it addressed Dr  Obregón's report . The Panel  
observes  that said exhibit contains a sampling record dated 10  December  2015 for a sample the 
seal of which is found in Annex 9 to Costa Rica's response to the Panel's information request of 
3 August 2020. Exhibit CRI -18 mentions the laboratory code and states that the result of the sample 
was negative, without presenting the result. The result does not appear in Annex 9, but can be found 
in Annex 4. However, giv en that the geographical coordinates of the tree sampled by Dr Obregón 
are not found in the exhibits submitted by Mexico, the Panel cannot corroborate the follow -up that 
Costa Rica asserts it gave to the tree sampled by Dr  Obregón, even though Costa Rica's  sampling 
record contains coordinates. In any event , the burden of proof in this instance  lies with Mexico  for 
having asserted in the present dispute settlement proceedings  that ASBVd is present in Costa  Rica, 
and the Panel does not consider that it can fi nd, with the evidence provided, that ASBVd is present 
in Costa  Rica as a matter of fact.  
7.304.   It should also be noted that, as stated  above, pursuant to the guidance for evaluating the 
reliability of a pest record of ISPM No. 8, the NPPO record is considered th e most reliable source, 
and the least reliable source is a personal communication, unpublished.964 
7.305.   Mexico also refers to evidence of the propagati on material imported to Costa  Rica from 
California, United  States , through the Cantonal Agricultural Centre of Tarrazú . Mexico refers to 
Exhibits MEX -42, MEX -43, MEX -97 and CRI -47. However, the Panel does not find in the exhibits 
cited by Mexico any indication of propagati on material imported to Costa  Rica from California, 
United  States.  
7.306.    Moreover, as evidence from  which the presence of ASBVd in Costa  Rica's territory can be 
inferred , Mexico identifies the fact that there has been what it describes as  trade in fresh avocados 
for consumption from Mexico for more than 20 years without Costa  Rica having brought a complaint  
relative to those shipments965, as well as Costa  Rica's trade in fresh avocados for consumption from 
other countries where ASBVd is present, even after the application of the measures at issue, such 
as Peru and Guatemala.966 
7.307.   In that regard, Mexico notes that Costa  Rica has failed to explain how, after more than 
20 years of uninterrupted trade in avocados between Mexico and Costa  Rica (as well as other 
countries where ASBVd is also present), there is no record whatsoever of the entry, establishment 
and spread of ASBVd in its territory despite the high risk involved according to Costa  Rica's own 
PRAs.967 Mexico adds that it maintains its as sertion with regard to the fundamental contradiction in 
Costa  Rica's argument, namely : (i) that the risk of entry, establishment and spread of ASBVd defined 
 
961 ISPM No.  6, (Exhibit MEX -75), p. 4.  
962 ISPM No.  6, (Exhibit MEX -75), p. 5.  
963 ISPM No.  6, (Exhibit MEX -75), p. 5.  
964 ISPM No.  8, (Exhibit MEX -76), p. 7.  
965 Mexico's first written submission, para.  79 (citing "Crecex: Nunca se debió prohibir la importación del 
aguacate Hass", Elmundo.cr  (2019), (Exhibit MEX -90), p. 2).  
966 Mexico's first written submission, para.  79 (citing "I mportadores prevén un precio más alto para el 
aguacate Hass de Perú", La Nación  (2015), (Exhibit MEX -91), p. 1; and "Exigen a gobierno tico transparencia 
en negociación aguacate mexicano", prensa -latina.cu  (2019), (Exhibit MEX -92), p. 9).  
967 Mexico's second written submission, para.  21. WT/DS524/R  
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  as high by Costa  Rica is actually not, and the irrefutable proof of this is the alleged absence of ASBVd 
in its territory ; or (ii) that, as a result of this high risk of entry, establishment and spread, ASBVd is 
already present in Costa  Rica.968 
7.308.   The Panel understands Mexico's doubts regarding the trade between Costa  Rica and 
countries in which ASBVd is p resent, including Mexico before 2015969, in particular, regarding  the 
claim  that allegedly there is a high risk of entry, establishment and spread of ASBVd, but that this 
pest is still absent in Costa  Rica's territory . However, the Panel cannot determine, a s a matter of 
fact, that ASBVd is present in Costa  Rica on the basis of those doubts.  
7.309.   With regard to the declaration of Costa  Rica's territory as a PFA, Mexico stated that it "agrees 
with the experts that Costa  Rica was not required to establish a PFA within its territory".970 
7.310.   In light of the foregoing, the Panel concludes that Mexico has failed to demonstrate the fact 
it asserts  in the present dispute settlement proceedings , namely , that ASBVd is present in 
Costa  Rica. The Panel would like to clarify, however, that this conclusion is limited to the question 
of whether Mexico has demonstrated, as a matter of fact, that ASBVd is present  in Costa  Rica, which 
is a different issue to the determination that ASBVd is absent from Costa  Rica, a matter that will be 
addressed at a later stage in the Panel's analysis.  
7.4  Mexico's claims with respect to risk assessment obligations under the SPS  Agreem ent 
7.4.1   General introduction to the section  
7.311.   Mexico claims that : (i) Costa  Rica's measures are inconsistent with Article  5.1 of the 
SPS Agreement , as they are not based on a risk assessment within the meaning of paragraph 4 of 
Annex  A to the SPS  Agreement  or in  accordance with Article  5.1 of the SPS  Agreement971; 
(ii) Costa  Rica's measures are contrary to Article  5.2 of the SPS  Agreement  because Costa  Rica has 
failed to demonstrate that it considered the factors required by the SPS  Agreement  in its risk 
assessmen ts972; (iii) Costa  Rica breached Article  5.3 of the SPS  Agreement  by failing to take into 
account the relevant economic factors in assessing risk and determining its measures973; and 
(iv) Costa  Rica's measures are inconsistent with Article  2.2 of the SPS  Agreement  in that they are 
not based on scientific principles and have been maintained without sufficient scientific evidence.974 
7.312.   Costa  Rica claims that Mexico has failed to demonstrate that Costa  Rica's measures are 
inconsistent with Articles 5.1, 5.2, 5.3, and 2.2 of the SPS  Agreement . 
7.313.   The Panel will next examine the relevant legal provisions and the legal standard applicable 
to them . The Panel will subsequently  determine the structure of the analysis that it will follow in 
assessing Mexico's claims und er Articles 5.1, 5.2, 5.3, and 2.2 of the SPS  Agreement . The Panel will 
then proceed to  analyse whether Mexico has substantiated its claims under these Articles.  
7.4.2   The r elevant legal provisions  
7.314.   Articles 5.1, 5.2, and 5.3 of the SPS  Agreement  provide as follo ws: 
1. Members shall ensure that their sanitary or phytosanitary measures are based on an 
assessment, as appropriate to the circumstances, of the risks to human, animal or plant 
life or health, taking into account risk assessment techniques developed by th e relevant 
international organizations.  
 
968 Mexico's second written submission, paras.  21 and 180.  
969 The Panel note s that the matter of the more than 20 years of trade is an issue contested between 
the parties. The Panel will address this matter in paragraphs 7.1536 through 7.1541 below.  
970 Mexico's specific comments on the experts' responses to Panel questions Nos. 164 , 165 and 167 for 
the experts; response to Panel question No.  129. 
971 Mexico's second written submission, paras.  169 and 188.  
972 Mexico's first written submission, paras.  428-429. 
973 Mexico's first written submission, paras.  479-480. 
974 Mexico's first written submission, para.  510. WT/DS524/R  
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  2. In the assessment of risks, Members shall take into account available scientific 
evidence ; relevant processes and production methods ; relevant inspection, sampling 
and testing methods ; prevalence of specific disea ses or pests ; existence of pest - or 
disease -free areas ; relevant ecological and environmental conditions ; and quarantine 
or other treatment.  
3. In assessing the risk to animal or plant life or health and determining the measure 
to be applied for achieving the appropriate level of sanitary or phytosanitary protection 
from such risk, Members shall take into account as relevant economic factors : the 
potential damage in terms of loss of production or sales in the event of the entry, 
establishment or spread of a  pest or disease ; the costs of control or eradication in the 
territory of the importing Member ; and the relative cost -effectiveness of alternative 
approaches to limiting risks.  
7.315.   Paragraph 4 of Annex A to the SPS  Agreement  defines the "risk assessment" relev ant to this 
dispute as "[t]he evaluation of the likelihood of entry, establishment or spread of a pest or disease 
within the territory of an importing Member according to the sanitary or phytosanitary measures 
which might be applied, and of the associated potential biological and economic consequences".975 
7.316.   Article  2.2 establishes the following:  
2. Members shall ensure that any sanitary or phytosanitary measure is applied only to 
the extent necessary to protect human, animal or plant life or health, is based on 
scientific principles and is not maintained without sufficient scientific evidence, except 
as provided for in paragraph 7 of Article  5. 
7.4.3   The Panel's standard of review and the legal standard  
7.317.   In this section, the Panel will describe how other panels  and the Appellate Body have 
understood the standard of review under Article  5.1 of the SPS  Agreement  and have interpreted the 
legal provisions relevant to Mexico's risk assessment claims, i.e. Articles 5.1, 5.2, 5.3, and 2.2 of 
the SPS  Agreement . The Pane l will be guided by this standard of review and these interpretations to 
the extent that they are relevant to its analysis.  
7.4.3.1   The Panel's standard of review under Article  5.1 of the SPS  Agreement  
7.318.   With regard to review under Article  5.1 of the SPS  Agreement , the Appellate Body in 
US/Canada – Continued Suspension  explained that "[i]t is the WTO Member's task to perform the 
risk assessment . The panel's task is to review that risk assessment."976 The Appellate Body clarified 
that where a panel acts as a risk asses sor, it would be substituting its own scientific judgement for 
that of the risk assessor and making a de novo  review and, consequently, would exceed its functions 
under Article  11 of the DSU.977 
7.319.   Therefore, according to the Appellate Body, in cases where a p anel must examine a Member's 
risk assessment, its review power is not to determine whether the risk assessment undertaken is 
correct, but rather "to determine whether that risk assessment is supported by coherent reasoning 
and respectable scientific eviden ce and is, in this sense, objectively justifiable" .978 A WTO Member 
 
975 The definition of "risk assessment" in paragraph 4 of Annex A to the SPS Agreement also covers a 
second type of risk assessment, defined as the "evaluation of the potential for adverse effects on human or 
animal health arising from  the presence of additives, contaminants, toxins or disease -causing organisms in 
food, beverages or feedstuffs". The SPS measures at issue in this dispute (i.e. the resolutions, which contain 
the phytosanitary requirements) are aimed at protecting plants f rom risks arising from the entry, 
establishment or spread of a pest or disease, and not from risks arising from additives, contaminants, toxins or 
disease -causing organisms in foods, so the type of risk assessment required is the one defined in the first p art 
of paragraph 4 of Annex A.  
976 Appellate Body Reports, US/Canada – Continued Suspension , para.  590. 
977 Appellate Body Reports, US/Canada – Continued Suspension , para.  590. 
978 Appellate Body Reports, US/Canada – Continued Suspension , para.  590. WT/DS524/R  
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  may even base an SPS measure "on divergent or minority views, as long as these views are from 
qualified and respected sources".979 
7.320.   Accordingly, this Panel's role will be to determine whether  Costa  Rica's risk assessment is 
supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively 
justifiable.  
7.4.3.2   Legal standard under Article  5.1 of the SPS  Agreement  
7.321.   Pursuant to the text of Article  5.1 of the SPS  Agreem ent, the evaluation under this Article 
requires a panel to examine : (i) whether there is a risk assessment, as appropriate to the 
circumstances, taking into account risk assessment techniques developed by the relevant 
international organizations ; and, (ii)  if there is a risk assessment, whether the SPS measure of the 
Member concerned is based on it.  
7.322.   On the basis of the definition in paragraph 4 of Annex A to the SPS  Agreement , the Appellate 
Body noted that a risk assessment within the meaning of Article  5.1, of the type relevant to this 
dispute, must : "(1) identify  the diseases whose entry, establishment or spread a Member wants to 
prevent within its territory, as well as the potential biological and economic consequences associated 
with the entry , establishment or spread of these diseases ; (2) evaluate the likelihood  of entry, 
establishment or spread of these diseases, as well as the associated potential biological and 
economic consequences ; and (3) evaluate the likelihood of entry, establishment or spread of these 
diseases according to the SPS measures which might be applied ."980 
7.323.   On the basis of the ordinary meaning of the terms in the definition of the first type of risk 
assessment in Annex A(4), as well as on the basis of the definition of "risk"  and "risk assessment" 
developed by the relevant international organization in that case, the Appellate Body explained in 
Australia – Salmon  that a proper risk assessment of this type must evaluate the probability of entry, 
establishment or spread of disea ses and associated biological and economic consequences, and that 
it is not sufficient for it to conclude that there is a possibility of entry, establishment or spread of 
diseases and associated biological and economic consequences.981 
7.324.   The assertion by the Appellate Body in Australia – Salmon  that it is not sufficient for a risk 
assessment of the first type to conclude that there is a possibility of entry, establishment or spread 
of diseases and associated biological and economic consequences is also applica ble in phytosanitary 
matters .982 Indeed, ISPM No. 5, produced within the framework of  the IPPC, defines "pest risk" (for 
quarantine pests) as "[t]he probability of introduction and spread of a pest and the magnitude of 
the associated potential economic cons equences", and "pest risk assessment" (for quarantine pests) 
as "[e]valuation of the probability of the introduction and spread of a pest and the magnitude of the 
associated potential economic consequences".983 
7.325.   Science plays a "central" or "fundamental" rol e in a risk assessment .984 The Appellate Body 
in EC – Hormones  agreed with the panel that a risk assessment under Article  5.1 is "a scientific  
process aimed at establishing the scientific  basis for the sanitary measure a Member intends to 
take" .985 The Appel late Body also considered the panel's statement "unexceptionable", "[t]o the 
 
979 Appellate Body Reports, US/Canada – Continued Suspension , para.  591 (citing Appellate Body 
Report, EC – Hormones , para.  194). See also Appellate Body Report, Korea – Radionuclides , para.  5.106.  
980 Appellate Body Report, Australia – Salmon , para.  121. (empha sis original) See also Appellate Body 
Reports, Japan – Agricultural Products II , para.  112; and Japan – Apples , para.  196. 
981 Appellate Body Report, Australia – Salmon , para.  123. See also Panel  Report , EC – Approval and 
Marketing of Biotech Products , paras . 7.3045 and 7.3145.  
982 Appellate Body Report, Australia – Salmon , para.  123. See also Panel  Report , EC – Approval and 
Marketing of Biotech Products , paras.  7.3045 and 7.3145.  
983 ISPM No.  5, (Exhibit MEX -74), p. 14.  
984 Appellate Body Reports, India – Agricultural Products , para.  5.19; US/Canada – Continued 
Suspension , para.  527; and Australia – Apples , para.  207. 
985 Appellate Body Report, EC – Hormones , para.  187 (citing Panel  Report s, EC – Hormones (US) , 
para. 8.107; and EC – Hormones (Canada) , para.  8.110). (emphasis original)  WT/DS524/R  
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  extent that the Panel intended to refer to a process characterized by systematic, disciplined and 
objective enquiry and analysis, that is, a mode of studying and sorting out facts  and opinions".986 
7.326.   In Australia – Apples , the Appellate Body referred to US/Canada – Continued Suspension  
and explained that, in reviewing a risk assessment, a panel must scrutinize both the underlying 
scientific basis and the reasoning of the risk assessor based upon such underlying science.987 
7.327.   With respect to the first aspect, i.e. the scientific basis, the Appellate Body saw the panel's 
role as "limited to reviewing whether the scientific basis constitutes 'legitimate science according to 
the standards of the relevant scientific community'" .988 The Appellate Body added that panels must 
determine whether "the scientific basis of the risk assessment comes from a respected and qualified 
source and can accordingly be considered 'legitimate science' according to the standards of the 
relevant scientific community".989 
7.328.   Regarding this criterion, the Appellate Body in US/Canada – Continued Suspension  noted 
that, "[a]lthough the scientific basis need not represent the majority view within the scientific 
community, it must nevertheless have the necessary scientific and methodological rigour to be 
considered reputable scien ce".990 
7.329.   Concerning the second aspect, i.e. the reasoning of the risk assessor, in Australia – Apples , 
the Appellate Body perceived the panel's role as involving "an assessment of whether the reasoning 
of the risk assessor is objective and coherent, that is, whether the conclusions find sufficient support 
in the scientific evidence relied upon".991 
7.330.   The App ellate Body also clarified that a panel should first determine whether the scientific 
basis relied upon by the risk assessor is "legitimate" before reviewing whether the reasoning and 
the conclusions of the risk assessor that rely upon such a scientific ba sis are objective and 
coherent.992 
7.331.   Having done so, the panel must determine whether the results of the risk 
assessment  sufficiently warrant the challenged SPS measures .993 According to the Appellate Body in 
Australia – Apples , this reasoning is consistent wi th the overarching requirement in Article  2.2 and 
reflected in Articles 5.1 and 5.2 that there be a "rational or objective relationship" between the SPS 
measures and the scientific evidence.994 
7.332.   In this regard, the Appellate Body in India – Agricultural Prod ucts noted that a panel's task 
encompasses a scrutiny of the scientific basis underlying a risk assessment and, ultimately, the SPS 
measure at issue.995 
7.333.   It should be noted that the Appellate Body in Australia – Apples  explained that, in US/Canada 
– Continue d Suspension , the Appellate Body "did not set out a series of steps that a panel must 
mechanically follow in the evaluation of a risk assessment", but suggested a way (or practical 
 
986 Appellate Body Report, EC – Hormones , para.  187. See also Appellate Body Reports, Australia – 
Apples , para.  207; and US/Canada – Continued Suspension , para.  527 (citing Appellate Body R eport, EC – 
Hormones , para.  187).  
987 Appellate Body Report, Australia – Apples , para.  215. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para.  591. 
988 Appellate Body Report, Australia – Apples , para.  215. See also Appellate Body Reports,  US/Canada – 
Continued Suspension , para.  591. 
989 Appellate Body Report, Australia – Apples , para.  220. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para.  591. 
990 Appellate Body Reports, US/Canada – Continued Suspension , para.  591. 
991 Appellate Body Report, Australia – Apples , para.  215. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para.  591. 
992 Appellate Body Report, Australia – Apples , para.  220. 
993 Appellate Body Report, Australia – Apples , para.  215 (citing Appel late Body Reports, US/Canada – 
Continued Suspension , para.  591, in turn citing Appellate Body Report, EC – Hormones , para.  193).  
994 Appellate Body Report, Australia – Apples , para.  215. 
995 Appellate Body Report, India – Agricultural Products , para.  5.22 (cit ing Appellate Body Report, 
Australia – Apples , para.  215, in turn citing Appellate Body Reports, US/Canada – Continued Suspension , 
para. 591).  WT/DS524/R  
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  guidelines) centred on the notion that the risk assessment should be evalua ted in light of the 
scientific evidence on which it relies.996 
7.334.   Also relevant is the observation of the panel in Australia – Salmon  (Article  21.5 – Canada ) 
that the reference made in Articles 5.1, 5.2, and 2.2 to a series of objective factors such as "risk 
assessment techniques developed by the relevant international organizations", "available scientific 
evidence", "scientific principles" and "sufficient scientific evidence" strengthened its view that the 
evaluation of probability needs to achieve a certain l evel of objectivity .997 This is in line with the 
Appellate Body's observation that the reference to a process characterized by systematic, disciplined 
and objective enquiry and analysis is unexceptionable.998 
7.4.3.3   Legal standard under Article  5.2 of the SPS  Agree ment  
7.335.   Article  5.2 requires Members to take into account certain elements in the assessment of 
risks. These elements are : (i) available scientific evidence ; (ii) relevant processes and production 
methods ; (iii) relevant inspection, sampling and testing metho ds; (iv) prevalence of specific 
diseases or pests ; (v) existence of pest - or disease -free areas ; (vi) relevant ecological and 
environmental conditions ; and (vii) quarantine or other treatment.  
7.336.   In considering the factors that should be taken into account in the assessment of risk, the 
Appellate Body in EC – Hormones  referred to the factors in Article  5.2 of the SPS  Agreement .999 With 
respect to these factors, the Appellate Body noted that a panel cannot exclude from the scope of a 
risk assessment "all matters not susceptible of quantitative analysis by the empirical or experimental 
laboratory methods commonly associated with the physical sciences", and that there are elements 
in Article  5.2 such as  "relevant processes and production methods" and "relevant inspection, 
sampling and testing methods" that are not necessarily or wholly susceptible of investigation 
according to laboratory methods .1000 Moreover, the Appellate Body explained that the listing of 
factors in Article  5.2 is not a closed list1001, and that "[i]t is essential to bear in mind that the risk 
that is to be evaluated … is not only risk ascertainable in a science laboratory operating under strictly 
controlled conditions, but also risk … in the real world".1002 
7.337.   Referring to these observations, the Appellate Body reiterated, in Australia – Apples , that 
the list in Article  5.2 is not a "closed list" and "does not a priori  exclude factors that are not 
susceptible of quantitative analysis by the empirical or experimental laboratory methods commonly 
associated with the physical sciences" .1003 Thus, Article  5.2 "requires a risk asse ssor to take into 
account the available scientific evidence, together with other factors".1004 
7.338.   In Australia – Apples , the Appellate Body further explained that whether a risk assessor has 
taken into account the available scientific evidence in accordance wit h Article  5.2 of the 
SPS Agreement  and whether its risk assessment is a proper risk assessment within the meaning of 
Article  5.1 and Annex A(4) "must be determined by assessing the relationship between the 
conclusions of the risk assessor and the relevant available scientific evidence".1005 
7.339.   The panel in US – Continued Suspension  was of the view that taking available scientific 
evidence into account "does not require that a Member conform its actions to a particular conclusion 
in a particular scientific study" , since "[t]he available scientific information may contain a multiplicity 
of views and data on a particular topic" .1006 Article 5.2 aims to ensure that a Member, when assessing 
 
996 Appellate Body Report, Australia – Apples , para.  219. 
997 Panel  Report , Australia – Salmon  (Article 21.5 – Canada ), para.  7.48. 
998 Appellate Body Report, EC – Hormones , para.  187. See also Appellate Body Reports, Australia – 
Apples , para.  207; and US/Canada – Continued Suspension , para.  527 (citing Appellate Body Report, 
EC – Hormones , para.  187).  
999 Appellate Bo dy Report, EC – Hormones , para.  187. 
1000 Appellate Body Report, EC – Hormones , para.  187. 
1001 Appellate Body Report, EC – Hormones , para.  187. 
1002 Appellate Body Report, EC – Hormones , para.  187. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para. 527; and India – Agricultural Products , para.  5.19. 
1003 Appellate Body Report, Australia – Apples , para.  207. 
1004 Appellate Body Report, Australia – Apples , para.  208. See also Appellate Body Report, India – 
Agricultural Products , para.  5.19. 
1005 Appellate Body Report, Australia – Apples , para.  208. 
1006 Panel  Report , US – Continued Suspension , para.  7.480.  WT/DS524/R  
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  risk, "has as wide a range as possible of scientific information before it to en sure that its measure 
will be based on sufficient scientific data and supported by scientific principles".1007 
7.340.   With respect to the relationship between Articles 5.1 and 5.2 of the SPS  Agreement , the 
panel in Japan – Apples  considered that "[t]hese provisions  directly inform each other", in that 
Article  5.2 "sheds light on the elements that are of relevance in the assessment of risks" foreseen 
in Article  5.1.1008 That panel was of the opinion that Article  5.2 "imparts meaning to the general 
obligation" contained in Article  5.1, and that, in the course of its analysis under Article  5.1, it might 
also consider elements contained in Article  5.2.1009 
7.341.   The panel in Australia – Apples  also noted that Article  5.2 is inextricably linked to Article  5.1, 
as Article  5.2 enumerates a list of factors that must be taken into account by Members when 
conducting their risk assessments1010, and that Article  5.2 would be considered when looking at 
Article  5.1.1011 In the same vein, the panel in US – Poultry (China)  considered that Article  5.2 of the 
SPS Agreement  "instructs WTO Members on how to conduct a risk assessment".1012 
7.342.   Following the reasoning of the panel in Japan – Apples , the panel in US – Poultry (China)  
noted that, in the course of its analysis under Article  5.1, it might also consider elements contained 
in Article  5.2.1013 Similarly, the panel in US – Animals  explained that it agreed that claims under 
Article  5.2 should be examined within the context of the analysis of claims under Article  5.1.1014 
7.343.   The panel in US – Animals  further considered that, when determining whether a risk 
assessment is "appropriate to the circumstances" in accordance with Article  5.1 of the 
SPS Agreement , the question of whether the elements set forth in Articles 5.2 and 5.3 were taken 
into account is relevant.1015 
7.344.   In short, as noted by other panels and the Appellate Body, the list in Article  5.2 is not a 
closed list, Article  5.2 requires the risk assessor to take into account available scientific evidence, 
together with other factors, and whether a risk assessor has taken into account the available 
scientific evidence in accordance with Article  5.2 must be determined by assessing the relationship 
between the conclusions of the risk assessor and the relevant available scientific evidence . In 
addition, other panels have included within an analysis of Article  5.1 of the SPS  Agreement  an 
assessment of whether the elements listed in Article  5.2 of the SPS  Agreement  were taken into 
account.1016 
7.4.3.4   Legal standard under Article  5.3 of the SPS  Agreement  
7.345.   Article 5.3 requires Members to take into account certain relevant economic factors both in 
assessing risk and in determining the measure to be applied for achieving the appropriate level of 
sanitary or phytosanitary protection from such risk . These relevan t economic factors are : (i) the 
potential damage in terms of loss of production or sales in the event of the entry, establishment or 
spread of a pest or disease ; (ii) the costs of control or eradication in the territory of the importing 
Member ; and (iii)  the relative cost -effectiveness of alternative approaches to limiting risks.  
 
1007 Panel  Report , US – Continued Suspension , para.  7.480.  
1008 Panel  Report , Japan – Apples , para.  8.230.  
1009 Panel  Report , Japan – Apples , para.  8.232. See also Panel  Report , US – Poultry (China) , para.  7.172 
(citing Panel  Report , Japan – Apples , para.  8.232).  
1010 Panel  Report , Australia – Apples , para.  7.211 (citing Appellate Body Reports, US/Canada – 
Continued Suspension , para.  527).  
1011 Panel  Report , Australia – Apples , para.  7.211.  
1012 Panel  Report , US – Poultry (China) , para.  7.171.  
1013 Panel  Report , US – Poultry (China) , para.  7.172 (citing Panel  Report , Japan – Apples , para.  8.232).  
1014 Panel  Report , US – Animals , para.  7.320 (citing Panel  Report , Australia – Apples , para.  7.211, in 
turn citing Panel  Report , Japan – Apples , para.  8.230).  
1015 Panel  Report , US – Animals , para.  7.323.  
1016 Panel  Report , US – Poultry (China) , para.  7.173. See also Appellate Body Report, India – 
Agricultural Products , para.  5.8; and Panel  Report , EC – Approval and Marketing of Biotech Products , 
para. 7.3019.  WT/DS524/R  
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  7.346.   The panel in Russia – Pigs (EU) , interpreting this provision for the first time, considered that 
"there is no indication ... that the factors listed are only by way of example, rat her this is presented 
as a complete list".1017 
7.347.   The panel in Russia – Pigs (EU)  reviewed the interpretations that other panels have given of 
expressions similar to "shall take into account" in Articles 5.1, 5.2, 5.4, and 10.1 of the 
SPS Agreement  and 12.3 of the TBT  Agreement , and expressed its agreement with these 
interpretations .1018 The panel referred to, among other matters, the panel in US – Animals , which 
noted that "to take into account" means "to take into consideration, notice" and does not require 
any particular result of that consideration.1019 
7.348.   The panel in Russia – Pigs (EU)  considered that a Member has the obligation to give 
consideration to the relevant economic factors listed in Article  5.3, and not to other economic factors, 
but that this obligation does not imply that consideration of the relevant economic factors will req uire 
a particular course of action from the Member imposing an SPS measure .1020 According to that panel, 
it is the complaining party who bears the burden to demonstrate that the responding party did not 
take into account the relevant economic factors listed in that provision.1021 
7.349.   The panel in Russia – Pigs (EU)  further noted that Article  5.3 refers to the obligation of taking 
into account the relevant economic factors listed therein in two different situations : (i) when 
assessing the risk to animal or plant life and health ; and (ii)  when determining the measure to be 
applied to achieve the appropriate level of sanitary or phytosanitary protection.1022 
7.350.   The panel in Russia – Pigs (EU)  considered that the first situation is informed by the 
obligation to base  SPS measures on scientific principles (Article  2.2), through an assessment of risk 
appropriate to the circumstances (Articles 5.1 and 5.2), and was of the opinion that the obligation 
to take into account relevant economic factors when assessing risk is co ntingent upon the obligation 
to base an SPS measure on a risk assessment pursuant to Articles 5.1 and 5.2 of the 
SPS Agreement .1023 
7.351.   For the panel in Russia – Pigs (EU) , any Member that does not base its SPS measures on a 
risk assessment, as defined in Articl e 5.1 and paragraph 4 of Annex A to the SPS  Agreement , "would 
not be in a position to act in a manner consistent" with Article  5.3.1024 
7.352.   The panel in US – Animals  considered that, when determining whether a risk assessment is 
"appropriate to the circumstances " in accordance with Article  5.1, the question of whether the 
elements set forth in Articles 5.2 and 5.3 were taken into account is relevant.1025 
7.353.   With respect to the second situation, i.e. determining the measure to be applied to achieve 
the ALOP, the panel in Russia – Pigs (EU)  considered that the relevant economic factors listed in 
Article  5.3 should be taken into account in the context of compliance with Articles 2.2, 5.4, and 5.6 
of the SPS  Agreement .1026 
7.354.   In short, the panel in Russia – Pigs (EU) , the only panel to interpret Article  5.3, considered 
that it provides a closed list of factors that must be taken into account in the assessment of risks 
and in determining the measure to be applied to achieve the ALOP, and that this obligation does not 
require a pa rticular course of action from the Member imposing an SPS measure . Moreover, the 
panel in US – Animals  has considered it relevant to analyse whether the elements in Article  5.3 have 
been taken into account when examining claims under Article  5.1. 
 
1017 Panel  Report , Russia – Pigs (EU) , para.  7.759.  
1018 Panel  Report , Russia – Pigs (EU) , paras.  7.760–7.767.  
1019 Panel  Report , Russia – Pigs (EU) , para.  7.763 (citing Panel  Report s, US – Animals , para.  7.401, in 
turn citing Appellate Body Report, Korea – Various Measures on Beef , para.  111; and Panel  Report s, US – 
COOL , para.  7.776).  
1020 Panel  Report , Russia – Pigs (EU) , para.  7.767.  
1021 Panel  Report , Russia – Pigs (EU) , para.  7.768.  
1022 Panel  Report , Russia – Pigs (EU) , para.  7.769.  
1023 Panel  Report , Russia – Pigs (EU) , para.  7.770.  
1024 Panel  Report , Russia – Pigs (EU) , para.  7.775.  
1025 Panel  Report , US – Animals , para.  7.323.  
1026 Panel  Report , Russia – Pigs (EU) , para.  7.771.  WT/DS524/R  
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  7.4.3.5   Legal sta ndard under Article  2.2 of the SPS  Agreement  
7.355.   As its title indicates, Article  2 establishes "basic rights and obligations" . In accordance with 
Article  2.2 of the SPS  Agreement , Members shall ensure that any SPS measure is applied only to the 
extent necessar y to protect human, animal or plant life or health, is based on scientific principles 
and is not maintained without sufficient scientific evidence, except as provided for in Article  5.7. 
7.356.   The Appellate Body in Australia – Apples  stated  that Article  2.2 "focuses on the need for an 
SPS measure to be based on scientific principles and sufficient scientific evidence".1027 
7.357.   The Appellate Body in India – Agricultural Products  explained that a panel's task under 
Article  2.2, as under Articles 5.1 and 5.2, encompas ses a scrutiny of the scientific basis underlying 
a risk assessment and the SPS measure at issue.1028 
7.358.   Regarding the sufficiency of scientific evidence, the Appellate Body in Japan – Agricultural 
Products II  considered that the ordinary meaning of "sufficient " is "of a quantity, extent, or scope 
adequate to a certain purpose or object", and that, from this, it can be concluded that "'sufficiency' 
is a relational concept" that "requires the existence of a sufficient or adequate relationship between 
two elements , in casu , between the SPS measure and the scientific evidence" .1029 The Appellate 
Body in that dispute rejected the argument that direct application of Article  2.2 should be limited to 
situations in which the scientific evidence is "patently" insufficient .1030 The Appellate Body noted that 
the obligation under  Article  2.2 that an SPS measure not be maintained without sufficient scientific 
evidence requires that there be a rational or objective relationship between the SPS measure and 
the scientific evidence.1031 
7.359.   The Appellate Body in India – Agricultural Products  stated that an assessment of whether a 
rational or objective relationship exists between the SPS measure and the scientific evidence must 
be undertaken in light of the particular circumstances of the cas e, including the characteristics of 
the measure at issue and the quality and quantity of the scientific evidence.1032 
7.360.   In addition, the Appellate Body considered that an assessment of the consistency of an SPS 
measure with Article  2.2 would involve consideration of evidence relating to the specific risks against 
which the SPS measure seeks to protect .1033 Similarly, the panel in Japan – Apples (Article  21.5 – 
US) noted that, in order for scientific evidence to support a measure sufficiently, it seems l ogical 
that such "scientific evidence must also be sufficient to demonstrate the existence of the risk which 
the measure is supposed to address", and that, as a result, it seems reasonable to consider "the 
extent of the relationship between the scientific evidence and the risk which this evidence is claimed 
to establish".1034 
7.361.   The Appellate Body in Japan – Apples  rejected the contention that, when analysing and 
assessing scientific evidence, a panel is obliged to give precedence to the importing Member's 
appro ach to scientific evidence and risk.1035 
7.362.   Regarding the relationship between Articles 2.2 and 5.1, the Appellate Body has explained 
that Article  5.1 may be viewed as "a specific application of the basic obligations" contained in 
Article  2.21036 or as containing  "more specific elaborations" of those basic obligations1037, that the 
 
1027 Appellate Body Report, Australia – Apples , para.  209. 
1028 Appellate Body Report, India – Agricultural Products , para.  5.22. 
1029 Appellate Body Report, Japan – Agricultural Products II , para. 73. 
1030 Appellate Body Report, Japan – Agricultural Products II , para.  82. 
1031 Appellate Body Report, Japan – Agricultural Products II , para.  84 (citing Panel  Report , Japan – 
Agricultural Products II , paras.  8.29 and 8.42).  
1032 Appellate Body Report, India – Agricultural Products , para.  5.26 (citing Appellate Body Reports, 
Japan – Agricultural Products II , para.  84; and Japan – Apples , para.  164).  
1033 Appellate Body Report, India – Agricultural Products , paras.  5.26-5.27. 
1034 Panel  Report , Japan – Apples (Article 21.5 – US), para.  8.45. 
1035 Appellate Body Report, Japan – Apples , paras.  166-167. 
1036 Appellate Body Reports, EC – Hormones , para.  180; US/Canada – Continued Suspension , para.  526; 
and Australia – Apples , para.  209. 
1037 Appellate Body Reports, India – Agricultural Products , para.  5.12; and Australia – Apples , para.  341. WT/DS524/R  
- 168 - 
  two Articles "should constantly be read together"1038 and that Article  2.2 "informs" Article  5.1, since 
the elements that define the basic obligation set out in Article  2.2 impart meaning to Article  5.1.1039 
7.363.   However, the Appellate Body in India – Agricultural Products  clarified that Articles 5.1 and 
5.2 do not in any way serve to limit the scope of application of Article  2.2, or vice versa1040, but that 
"all of these obligations apply t ogether".1041 
7.364.   The Appellate Body in Australia – Apples  noted that there is a "one -way, dependent 
relationship ... between the more specific provisions of Article 5.1 or Article 5.2, on the one hand, 
and the more general provisions of Article 2.2, on the othe r hand . Thus, ... a violation of Article 5.1 
or Article 5.2 can be presumed to imply a violation of Article 2.2, but ... the reverse does not hold 
true".1042 Moreover, in India – Agricultural Products , the Appellate Body, referring to its previous 
reports, s tated that an SPS measure found to be inconsistent with Articles 5.1 and 5.2 can be 
presumed, more generally, to be inconsistent with Article  2.2.1043 
7.365.   The Appellate Body explained that, nonetheless, the terms used in these Articles "are not 
identical" and th at, therefore, their respective scopes may not be entirely coextensive .1044 
Accordingly, although a finding of a violation of Articles 5.1 and 5.2 may give rise to a presumption 
of inconsistency with Article  2.2, such presumption cannot be irrebuttable, that  is, it cannot be 
excluded that there may be circumstances in which an SPS measure that violates Articles 5.1 and  5.2 
will not be inconsistent with Article  2.2.1045 
7.366.   The Appellate Body also noted that, even though the presumption of inconsistency is 
rebuttabl e, establishing that there exists a rational or objective relationship between the SPS 
measure and the scientific evidence for the purposes of Article  2.2 would, in most cases, be difficult 
without a Member demonstrating that such a measure is based on an assessment of the risks, as 
appropriate to the circumstances.1046 
7.367.   In short, as noted by the Appellate Body, a panel's task under Article  2.2 encompasses a 
scrutiny of the scientific basis underlying a risk assessment and the SPS measure at issue, and the 
obligation that an SPS measure not be maintained without sufficient scientific evidence requires that 
there be a rational or objective relationship between the SPS measure and the scientific evidence.  
7.368.   In addition, Articles 5.1 and 5.2 of the SPS  Agreement  constitute a specific application or a 
more specific elaboration of the basic obligation set out in Article  2.2, and a finding of a violation of 
Articles 5.1 and 5.2 may give rise to a rebuttable presumption of inconsistency with Article  2.2. 
Nevertheless, Me mbers have an obligation to comply with all the requirements of both Article  2 and 
Article  5 of the SPS  Agreement . 
7.4.4   Structure of the Panel's analysis of Mexico's claims regarding risk assessment 
obligations  
7.369.   This Panel will now explain how it will structure its analysis of Mexico's claims under 
Articles  5.1, 5.2, 5.3, and 2.2 of the SPS  Agreement , bearing in mind Costa  Rica's risk assessment, 
Mexico's claims, and the practical guidance developed by other panels and the Appellate Body.  
 
1038 Appellate Body Reports, EC – Hormones , para.  180; Australia – Salmon , para.  130; and India – 
Agricultural Products , para.  5.20. 
1039 Appellate Body Report,  India – Agricultural Products , para.  5.20 (citing Appellate Body Report, 
EC – Hormones , para.  180). See also Appellate Body Reports, US/Canada – Continued Suspension , para.  526; 
Australia – Apples , paras.  209 and 339; and Australia – Salmon , para.  130. 
1040 Appellate Body Report, India – Agricultural Products , para.  5.21. See also Appellate Body Report, 
Japan – Agricultural Products II , para.  82. 
1041 Appellate Body Report, India – Agricultural Products , para.  5.21. 
1042 Appellate Body Report, Australia – Apples , para.  340 (citing Appellate Body Report, Australia – 
Salmon , para.  138). See also Appellate Body Report, India – Agricultural Products , para.  5.23. 
1043 Appellate Body Report, India – Agricultural Products , para. 5.23 (citing Appellate Body Reports, 
Australia – Salmon , para.  138; and Australia – Apples , para.  340).  
1044 Appellate Body Report, India – Agricultural Products , para.  5.24. 
1045 Appellate Body Report, India – Agricultural Products , para.  5.24. 
1046 Appellat e Body Report, India – Agricultural Products , para.  5.29 and fn  305. WT/DS524/R  
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  7.4.4.1   Structure of the analysis under Article  5.1 of the SPS  Agreement  
7.370.   As detailed  above, in the course of its analysis under Article  5.1 of the SPS Agreement , the 
Panel must consider two issues : (i) whether there is a risk assessment, as appropriate to the 
circumstances, taking into account risk assessment techniques developed by the relevant 
international organizations ; and, (ii)  if there is a ri sk assessment, whether the SPS measure of the 
Member concerned is based on it.  
7.371.   On the first issue, i.e. whether there is a risk assessment , as appropriate to the 
circumstances, taking into account risk assessment techniques developed by the relevant 
intern ational organizations, as explained, the definition of "risk assessment" relevant to the measure 
at issue in this dispute is the first definition contained in paragraph 4 of Annex A to the 
SPS Agreement . This definition is as follows : "[t]he evaluation of the likelihood of entry, 
establishment or spread of a pest or disease within the territory of an importing Member according 
to the sanitary or phytosanitary measures which might be applied, and of the associated potential 
biological and economic consequenc es." The Panel will begin its analysis of the first issue that it 
must examine under Article  5.1 by addressing this definition.  
7.372.   To this end, this Panel will follow the Appellate Body's indication that a risk assessment within 
the meaning of Article  5.1, of  the type relevant to this dispute, must : "(1) identify  the diseases 
whose entry, establishment or spread a Member wants to prevent within its territory, as well as the 
potential biological and economic consequences associated with the entry, establishment  or spread 
of these diseases ; (2) evaluate the likelihood  of entry, establishment or spread of these diseases, 
as well as the associated potential biological and economic consequences ; and (3) evaluate the 
likelihood of entry, establishment or spread of th ese diseases according to the SPS measures which 
might be applied ."1047 
7.373.   In dealing with th is same first issue, the Panel will also analyse : (i) whether the risk 
assessment is appropriate to the circumstances ; and (ii)  whether risk assessment techniques 
devel oped by the relevant international organizations were taken into account.  
7.374.   Also with regard to this first issue of its analysis under Article  5.1, the Panel will examine 
whether, in the assessment of risk, Costa  Rica took into account available scientific e vidence and 
other factors as per Article  5.2 of the SPS  Agreement , as well as  the relevant economic factors listed 
in Article  5.3 of the SPS  Agreement . The Panel will elaborate on its decision to address Articles  5.2 
and 5.3 in the analysis of Article  5.1 in section 7.4.4.2 below.  
7.375.   In terms of how to approach the risk assessment in order to analyse whether it complies 
with the first issue in Article  5.1, including the definition in Annex A(4) and Articles 5.2 and 5.3, the 
Panel notes that there i s no specific path that it must take . For example, the Appellate Body in 
Australia – Apples  spoke of reviewing the risk assessment as a whole or through an analysis of 
individual steps and factors.  
7.376.   The Appellate Body in Australia – Apples  noted that "wheth er a panel reviews the risk 
assessment as a whole, or whether it bases its overall conclusions on the analyses of the individual 
steps and factors reviewed, will depend on the type and structure of risk assessment reviewed, and 
possibly on how a complainan t presents and develops its claims."1048 
7.377.   The Appellate Body also considered that a panel is not required to establish whether each 
fault is, in itself, "serious enough to undermine the entire risk assessment" .1049 The Appellate Body 
explained that "[a] compreh ensive analysis of all the steps and factors reviewed may be sufficient 
to determine whether various flaws are, when taken together, serious enough to render a risk 
assessment one that does not constitute a proper risk assessment."1050 
7.378.   This Panel will examin e Costa  Rica's risk assessment by analysing the different elements and 
factors of it (similar to the review of "steps and factors" in Australia – Apples ) and, on the basis of 
 
1047 Appellate Body Report, Australia – Salmon , para.  121. (emphasis original) See also Appellate Body 
Reports, Japan – Agricultural Products II , para.  112; and Japan – Apples , para.  196. 
1048 Appellate Body Report, Australia – Apples , para.  258. 
1049 Appellate Body Report, Australia – Apples , para.  258. 
1050 Appellate Body Report, Australia – Apples , para.  258. WT/DS524/R  
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  this analysis, will draw its overall conclusions . To this end, the Panel will fol low the structure of 
Costa  Rica's risk assessment, as contained in Reports ARP -002-2017 and ARP -006-2016. The reports 
themselves facilitate the analysis conducted in this way, by including in step 2 (pest risk assessment) 
the sections on pest categorizatio n and assessment of the probability of entry, including the 
probability of entry and establishment, the probability of spread, and potential economic 
consequences . The reports also contain the section on pest risk management.  
7.379.   Regarding the structure of the  analysis of the different elements and factors of the risk 
assessment, the Panel will begin by addressing the issue of the determination of freedom from  
ASBVd in Costa  Rica as part of the basis for Reports ARP -002-2017 and ARP -006-2016.  
7.380.   Subsequently, in l ine with the definition of "risk assessment" relevant to this dispute, 
contained in paragraph 4 of Annex A to the SPS  Agreement , the guidance of the Appellate Body and 
the structure of Reports ARP -002-2017 and ARP -006-2016, the Panel will analyse : whether the pest 
or disease was identified, along with the associated potential biological and economic consequences ; 
whether there was an evaluation of the likelihood  of entry, establishment or spread of a pest or 
disease, and of the associated potential biological and economic consequences ; and whether there 
was an evaluation of the likelihood  of entry, establishment or spread of a pest or disease within the 
territory  of an importing Member according to the sanitary or phytosanitary measures which might 
be applied.  
7.381.   As part of its review of the evaluation of the likelihood  of entry, establishment or spread, 
and of the associated potential biological and economic consequ ences, the Panel will first address 
the methodology in Manual NR -ARP-PO-01_M -01 that was used in preparing the risk assessment 
contained in Reports ARP -002-2017 and ARP -006-2016.  
7.382.   Also as part of its review of the evaluation of the likelihood  of entry, esta blishment or spread, 
and of the associated potential biological and economic consequences, the Panel will analyse 
diversion from intended use and spontaneous germination, which are fundamental, cross -cutting 
themes that permeate the evaluation of these thr ee probabilities.  
7.383.   Separately, the Panel will address the rest of Mexico's arguments regarding the evaluation 
of the three probabilities, i.e. the probability of entry, establishment and spread in Reports 
ARP-002-2017 and ARP -006-2016. These arguments are r elated to scientific evidence and 
uncertainty.  
7.384.   In addition, Mexico has identified some specific circumstances that it believes Costa  Rica 
should have considered in order for its risk assessment to be appropriate to the circumstances . To 
the extent that the  Panel has not already addressed these arguments in its analysis of the various 
factors and elements of the risk assessment, the Panel will address them subsequently.  
7.385.   Then, the Panel will also address Mexico's specific arguments regarding whether risk 
assessment techniques developed by the relevant international organizations were taken into 
account.  
7.386.   As noted, the Appellate Body has explained that, in reviewing a risk assessment under 
Article  5.1, a panel should "determine whether that risk assessment is su pported by coherent 
reasoning and respectable scientific evidence and is, in this sense, objectively justifiable" .1051 
Therefore, a panel must scrutinize both the scientific basis of the risk assessment and the reasoning 
of the risk assessor based upon such underlying science .1052 This Panel considers that, although they 
do not constitute steps that must be mechanically followed, these aspects are the axis of a panel's 
review of a risk assessment, which, as explained, should establish the scientific basis for a n SPS 
measure.  
 
1051 Appellate Body Report, Australia – Apples , para.  213 (citing Appellate Body Reports, 
US/Canada  – Continued Suspension , para.  590).  
1052 Appellate Body Report, Australia – Apples , para.  215. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para.  591. WT/DS524/R  
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  7.387.   As the Panel also noted, Article  5.2 requires that, in the assessment of risks, Members take 
into account, inter alia , available scientific evidence, and Article  2.2 requires SPS measures to be 
based on scientific principles and not to be ma intained without sufficient scientific evidence.  
7.388.   In Australia – Apples , the Appellate Body explained that whether a risk assessor has taken 
into account the available scientific evidence in accordance with Article  5.2 of the SPS  Agreement  
and whether its r isk assessment is a proper risk assessment within the meaning of Article  5.1 and 
Annex A(4) "must be determined by assessing the relationship between the conclusions of the risk 
assessor and the relevant available scientific evidence".1053 
7.389.   In light of the foregoing, in the course of its analysis of Costa  Rica's risk assessment, this 
Panel will scrutinize the scientific evidence and the reasoning of the risk assessor in order to 
determine whether there is a risk assessment in accordance with Article  5.1 that meets the definition 
in Annex A(4) and the requirements of Articles 5.2 and 5.3 of the SPS  Agreement . 
7.390.   Subsequently, on the second issue that it must examine under Article  5.1, the Panel will 
analyse whether Costa  Rica's SPS measure is based on the risk assessment . To this end, the Panel 
will analyse whether the results of the risk assessment sufficiently warrant the SPS measure at issue.  
7.391.   In summary, in its analysis under Ar ticle 5.1 of the SPS  Agreement , the Panel will first 
analyse whether there is a risk assessment appropriate to the circumstances that takes into account 
risk assessment techniques developed by the relevant international organizations . In order to do 
this, the Panel will examine whether Costa  Rica's risk assessment meets the definition in Annex  A(4) 
and the criteria in Article  5.1, and whether the factors in Articles 5.2 and 5.3 of the SPS  Agreement  
were taken into account . The Panel will carry out this revi ew by analysing the different elements and 
factors of the risk assessment, and, on the basis of this analysis, will draw its overall conclusions . 
Subsequently, the Panel will analyse whether Costa  Rica's SPS measure is based on this risk 
assessment.  
7.392.   In the  course of its analysis of Costa  Rica's risk assessment, this Panel will examine the 
scientific basis for the risk assessment and the reasoning of the risk assessor, which will enable it to 
determine whether the risk assessment is in line with the definiti on in Annex A(4) and the 
requirements of Articles 5.1, 5.2, and 5.3 of the SPS  Agreement . 
7.4.4.2   Treatment of Articles 5.2 and 5.3 of the SPS  Agreement  
7.393.   As explained, the Panel will consider, as part of  the first step of the analysis under Article  5.1, 
whether, in  the assessment of risk, Costa  Rica took into account available scientific evidence and 
other factors as per Article  5.2, as well as  the relevant economic factors listed in Article  5.3. The 
Panel will elaborate on this decision  below . 
7.394.   Mexico  states that th e various paragraphs of Article  5 set out distinct legal obligations with 
which Members must comply .1054 For Mexico, Article  5.1 of the SPS  Agreement  is to be understood 
as the main obligation, and Articles 5.2 and 5.3 as containing specific disciplines with  respect to this 
main obligation to base measures on a risk assessment appropriate to the circumstances.1055 
7.395.   Mexico asserts that Articles 5.2 and 5.3 of the SPS  Agreement  stipulate the specific elements 
of a risk assessment on which Members must base their measures for the purposes of Article  5.1, 
and establish the way in which a risk assessment has to be carried out, but not the substantive 
obligation to base a measure on  a risk assessment .1056 Mexico therefore considers that, in order to 
determine whether a Member is complying with its obligation to base its measures on a risk 
assessment "appropriate to the circumstances" under Article  5.1 of the SPS  Agreement , the question  
of whether it took into account the elements set forth in Articles 5.2 and 5.3 is also relevant.1057 
 
1053 Appellate Body Report, Australia – Apples, para.  208. 
1054 Mexico's response to Panel question No.  108, para.  153 (citing Appellate Body Report, 
Australia  – Apples , para.  341).  
1055 Mexico's response to Panel question No.  108, para.  153. 
1056 Mexico's response to Panel question No.  108, para.  155 (citing Panel  Report , Australia – Salmon , 
para. 8.57).  
1057 Mexico's response to Panel question No.  108, para.  156. WT/DS524/R  
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  7.396.   Costa  Rica, for its part, states that Articles 5.2 and 5.3 of the SPS  Agreement  inform the 
obligations under Article  5.1 of the SPS  Agreement  as a whole, an d requests the Panel, in addressing 
this matter, to consider Articles 5.1, 5.2, and 5.3 as a whole, and not in a segmented manner.1058 
7.397.   The European  Union 's opinion , as a third party , is that the various paragraphs of Article  5 
of the SPS  Agreement  set out di stinct legal obligations ; and that Article  5.1 requires that the risk 
assessment must sufficiently warrant – that is to say, reasonably support – the SPS measure at 
stake, while Articles 5.2 and 5.3 qualify the way in which a risk assessment has to be carr ied out, 
not the substantive obligation to base an SPS measure on a risk assessment .1059 The European  Union  
adds that Articles 5.2 and 5.3 shed light on the elements that are of relevance in the assessment of 
risks foreseen in Article  5.1, meaning that Artic le 5.1 is the main obligation, with Articles 5.2 and 
5.3 containing more specific disciplines concerning this main obligation.1060 
7.398.   Canada 's view , as a third party , is that, in assessing the risks under Article  5.1, a WTO 
Member is also required to consider t he factors set out in Articles 5.2 and 5.3 .1061 Canada mentions 
that Article  5.1 requires WTO Members to ensure that their SPS measures are based on a risk 
assessment, while Articles 5.2 and 5.3 apply to the assessment of these risks . Thus, they set out 
specific evidence, information and factors a WTO Member must take into account when it conducts 
a risk assessment .1062 For Canada, Article  5.2, along with Article  5.3, qualifies the way a risk 
assessment is conducted . However, WTO Members are still required, as a separate obligation, to 
base their SPS measures on a risk assessment.1063 
7.399.   El Salvador  considers , as a third party , that the obligations contained in Articles 5.2 and 
5.3 of the SPS  Agreement  form part of the general obligation contained in Art icle 5.1 of said 
Agreement, in that they develop the factors that Members must take into account when conducting 
a risk assessment .1064 Accordingly, El Salvador is of the view that the factors mentioned in Articles 
5.2 and 5.3 should be considered when condu cting a risk assessment, which should be carried out 
in a manner appropriate to the circumstances of each Member.1065 
7.400.   The Panel  notes that both provisions, namely Articles 5.2 and 5.3, relate to factors that 
Members are required to take into account in the a ssessment of risks, which is why previous panels 
have considered that a panel could assess arguments related to the factors in these two Articles in 
its analysis under Article  5.1 of the SPS  Agreement . 
7.401.   As described above, the panel in Japan – Apples  consid ered that "[t]hese provisions directly 
inform each other", in that Article  5.2 "sheds light on the elements that are of relevance in the 
assessment of risks" foreseen in Article  5.1.1066 That panel was of the opinion that Article  5.2 
"imparts meaning to the general obligation" contained in Article  5.1, and that, in the course of its 
analysis under Article  5.1, it might also consider elements contained in Article  5.2.1067 
7.402.   The panel in Australia – Apples  also noted that Article  5.2 is inextricably linked to Artic le 5.1, 
as the former provision enumerates a list of factors that Members must take into account when 
conducting their risk assessments1068, and that Article  5.2 would be considered when looking at 
 
1058 Costa Rica's response to Panel question No.  108, para.  3. 
1059 European  Union 's response to Panel question No.  6, para.  17 (citing Appellate Bod y Reports, 
Australia – Apples , para.  341; and US/Canada – Continued Suspension , para.  528; and Panel  Report , Australia 
– Salmon , para. 8.57).  
1060 European  Union 's response to Panel question No.  6, para. 18 (citing Panel  Report , US – Animals , 
para. 7.320).  
1061 Canada's response to Panel question No.  6, para. 15 (citing Panel  Report , Australia – Apples , 
para. 7.211).  
1062 Canada's opening statement at the first meeting of the Panel, para. 13.  
1063 Canada's opening statement at the first meeting of the Panel, para. 14. 
1064 El Salvador's response to Panel question No.  6. 
1065 El Salvador's response to Panel question No.  6. 
1066 Panel  Report , Japan – Apples , para. 8.230.  
1067 Panel  Report , Japan – Apples , para. 8.232. See also Panel  Report , US – Poultry (China) , para. 7.172 
(citing Panel  Report , Japan – Apples , para. 8.232).  
1068 Panel  Report , Australia – Apples , para. 7.211 (citing Appellate Body Reports, US/Canada – 
Continued Suspension , para. 527).  WT/DS524/R  
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  Article  5.1.1069 In the same vein, the panel in US – Poultry (China)  considered that Article  5.2 of the 
SPS Agreement  "instructs WTO Members on how to conduct a risk assessment".1070 
7.403.   Following the reasoning of the panel in Japan – Apples , the panel in US – Poultry (China)  
noted that, in the course of its analysis under Article  5.1, it might also consider elements contained 
in Article  5.2.1071 Similarly, the panel in US – Animals  explained that it agreed that claims under 
Article  5.2 should be examined within the context of the a nalysis of claims under Article  5.1.1072 
7.404.   The panel in US – Animals  further considered that, when determining whether a risk 
assessment is "appropriate to the circumstances" in accordance with Article  5.1 of the 
SPS Agreement , the question of whether the elem ents set forth in Articles 5.2 and 5.3 were taken 
into account is relevant.1073 
7.405.   This Panel agrees with the approach followed by other panels . Accordingly, in the view of 
this Panel, to assess Mexico's claims under Article  5.1, the Panel should also examine M exico's claims 
as to whether, in the assessment of risk, the factors set out in Articles 5.2 and 5.3 of the 
SPS Agreement  were taken into account . In other words, the Panel will consider, in its analysis of 
Costa  Rica's risk assessment under Article  5.1 of  the SPS  Agreement , whether, in the assessment 
of risk, Costa  Rica took into account available scientific evidence and other factors as per Article  5.2 
and the relevant economic factors listed in Article  5.3. 
7.406.   It should be added that Mexico has included in its arguments a section containing specific 
arguments as to whether, in the assessment of risk, Costa  Rica took into account available scientific 
evidence and other factors as per Article  5.2, and another section containing specific arguments 
concerning th e relevant economic factors listed in Article  5.3. To the extent that the Panel has not 
already addressed these arguments in its analysis of the various elements of the risk assessment, 
the Panel will address them subsequently.  
7.407.   The Panel also notes that Me xico has presented arguments as to whether, in determining its 
measures , Costa  Rica took into account the relevant economic factors in Article  5.3. The Panel will 
address these arguments after examining Mexico's claims regarding the risk assessment.  
7.4.4.3   Treatm ent of Article  2.2 of the SPS  Agreement  
7.408.   Subsequent to, and in light of, the analysis of Mexico's claims under Articles 5.1, 5.2, and 
5.3 of the SPS  Agreement , the Panel will address Mexico's claims under Article  2.2 of the 
SPS Agreement . 
7.409.   As explained above, Article  5.1 may be viewed as "a specific application of the basic 
obligations" contained in Article  2.2.1074 In addition, as clarified  by the Appellate Body in India – 
Agricultural Products , an SPS measure found to be inconsistent with Artic les 5.1 and 5.2 of the 
SPS Agreement  can be presumed, more generally, to be inconsistent with Article  2.2.1075 
7.410.   However, as also explained above, although the relationship between these provisions gives 
rise to a presumption that a finding of a violation of A rticles 5.1 and 5.2 will result in a finding of a 
violation of Article  2.2, such presumption cannot be irrebuttable .1076 Lastly, it should be noted that, 
even though the presumption of inconsistency is rebuttable, the Appellate Body in India – 
Agricultural P roducts  observed that establishing that there exists a rational or objective relationship 
between the SPS measure and the scientific evidence for the purposes of Article  2.2 would, in most 
 
1069 Panel  Report , Australia – Apples , para. 7.211.  
1070 Panel  Report , US – Poultry (Chin a), para. 7.171.  
1071 Panel  Report , US – Poultry (China) , para. 7.172 (citing Panel  Report , Japan – Apples , para. 8.232).  
1072 Panel  Report , US – Animals , para. 7.320 (citing Panel  Report , Australia – Apples , para. 7.211, in 
turn citing Panel  Report , Japan – Apples , para. 8.230).  
1073 Panel  Report , US – Animals , para. 7.323.  
1074 Appellate Body Report, EC – Hormones , para. 180.  
1075 Appellate Body Report, India – Agricultural Products , para. 5.23 (citing Appellate Body Reports, 
Australia – Salmon , para. 138; and Austra lia – Apples , para. 340).  
1076 Appellate Body Report, India – Agricultural Products , paras.  5.23 and 5.24.  WT/DS524/R  
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  cases, be difficult without a Member demonstrating that such a meas ure is based on an assessment 
of the risks, as appropriate to the circumstances.1077 
7.4.5   Analysis of the risk assessment contained in Reports ARP -002-2017 and 
ARP-006-2016  
7.4.5.1   The determination of absence of ASBVd in Costa  Rica in ARP -002-2017 and 
ARP-006-2016  
7.4.5.1.1   Mexic o's argument with respect to the determination of absence of ASBVd in 
Costa  Rica and Costa  Rica's questioning of the Panel's terms of reference with respect to 
that determination  
7.411.   As concluded in paragraph 7.3 10 above, the Panel does not consider that Mexic o has 
demonstrated, as a matter of fact, that ASBVd is present in Costa  Rica. However, this is not the only 
factual issue to be resolved with respect to the phytosanitary status of ASBVd in Costa  Rica. The 
Panel notes that, from the outset of the proceedin gs, Mexico  has argued not only that it can be 
concluded that ASBVd is present in the territory of Costa  Rica, but also that the declaration of 
freedom from  ASBVd lacks scientific basis and was not based on the relevant ISPMs .1078 
7.412.   Mexico states that it is undeniable that the determination of Costa  Rica's phytosanitary status 
is a basic and essential issue that forms an integral part of the risk assessment, of t he determination 
of its ALOP, of the choice of the relevant risk management measures and, therefore, of this 
dispute.1079 
7.413.   Mexico submits that it was incumbent upon Costa  Rica to follow the international standards 
applicable to the determination of the phytosanitary status of ASBVd in its territory, especially when 
it intended to use that status as the starting point for its PRAs and the basis for its measures .1080 
Mexico adds th at, in matters of plant and animal health, it is the importing countries that bear the 
initial burden of determining pest status in an area of their territory, which is a key part of their 
PRAs and the resulting determination of the measures to be implemen ted to mitigate the likely 
risks.1081 Mexico states that the onus is not on it to demonstrate the presence of ASBVd in Costa  Rica, 
given that, under the obligation to base phytosanitary measures on a risk assessment, Costa  Rica 
should have demonstrated that ASBVd was absent in its territory.1082 
7.414.   Mexico points out that it is not challenging the determination of the status of ASBVd in 
Costa  Rican territory as an individual measure subject to this dispute, but rather the PRAs that are 
based on that determination w hich, according to Mexico, is a key element that led to the imposition 
of the measures applied to imports of fresh avocados for consumption from Mexico.1083 
7.415.   Mexico further contends that, contrary to the recommendations of ISPM Nos. 4 and 6, 
Costa  Rica failed  to follow the requirements and procedures to claim that its territory is free of ASBVd 
as part of its pest risk assessment . Its SPS measures therefore lack the scientific basis to claim that 
ASBVd is absent in Costa  Rica.1084 For Mexico, the reasoning behin d the determination of 
phytosanitary status should be in accordance with ISPM Nos. 6 and 8.1085 
7.416.   Costa  Rica submits that Mexico did not include in its panel request the declaration of the 
absence of ASBVd in Costa  Rica's territory as a measure at issue . Consequently, the determination 
of the pest's absence is not part of the matter referred to the DSB and is, therefore, outside the 
 
1077 Appellate Body Report, India – Agricultural Products , para. 5.29 and fn  305. 
1078 Mexico's first written submission, paras.  281–282. 
1079 Mexico's second wr itten submission, para.10; opening statement at the Panel's second meeting, 
para. 33; closing statement at the Panel's second meeting, para.4.  
1080 Mexico's second written submission, para. 12.  
1081 Mexico's second written submission, para. 12.  
1082 Mexico's openin g statement at the Panel's second meeting, para. 35.  
1083 Mexico's second written submission, para. 14.  
1084 Mexico's first written submission, para. 412.  
1085 Mexico's opening statement at the Panel's second meeting, para. 34.  WT/DS524/R  
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  Panel's terms of reference .1086 As a result, Costa  Rica does not consider that an examination 
obligation arises within the terms of reference of this Panel as to whether or not the determination 
of absence of ASBVd was based on ISPM Nos. 8 and 6.1087 
7.417.   For Costa  Rica, it is difficult to ascertain whether Mexico is  challenging the determination of 
absence of ASBVd in Costa  Rica as a measure in itself, as part of the risk assessment, or whether it 
is a premise or factual element to support its case with respect to harmonization, discrimination and 
regionalization . In Costa  Rica's view, Mexico has not identified the provisions of the covered 
agreements to which the determination of absence of ASBVd in Costa  Rica would relate or with which 
it would be inconsistent.1088 
7.418.   Costa  Rica adds that Mexico's late submission of thes e claims has prevented the third parties 
from expressing their views and is contrary to the Panel's Working Procedures.1089 
7.419.   Costa  Rica therefore requests the Panel to declare inadmissible what Costa  Rica considers to 
be Mexico's procedural claim that the Pan el should rule on the determination of absence of ASBVd, 
as well as the claims related thereto.1090 
7.420.   Furthermore, in Costa  Rica's view, the declaration of a territory 's freedom  from a pest is a 
matter of national sovereignty, as the experts have recognized, a nd the NPPO of Costa  Rica is the 
competent organization to determine the absence of quarantine pests in its territory and is 
responsible for surveillance efforts.1091 
7.421.   The Panel  considers that, during the initial stages of the proceedings, Mexico presented an d 
explained  its arguments regarding the lack of scientific basis for Costa  Rica's determination of 
absence of ASBVd, and provided all the documents available to it on Costa  Rica's surveillance 
activities for detecting ASBVd that were carried out  to determi ne Costa  Rica's phytosanitary status 
with respect to ASBVd.1092 
7.422.   The Panel also notes that Costa  Rica states that its PRAs are based on the fact that ASBVd 
is absent from all of its territory, and indicates that this is the main reason why Costa  Rica has 
adopted phytosanitary requirements to enable it to maintain this status.1093 
7.423.   Moreover, in its first written submission, in its description of the facts, Costa  Rica states that 
ASBVd is absent in Costa  Rica1094; that it stepped up  surveillance for ASBVd, in accordance with 
ISPM No. 6, and decided to conduct sampling surveys nationwide to determine its phytosanitary 
status with respect to ASBVd, in accordance with ISPM No. 8.1095 In its second written submission, 
Costa  Rica notes that the many sampling surveys and diagnostic tests provided by Costa  Rica in 
these proceedings demonstrate the absence of ASBVd.1096 
7.424.   It is clear to the Panel that Costa  Rica's determination of absence of ASBVd is an important 
factual matter in the dispute . As will be discussed below, this is part of the basis of Reports 
ARP-002-2017 and ARP -006-2016, is part of the justification for the adoption of the phytosanitary 
requirements being challenged, and is a disputed factual matter to which both parties have ref erred 
 
1086 Costa Rica's response to Panel question No.  80, para. 1; response to Panel question No.  81, para. 1; 
letter from Costa Rica to the Panel, dated 6  October  2020, para. 7; and opening statement at the Panel's 
second meeting, para.4.1.  
1087 Costa Rica's response to Panel question No.  80, para.  1; response to Panel question No.  81, para. 1.  
1088 Costa Rica, letter from Costa Rica to the Panel, dated 6  October  2020, paras.  9-10; opening 
statement at the Panel's second meeting, para.4.2.  
1089 Costa Rica, letter from Costa Rica to the Panel, dated 6  October 2020, para. 12; opening statement 
at the Panel's second meeting, para.4.3.  
1090 Costa Rica, letter from Costa Rica to the Panel, dated 6  October  2020, para. 14; opening statement 
at the Panel's second meeting, para.4.3.  
1091 Costa Rica's opening statement at  the Panel's second meeting, para. 4.6.  
1092 See, for example, Mexico's first written submission, para. 442 (citing Sampling survey 2014, 
(Exhibit  MEX-64); Sampling survey 2015 -2016, (Exhibit MEX -65); and Memorandum CIBCM -PCDV -021-2015 
(2015), (Exhibit MEX -134)). 
1093 Costa Rica's first written submission, para. 5.98.  
1094 Costa Rica's first written submission, para. 3.18.  
1095 Costa Rica's first written submission, para. 3.20.  
1096 Costa Rica's second written submission, paras.  3.30-3.31. WT/DS524/R  
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  throughout the dispute . The Panel's task includes making an objective assessment of the facts, 
including an analysis of the evidence that the parties use in support of their arguments, which in 
this case includes an assessment of the determination of  freedom from  ASBVd in Costa  Rica on the 
basis of documents from its ASBVd surveillance system.1097 
7.425.   The Panel recognizes that the determination of the presence or absence of a pest in the 
territory of a WTO Member is the responsibility of that Member, which is therefore also responsible 
for the relevant surveillance efforts in order to make such a determination . However, the fact that 
the determination of the phytosanitary status of a pest is the responsibility of that Member does not 
mean that such a determi nation cannot be assessed by a panel in the WTO dispute settlement 
system . A Member's phytosanitary status with respect to a pest can play a decisive role in the 
process of developing and imposing phytosanitary measures, and panels may be obliged to assess  
the determination of that phytosanitary status in order to carry out their task pursuant to Article  11 
of the DSU.  
7.426.   The Panel recalls that, while its task is not to engage in a de novo  review, a policy of total 
deference to the findings of the national aut horities could not ensure an "objective assessment" as 
provided for in Article  11 of the DSU .1098 In the circumstances of the case at hand, this Panel could 
not carry out its task under Article  11 of the DSU if it gave full deference to Costa  Rica relating t o 
the determination of its phytosanitary status in respect of ASBVd.  
7.427.   The Panel therefore concludes that the analysis of the determination of absence of ASBVd in 
Costa  Rica as a fact ual question  falls within its terms of reference.  
7.4.5.1.2   Reports ARP -002-2017 and ARP-006-2016 and the determination of absence of 
ASBVd in the territory of Costa  Rica 
7.428.   Mexico  submits that Costa  Rica's risk assessment emanates from a highly questionable 
basic presupposition, namely the determination of absence of ASBVd in all its territory, which is why 
it seeks to justify  that there is a high level of risk arising from the alleged irreparable consequ ences 
of the trade in avocados imported from Mexico for consumption .1099 For Mexico, a risk assessment 
underpinned by a fundamental assertion about the alleged absence of ASBVd, which lacks the 
technical and scientific rigour required under the ISPMs, cannot  be considered as being consistent 
with the SPS  Agreement .1100 
7.429.   Mexico points out that its complaint clearly falls under Article  5.1 of the SPS  Agreement , and 
that, given that the risk assessment involves a technical -scientific procedure, the premises on whic h 
it is based, including the determination of phytosanitary status, must be supported specifically by 
evidence of a technical and scientific nature.1101 
7.430.   Mexico states that, in order to evaluate  the likelihood  of entry, Costa  Rica should have 
demonstrated in a reasoned and systematic manner that ASBVd and its disease were absent in its 
territory .1102 Mexico considers that the declaration of freedom from  ASBVd has no scientific basis, 
was not based on the relevant IS PMs, and it is possible to infer from the avail able information that 
ASBVd is present in the territory of Costa  Rica.1103 
7.431.   Mexico also submits that Costa  Rica failed to base the findings of its PRA on, nor did it take 
into account, valid scientific processes and methods that would demonstrate the alleged absence of 
 
1097 As mentioned in section 1.3.3.4 above, the Panel considered that it was necessary to request the 
parties to provide any additional information and supporting documentation on the Costa Rican surveillance 
system in respect of ASBVd, in order to be able to m ake an objective assessment of the facts of the dispute 
relating to the determination of freedom from  ASBVd in Costa Rica. The Panel therefore sent its request for 
additional information and supporting documentation to the parties on 3  August  2020.  
1098 Appel late Body Report, EC – Hormones , para. 117 (citing Panel  Report , US – Underwear , 
para. 7.10).  
1099 Mexico's opening statement at the Panel's first meeting, para. 14; second written submission, 
para. 11; opening statement at the Panel's second meeting, para. 33.  
1100 Mexico's opening statement at the Panel's first meeting, para. 25.  
1101 Mexico's opening statement at the Panel's second meeting, para. 34.  
1102 Mexico's first written submission, para. 280.  
1103 Mexico's first written submission, para. 281.  WT/DS524/R  
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  ASBVd in its territory .1104 In Mexico's view, Costa  Rica failed to consider relevant inspection, 
sampling and testing methods in its risk assessment, because the sampling surveys conducted by 
Costa  Rica to determine the absence of ASBVd lack the p roper application of scientific 
methodology.1105 
7.432.   Costa  Rica, on the other hand, notes that Mexico has failed to demonstrate that the 
presence or absence of a pest in the PRA area is a factor determining the probability of entry of a 
pest into a territory1106, but that, in any event, Costa  Rica's PRAs are based on the fact that ASBVd 
is absent in Costa  Rica, and that this is the main reason why Costa  Rica has adopted phytosanitary 
requirements to enable it to maintain this status.1107 
7.433.   The Panel  notes that, durin g the Panel's meeting with the parties and experts, the experts' 
opinion was sought as to whether the determination of the phytosanitary status of a pest is part of 
the risk assessment . The expert Robert Griffin is of the view that  the phytosanitary status  is part of 
the risk analysis, that the phytosanitary status depends on the pest, and that the status of the pest 
in the area protected by the PRA is the key to initiating the PRA .1108 The expert Pablo Cortese notes 
that the determination of phytosanitary st atus is the subject of ISPM Nos. 6 and 8, but that, clearly, 
the status of a pest in the area needs to be known in order to initiate the PRA.1109 
7.434.   The Panel notes that Report ARP -002-2017 states, at the initiation stage, in the section on 
"[j]ustifications fo r further study of the pest or for non -inclusion", that recent sampling surveys 
confirmed that ASBVd is absent in Costa  Rica, and that those sampling surveys were conducted by 
the Regional Operations Department in the districts of Grecia, Heredia, Naranjo,  Cartago, 
Desamparados, Dota, El Guarco, León Cortés, Tarrazú, Abangares, Tilarán, Liberia, Esparza, Orotina 
and Coto Brus .1110 This was also noted in Report ARP -006-2016 in an introductory section on 
ASBVd .1111 The Reports also note that, despite the fact tha t Hadidi et al.  (2003) and CABI (2017) 
state that ASBVd is present in Costa  Rica, this is incorrect, as it is based on the article by Vargas et 
al. (1997), which only mentions the presence of ASBVd in Peru, not in Costa  Rica.1112 
7.435.   Report ARP -002-2017 also states, in its conclusion on the initiation stage, that the PRA was 
initiated pursuant to the revision of the national phytosanitary policy, in order to assess the risks 
associated with pests present in avocados in Mexico and absent in Costa  Rica, including ASBVd .1113 
Report ARP -006-2016 concludes that ASBVd was identified at the initiation stage as a pest to be 
analysed.1114 
7.436.   In addition, Reports ARP -002-2017 and ARP -006-2016 state, in their sections on pest risk 
management, that, based on the informa tion arising from the risk analysis, the implementation of 
specific phytosanitary measures is recommended ; that Costa  Rica is free of the pest ASBVd, and 
should therefore adopt the necessary phytosanitary measures to prevent its entry into Costa  Rican 
territory; and that, in this regard, the measures adopted should achieve the "maximum level of 
phytosanitary protection".1115 
7.437.   The Panel recalls that Costa  Rica contends that its PRAs are based on the fact that ASBVd is 
absent in all its territory, and notes that  this is the main reason why Costa  Rica has adopted 
phytosanitary requirements to enable it to maintain this status.1116 
 
1104 Mexico's first written submission, para. 453.  
1105 Mexico's second written submission, paras.  192 and 198.  
1106 Costa Rica's first written submission, para. 5.97; second written submission, fn  64 to para. 3.30.  
1107 Costa Rica's first written submission, para. 5.98.  
1108 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, pp 4 -5. 
1109 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, p. 5.  
1110 ARP-002-2017, (Exhibit MEX -84), p. 13.  
1111 ARP-006-2016, (Exhibit MEX -85), p. 9.  
1112 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Hadidi et al. (2003), (Exhibit CRI -121); and Vargas 
et al. (1991), (Exhibit CRI -137)); ARP -006-2016, (Exhibit MEX -85), p. 9 (citing Hadidi et al. (2003), (Exhibit 
CRI-121); and Vargas et al. (1991), (Exhibit CRI -137)). 
1113 ARP-002-2017, (Exhibit MEX -84), p. 15.  
1114 ARP-006-2016, (Exhibit MEX -85), p. 14.  
1115 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), p. 23.  
1116 Costa Rica's first written submission, para. 5.98.  WT/DS524/R  
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  7.438.   In this Panel's view, and as can be seen from the text of Reports ARP -002-2017 and 
ARP-006-2016, the determination of absence of ASBVd in  Costa  Rica was a factual consideration for 
Costa  Rica in carrying out its risk assessment . More specifically, it appears from Reports 
ARP-002-2017 and ARP -006-2016 that the determination of absence of ASBVd in Costa  Rica was a 
consideration both at the in itiation stage of the risk assessment and when making the risk 
management recommendations.  
7.439.   Regarding the determination of absence of ASBVd in Costa  Rica as part of the initiation stage 
of the risk assessment, the Panel considers it important to mention ISP M No. 11, which, having been 
developed within the framework of the IPPC, is a risk assessment technique developed by a relevant  
international organization within the meaning of the SPS  Agreement . ISPM No. 11 states that the 
pest risk assessment process can be divided into three interrelated steps : (i) pest categorization ; 
(ii) assessment of the probability of introduction and spread ; and (iii)  assessment of potential 
economic consequences.1117 
7.440.   Regarding the categorization of pests, ISPM No.  11 states that, at the outset, it may not be 
clear which pests of interest require a PRA, and that the categorization process will examine whether 
the criteria in the definition for a quarantine pest are satisfied .1118 According to ISPM No.  11, one of 
the primary e lements of categorization of a pest as a quarantine pest is its presence or absence in 
the PRA area .1119 ISPM No. 11 states that, to be categorized as a quarantine pest, the pest must be 
absent from all or a defined part of the PRA area .1120 In fact, the defin ition of a quarantine pest, 
according to ISPM No. 5, "Glossary of phytosanitary terms", is a "pest of potential economic 
importance to the area endangered thereby and not yet present there, or present but not widely 
distributed and being officially control led".1121 
7.441.   Manual NR -ARP-PO-01_M -01 defines a quarantine pest, in accordance with ISPM No. 5, as 
"[a] pest of potential economic importance to the area endangered thereby and not yet present 
there, or present but not widely spread and being officially control led".1122 
7.442.   In section A) on pest risk analysis for quarantine pests, at the initiation stage, the manual 
states that a list of pests associated with the crop is drawn up, including information to determine 
which quarantine pests will be subject to stage 2 (pe st risk assessment), and , among the elements 
of information, is included an  indicat ion of  whether the pest is regulated in Costa  Rica and whether 
or not it is present in Costa  Rica (yes or no) .1123 The manual includes a point on observations or 
comments in t he event that the pest is not present in the country, giving reasons  why it is or is not 
to be included in the subsequent assessment, and indicating key references as a technical 
justification.1124 
7.443.   The manual notes that, if potential quarantine pests are not  identified at that stage, the PRA 
is stopped at this point .1125 The manual states that pests that are considered to be of potential 
economic importance and that meet the geographical and regulatory criteria of ISPM No. 11 should 
be included in the list for consideration during stage 2 .1126 Pursuant to ISPM No. 11, the 
categorization of the pest as a quarantine pest includes the following primary elements : (i) identity 
of the pest ; (ii) presence or absence in the PRA area ; (iii) regulatory status ; (iv) potential for 
establishment and spread in the PRA area ; (v) potential for economic consequences (including 
environmental consequences) in the PRA area.1127 
7.444.   The Panel notes that it is not clear which of the elements listed in ISPM No. 11 would be the 
"geographica l criterion" referred to by Costa  Rica, but stresses that Manual NNR -ARP-PO-01_M -01 
 
1117 ISPM No.  11, (Exhibit MEX -77), p. 10.  
1118 ISPM No.  11, (Exhibit MEX -77), p. 10.  
1119 ISPM No.  11, (Exhibit MEX -77), p. 10.  
1120 ISPM No.  11, (Exhibit MEX -77), p. 11.  
1121 ISPM No.  5, (Exhibit MEX -74), p. 20.  
1122 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 3.  
1123 Manu al NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 5.  
1124 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
1125 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
1126 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 6.  
1127 ISPM No.  11, (Exhibit MEX -77), p. 10.  WT/DS524/R  
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  includes the pest's status in the area in the definition of "quarantine pest" and among the information 
for determining which quarantine pests will be subject to stage 2 (p est risk assessment).  
7.445.   It is clear from all the foregoing that, in preparing the risk assessment, Costa  Rica considered  
the determination of absence of ASBVd in Costa  Rica for the initial decision on whether ASBVd could 
be categorized as a quarantine pest, and whether said pest would therefore be subject to the 
subsequent stages of the risk assessment process.  
7.446.   Moreover, as Costa  Rica itself accepts, Reports ARP -002-2017 and ARP -006-2016 also took 
into consideration the determination of absence of ASBVd in Costa Rica for the recommendation of 
phytosanitary measures to be implemented.  
7.447.   In this regard, in this Panel's view, the phytosanitary status of Costa  Rica with respect to 
ASBVd, which Costa  Rica determined as being absent in its territory, is a basic premise of 
Costa  Rica's risk assessment . This phytosanitary status was determined through what is known as 
its surveillance system . In Reports ARP -002-2017 and ARP -006-2016, Costa  Rica refers to the 
literature review (Hadidi et al. (2003), CABI (2017) and Vargas et al. (1997)), which comes under 
general surveillance, and to sampling surveys, which come under specific surveillance . Although in 
Reports ARP-002-2017 and ARP -006-2016, of 10  July 2017,  Costa  Rica does not provide details o f 
the sampling surveys or other gene ral surveillance activities, it is clear that Costa  Rica considered  
such activities as the basis for its determination of absence of ASBVd in its territory, a determination 
that formed part of the basis for its risk assessment.  
7.448.   The Panel recalls that, in c ases where a panel has to examine a Member's risk assessment, 
its review power is to determine whether the risk assessment "is supported by coherent reasoning 
and respectable scientific evidence and is, in this sense, objectively justifiable" .1128 When exami ning 
a risk assessment, a panel must scrutinize both the underlying scientific basis of the risk assessment 
and the reasoning of the risk assessor based upon such underlying science .1129 With respect to the 
first aspect, the panel's role is "limited to revie wing whether the scientific basis constitutes 
'legitimate science according to the standards of the relevant scientific community'" .1130 With respect 
to the second aspect, the panel's role involves "an assessment of whether the reasoning of the risk 
assessor  is objective and coherent, that is, whether the conclusions find sufficient support in the 
scientific evidence relied upon".1131 
7.449.   In the Panel's view, in order to be able to carry out this task, the Panel must analyse the 
determination of absence of ASBVd in  Costa  Rica as part of the basis for the risk assessment in 
Reports ARP -002-2017 and ARP -006-2016. The Panel must, therefore, analyse Costa  Rica's ASBVd 
surveillance system as the basis for that determination, even though Costa  Rica has failed to  explain 
that basis in detail in its Reports ARP -002-2017 and ARP -006-2016.  
7.450.   It should be mentioned that, although actions within the surveillance system are not 
necessarily carried out by the risk  analyst in the strict sense of the term, the interpretation of the 
risk assessment under the SPS  Agreement  does not imply a narrow understanding of what 
constitutes a risk assessment . Regarding risk assessment and risk management, the Appellate Body, 
in EC – Hormones  noted that Article  5 of and Annex A to the SPS  Agreement  speak only of "risk 
assessment", and that the term "risk management" is not to be found in either Article  5 or any other 
provision of the SPS  Agreement . Thus, the panel's distinction in that case, "which it apparently 
employ[ed] to achieve or support what appears to be a restrictive notion of risk assessment, has no 
textual basis" .1132 In addition, the definition of the first type of risk assessment in paragraph 4 of 
Annex A to the SPS  Agreement  includes considerations of what could be observed as risk 
management, defining it as "evaluation of the likelihood of entry, establishment or spread of a pest 
or disease within the territory of an importing Member according to the sanitary or phytosa nitary 
measures which might be applied , and of the associated potential biological and economic 
 
1128 Appellate Body Reports, US/Canada – Continued Suspension , para. 590.  
1129 Appellate Body Report, Australia – Apples , para. 215. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para. 591.  
1130 Appellate Body Report, Australia – Apples , para. 21 5. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para. 591.  
1131 Appellate Body Report, Australia – Apples , para. 215. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para. 591.  
1132 Appellate Body Report, EC – Hormones , para. 181. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para. 541.  WT/DS524/R  
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  consequences" . Similarly, this Panel considers that risk assessment may also include considerations 
that form part of the initiation stage of the risk assessmen t, in particular, in this case, the 
determination of absence of ASBVd in Costa  Rica, reached, as can be seen in its own Reports 
ARP-002-2017 and ARP -006-2016, by means of its ASBVd surveillance system.  
7.451.   Furthermore, pursuant to Article  5.1 of the SPS  Agreem ent, risk assessment must be 
"appropriate to the circumstances", which, in the view of this Panel, could include the importing 
Member's phytosanitary status with respect to the pest in question . The parties appear to agree that 
the presence or absence of t he pest is a relevant consideration in determining whether the risk 
assessment is "appropriate to the circumstances".1133 
7.452.   In light of the foregoing, the Panel concludes that it must analyse the determination of 
absence of ASBVd in Costa  Rica as part of the b asis for Reports ARP -002-2017 and ARP -006-2016, 
and it will address Costa  Rica's surveillance system in respect of ASBVd, as this underpinned its 
determination that ASBVd is absent.  
7.453.   In that regard, the Panel emphasizes that, in accordance with its task under Article  5.1, it 
will not assess whether the determination of absence of ASBVd in Costa  Rica is correct, but whether, 
on the basis of the evidence on the record, it can be found that the determination of absence of 
ASBVd in Costa  Rica should be consid ered to be legitimately scientific in accordance with the 
standards of the scientific community.  
7.4.5.1.2.1   The manner in which the Panel will analyse Mexico's arguments regarding the 
determination of absence of ASBVd in Costa  Rica in the Reports ARP -002-2017 and 
ARP-006-2016  
7.454.   Mexico has referred to the determination of absence of ASBVd in Costa  Rica in different 
sections of its submissions, statements, responses and comments, including in its factual sections, 
in its claims related to harmonization under Articles 3.1 and 3.3 of the SPS  Agreement , and in its 
claims concerning risk assessment under Articles 5.1, 5.2, 5.3 and 2.2 of the SPS  Agreement . 
7.455.   In its first written submission, Mexico advances some of its arguments relating to the 
determination of absence of ASBVd i n Costa  Rica in the context of its claims under Article  3 of the 
SPS Agreement , in the section "Aspects of ARP-006-2016 and ARP-002-2017 that are contrary to 
the principles of ISPM Nos. 2, 4, 6, 8, 11 and 32" .1134 There, Mexico includes the point on Costa  Rica's 
declaration that ASBVd is absent in its territory, and concludes that this declaration of freedom  from 
ASBVd and its disease is not based on ISPM Nos. 6 and 8.1135 
7.456.   In the context of its claims under Articles 5.1, 5.2, 5.3 and 2.2 of the SPS  Agreement , in its 
first written submission, Mexico makes reference to its arguments advanced under Articles 3.1 
and 3.3.1136 In its second written submission, Mexico includes arguments relating to the 
determination of absence of ASBVd in a section entitled "Facts", under the statement that 
"Costa  Rica's risk assessment is based on the questionable premise of the alleged absence of ASBVd 
in its territory", as well as in its section on legal arguments under Articles 5.1, 5.2, 5.3 and 2.2 .1137 
Mexico has also mai ntained throughout its submissions that Costa  Rica's risk assessment is based 
on a highly questionable basic presupposition, namely the determination of absence of ASBVd in all 
its territory.1138 
7.457.   The Panel will address the factual arguments on the determinat ion of absence of ASBVd 
made by Mexico throughout its submissions, and in particular the evidence presented in this regard, 
 
1133 In the context of the phrase "appropriate to the circumstances", Mexico asserts that Costa Rica 
failed to consider the circumstances that directly affected the out come of the SFE's risk assessment, such as 
the presence of ASBVd and its disease in Costa Rica. (Mexico's first written submission, para. 386).  
For its part , Costa Rica asserts that it conducted a specific risk assessment for the particular case of 
ASBVd a nd the pathway of fresh avocado fruit for consumption, noting in particular specific national situations, 
such as the absence of the viroid in its territory. (Costa Rica's second written submission, para. 3.24).  
1134 See, for example, Mexico's first written s ubmission, paras.  195-204. 
1135 Mexico's first written submission, para. 204.  
1136 See, for example, Mexico's first written submission, paras.  388 and 412.  
1137 See, for example, Mexico's second written submission, paras.  22-41, 178 -179 and 192. 
1138 Mexico's opening statement at the Panel's first meeting, para. 14; second written submission, 
para. 11; opening statement at the Panel's second meeting, para. 33.  WT/DS524/R  
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  when  analysing the determination of absence of ASBVd in Costa  Rica as part of the basis for Reports 
ARP-002-2017 and ARP -006-2016, w ithin Mexico's claims relating to the risk assessment under 
Articles 5.1, 5.2, 5.3, and 2.2 of the SPS  Agreement . 
7.458.   The Panel notes that Mexico's arguments relating to the determination of absence of ASBVd 
in Costa  Rica are largely focused on the content of ISPM Nos. 4, 6, and 8 . The Panel reiterates, 
however, that its examination under Article  5.1 of the SPS  Agreement  consists in  assess ing whether 
the determination of absence of ASBVd, as part of the scientific basis for Reports ARP -002-2017 and 
ARP-006-2016, must be considered to be legitimately scientific according to the standards of the 
scientific community concerned.1139 
7.459.   The Panel notes that ISPM No. 11, which directly relates to carrying out a PRA1140, and is a 
risk assessment technique developed by a relevant international organization, having been devised 
within the framework of the IPPC, refers to ISPM No. 8, which in turn refers to ISPM No. 6. Hence, 
ISPM Nos. 6 and 8 may be considered as illustrative tools for the inputs of a risk assessment related 
to the determination of a pest status in a territory . The Panel will therefore refer to the ISPMs as 
tools that are illustrative for determining what would be considered to be legitimately scientific in a 
risk assessment according to the standards of the scie ntific community.  
7.460.   However, the Panel will not carry out its analysis under Article  5.1 of the SPS  Agreement  on 
the basis of ISPM Nos. 6 and 8, in the sense of  assess ing whether the determination of absence of 
ASBVd and its disease "is based on " these ISPMs.  
7.4.5.1.2.2   General surveillance system as  part of  the basis for the determination of 
absence of ASBVd in Costa  Rica 
7.461.   Costa  Rica states that, after learning that ASBVd was having a serious impact on Mexican 
avocado production, and as Mexico was the main supplier of avocados in Costa  Rica, it initiated the 
process of verifying its phytosanitary status in order to determine whether ASBVd was still absent 
in its territory .1141 Costa  Rica submits that it did not simply declare the absence of the pest, in a 
capricious or arbitrary manner, but that it followed the general guidelines of ISPM Nos. 6 and 8 and 
the respective guides for the determination of absence, and made, and continues to m ake, every 
effort to provide proper general and specific surveillance.1142 
7.462.   In its first written submission, Costa  Rica states that its phytosanitary status as free of 
ASBVd is confirmed by the two most widely recognized and technically authoritative internat ional 
phytosanitary databases, namely those of CABI and the EPPO.1143 
7.463.   In its response to the Panel's information request of 3 August  2020, Costa  Rica submits that 
the sources of information emanating from the general surveillance were revised on three separa te 
occasions, between 2015 and 2018, in order to keep information on the status of ASBVd up to date . 
It also notes that Exhibits MEX -131 and MEX -123 contain Reports ARP -002-2017 and ARP -006-2016, 
the bibliographies to which list the relevant publications r eviewed by the SFE with regard to ASBVd 
status in Costa  Rica.1144 
7.464.   Costa  Rica's response to the Panel's information request contains a general surveillance 
report from August  2020, which also notes that the bibliographical references consulted by the SFE 
for ASBVd to date are given in the reports submitted to the Panel as Exhibits MEX -131 and MEX -123 
(Reports ARP -002-2017 and ARP -006-2016), and that, to the SFE's knowledge, no document 
contains a reliable report on the presence of ASBVd in Costa  Rica.1145 
 
1139 Appellate Body Report, Australia – Apples , para. 215. See also Appellate Body Reports, 
US/Canada  – Continued  Suspension , para. 591.  
1140 According to its scope, ISPM No.  11 provides the details for carrying out a PRA to determine whether 
pests are quarantine pests (ISPM No.  11, (Exhibit MEX -77), p. 5).  
1141 Costa Rica's first written submission, para. 3.19.  
1142 Costa Rica's opening statement at the Panel's second meeting, para. 4.7.  
1143 Costa Rica's first written submission, paras.  3.18, 5.99 and 5.207.  
1144 Costa Rica's response to the Panel's information request of 3  August  2020, p. 12.  
1145 Costa Rica's response to th e Panel's information request of 3  August  2020, p. 12 and Annex 5, p. 6.  WT/DS524/R  
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  7.465.   The general surveillance report from August  2020 contains a bibliographical reference 
section . It is mentioned in this section that th e EPPO publication confirms that ASBVd is absent in 
Costa  Rica, and that the CABI publication verifies the absence of ASBVd.1146 
7.466.   Subsequently, in response to the Panel's questions following the Panel's second meeting with 
the parties, Costa  Rica states that the determination of absence of ASBVd in its territory was not 
based on the CABI and EPPO databases, but on the information obtained by the NPPO of Costa  Rica 
from surveillance activities.1147 
7.467.   Costa  Rica also points out that the CABI and EPPO databases are v ery useful for general 
consultations, and that they draw on bibliographical references and official information from the 
NPPO of each country . Therefore, where there are reasonable doubts about the content of the 
databases, or discrepancies between the bib liographical references and the official information, it is 
important to seek clarification from the NPPOs in charge of surveillance of the area concerned.1148 
7.468.   Mexico  submits that the CABI and EPPO databases cannot form the basis of the 
determination of abse nce of a pest in a territory, and that such information is not sufficient to 
constitute scientific evidence in light of the SPS  Agreement . Mexico notes that the information 
contained in these databases is purely referential, and is based on some  bibliograp hical sources, on 
statistics reported by indirect sources, or on what the NPPO of each country reports, without any 
scientific or statistical corroboration of the information provided . In Mexico's view, these are data 
registers or databases that compile in formation, which is not verified, much less endorsed, by those 
organizations.1149 
7.469.   Mexico asserts that the EPPO webpage indicates that the NPPO of Costa  Rica has conducted 
specific surveys for ASBVd, and that they all produced negative results, so the record of ASBVd is 
considered unreliable . For Mexico, this is an example of the lack of scientific rigour and consistency 
of the information in databases such as those of CABI and the EPPO, on which Costa  Rica based its 
PRAs.1150 
7.470.   Mexico also states that, despite th e fact that Costa  Rica attempts to minimize the real 
importance that its analysts accorded to the CABI and EPPO databases for their determination of 
absence of ASBVd, the PRAs show otherwise . Mexico adds that Costa  Rica considered that the 
information cont ained in these databases confirmed the phytosanitary status in its territory, but that 
it is clear that these data were provided by the NPPO of the country itself, which would call into 
question the reliability of Costa  Rica's phytosanitary status.1151 
7.471.   The Panel notes that Reports ARP -002-2017 and ARP -006-2016 indicate that, despite the 
fact that Hadidi et al.  (2003) and CABI (2017) state that ASBVd is present in Costa  Rica, this is 
incorrect, as it is based on the article by Vargas et al. (1997), which only mentions the presence of 
ASBVd in Peru, not in Costa  Rica.1152 
7.472.   The Panel consulted the experts about the general surveillance that served as part of the 
basis for determin ing the absence of ASBVd in Costa  Rica. The surveillance expert, Pablo Cortese, 
expressed the view initially that, although Exhibit CRI -17 of 2019 recounts some general surveillance 
activities, they were not explained in sufficient detail .1153 At the Panel's  meeting with the parties and 
experts, and in light of Costa  Rica's response to the Panel's information request of 3 August  2020, 
Mr Cortese expresses  the view that Costa  Rica submitted further information on the general 
surveillance activities that had be en carried out, namely that the activities are set out in a  more 
 
1146 Costa Rica's response to the Panel's information request of 3  August  2020, p. 12 and Annex 5, 
p. 17. 
1147 Costa Rica's response to the Panel's question No.  136, para. 92.  
1148 Costa Rica' s response to the Panel's question No.  136, para. 93.  
1149 Mexico's opening statement at the Panel's first meeting, para. 15; response to Panel question 
No. 38, para. 53; second written submission, para. 42.  
1150 Mexico's response to Panel question No.  38, para.  53 (citing EPPO Global Database, Costa  Rica 
(2019), (Exhibits CRI -41 and MEX -208)). 
1151 Mexico's comments on Costa Rica's response to Panel question No.  136, para. 3.  
1152 ARP-002-2017, (Exhibit MEX -84), p. 13 (citing Hadidi et al. (2003), (Exhibit CRI-121); and Vargas 
et al. (1991), (Exhibit CRI -137)); ARP -006-2016, (Exhibit MEX -85), p. 9 (citing Hadidi et al. (2003), (Exhibit 
CRI-121); and Vargas et al. (1991), (Exhibit CRI -137)). 
1153 Pablo Cortese's response to Panel question No.  82 for the experts.  WT/DS524/R  
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  organized  fashion , and information is provided that had not been submitted originally . Mr Cortese  
states that it seems to him , however, that the continuity of the activities undertaken over t ime is 
not well documented, nor was it clear how the activities are actually documented . He gives as an 
example that a revision of sources was alluded to, but that the sources are the same as in the PRA, 
and they are also not clearly specific to ASBVd in a ll cases . He add s that, in general surveillance, it 
is very important to communicate with other entities concerned, especially with producers, 
producers' organizations, non-NPPO foundations or associations, which have information that is 
generated outside of the NPPO, but that the NPPO needs to validate in some way . He note s that this 
information was provided in the additional report submitted by Costa  Rica, but partially, as he had 
found references to only one meeting with producers . Mr Cortese con clude s that the information 
needs to be presented in a slightly more orderly fashion and that, for him, there is still insufficient 
information.1154 
7.473.   Regarding the bibliographical sources referred to in Reports ARP -002-2017 and 
ARP-006-2016, these specifically mention "Hadidi et al. (2003)"and "CABI (2017)" when referring 
to the absence of ASBVd in Costa  Rica; not to rely on  the content of the publication and the database, 
but rather to contradict the information contained in the sources  on the presence of ASBVd in 
Costa  Rica. 
7.474.   Report ARP -002-2017 also contains a table 1, entitled "List of potential quarantine pests 
associated with fresh avocados from Mexico", which includes ASBVd, and indicates whether it follows 
the pathway, whether it i s a regulated pest, and whether it is present in Costa  Rica. The sources De 
la Torre et al.  (2009), SINAVEF (2010), CABI (2015), and SFE (2015) are given in the comments 
column .1155 It is not clear whether any of these sources have been revised with respect to the status 
of ASBVd in Costa  Rica, but the Panel notes that Report ARP -002-2017 refers to SINAVEF (2010), 
CABI (2014) and De la Torre et al. (2009) to support the presence of ASBVd in Mexico1156, and SFE 
(2015) does not mention Costa  Rica's phytosanitary status.1157 
7.475.   As has been noted, in its response to the Panel's information request of 3 August  2020, 
Costa  Rica submits that the sources of information emanating from the general surveillance were 
revised on three separate occasions, in order to keep information on the status of ASBVd up to date . 
It also points out that Exhibits MEX -131 and MEX -123 contain Reports ARP-002-2017 and 
ARP-006-2016, the bibliographies to which list the relevant publications revised by the SFE with 
regard to the status of ASBVd in Costa  Rica.1158 
7.476.   Furthermore, Costa  Rica's response to the Panel's information request contains a general 
survei llance report from August  2020, which notes that the bibliographical references that have been 
consulted by the SFE for ASBVd are given in the reports submitted to the Panel as Exhibits MEX -131 
and MEX -123 (Reports ARP -002-2017 and ARP -006-2016), and that,  to the SFE's knowledge, no 
document contains a reliable report on the presence of ASBVd in Costa  Rica.1159 
7.477.   The Panel notes that Costa  Rica does not specify in its response which of the bibliographical 
references in the reports were consulted in relation to the status of ASBVd in Costa  Rica. 
7.478.   Costa  Rica's general surveillance report of August  2020 contains an explanatory note by the 
UARP of the SFE dated 3 March  2014, which indicates that CABI (2014) cites EPPO (2014) as a 
source of information to indicate tha t ASBVd is present in Costa  Rica, that EPPO (2014) in turn cites 
Semancik (2003), and that Semancik, in the publication Viroids , cites Vargas et al. (1991) when 
referring to Costa  Rica, but Vargas at no time mentions Costa  Rica.1160 That explanatory note als o 
contains the communication from the UARP of the SFE to Dr Semancik, asking him about the 
statement made in his paper in Hadidi et al. (2003) that ASBVd is present in Costa  Rica.1161 
 
1154 Pablo Cortese, transcript of the Panel's meeting with the parties and  the experts, day 3, p p. 47-48. 
1155 ARP-002-2017, (Exhibit MEX -84), pp. 10-11. 
1156 ARP-002-2017, (Exhibit MEX -84), p. 34.  
1157 Technical report 025 -2015-ARP-SFE (2015), (Exhibit MEX -138). 
1158 Costa Rica's response to the Panel's information request of 3  August  2020, p. 12.  
1159 Costa Rica's response to the Panel's information request of 3  August  2020, p. 12 and Annex 5, p. 6.  
1160 Costa Rica's response to the Panel's information request of 3  August  2020, Annex 5, pp 8 -9. 
1161 Costa Rica's response to the Panel's information request of 3  August  2020, p. 12 and Annex 5, 
pp 9-14. WT/DS524/R  
- 184 - 
  7.479.   As mentioned, the general surveillance report of August  2020 also contains a bibliographical 
reference section, which indicates that the EPPO publication confirms that ASBVd is absent in 
Costa  Rica, and that the CABI publication verifies the absence of ASB Vd.1162 
7.480.   The information in that report is identical to the information Costa  Rica submitted in its 
"Report on the s urveillance to determin e the absence  of ASBVd in avocado plantations in Costa  Rica", 
of September  2019, contained in Exhibit CRI -17.1163 The sect ion on general surveillance in that 
report also mentions that the EPPO publication confirms that ASBVd is absent in Costa  Rica, and that 
the CABI publication verifies the absence of ASBVd.1164 
7.481.   In light of the foregoing, although Costa Rica does not refer to the specific publications that 
it considers "relevant" for the status of ASBVd in Costa Rica that it mentions are in the bibliographies 
of Reports ARP-002-2017 and ARP -006-2016, the Panel can suppose  that Costa  Rica revised the 
scientific literature it use d to prepare said r eports, and found no information on the presence of 
ASBVd in Costa  Rica, except for the information contained in the CABI database in 2017 and in 
Semancik's paper in Hadidi et al.  (2003), which Costa  Rica considered contained incorrect 
information.  
7.482.   Subsequently, Costa  Rica has consulted the EPPO and CABI databases to confirm the 
absence of ASBVd in Costa  Rica. Although both databases do indicate that ASBVd has been absent 
in Costa  Rica since 2019, both cited Costa  Rica's own NPPO as a sou rce. In fact, CABI's information 
cites the EPPO and the NPPO of Costa  Rica as sources, and the EPPO's information cites Costa  Rica's 
NPPO as a source, via correspondence with CABI dated June 2019, and indicates that the record of 
ASBVd is unreliable .1165 In view of the foregoing, under the specific circumstances of this dispute, 
the Panel does not consider that the CABI and EPPO databases may be used to confirm the absence 
of ASBVd in Costa  Rica, when those databases only reflect information provided by the  NPPO itself.  
Costa Rica itself acknowledged, in its response to the Panel's questions following the Panel's second 
meeting with the parties, that the databases draw on bibliographical references and official 
information from the NPPO of each country .1166 
7.483.   In addition, although Costa  Rica submits that the revision of the sources of information 
emanating from the general surveillance were revised on three separate occasions in order to keep 
information on the status of ASBVd up to date, the sources remain the s ame as those in the reports . 
The information provided in Annex 5 to Costa Rica's response to the Panel's information request, 
which comprises the 2020 general surveillance report, is essentially the same as the information 
provided in previous years.  The P anel does not find in the record any attempt by Costa Rica to 
continually evaluate sources, i.e. there is a lack of information corroborating that Costa Rica 
continues to gather and explore bibliographical sources, such as scientific articles subsequent to  
Reports ARP -002-2017 and ARP -006-2016, in order to check whether any of them contain 
information relating to the presence of ASBVd in Costa Rica.  
7.484.   In its response to the Panel's information request of 3 August  2020, Costa Rica also notes 
that, in general, information provided by the public via telephone, email or physically is compiled at 
any of its eight Regional Operational Units by officials available to receive pest reports .1167 Costa Rica 
states that the following general surveillance activities are carr ied out : (i) coordination with the 
academic sector (via telephone or correspondence), as was the case with the UCR, with which sample 
analysis contracts have been concluded when requested ; (ii) direct contact with farmers in the 
regions where avocado farmi ng is established, through visits by SFE officials as part of their field 
inspection activities, in order to verify or rule out any suspected presence of ASBVd ; (iii) training 
 
1162 Costa Rica's response to the Panel's information request of 3 August  2020, p. 12 and Annex 5, 
p. 17. 
1163 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, "Informe de 
vigilancia para la determinación de la ausencia del ASBVd en las plantaciones de aguacate en Costa Rica", 
Oficio DOR -RN-0001-2019, 23 de septiembre de 2019 ( Summary 2014 -2019 sampling surveys ), (Exhibit 
CRI-17). 
1164 Summary 2014 -2019 sampling surveys , (Exhibit CRI -17), p. 5.  
1165 CABI (2019), (Exhibit CRI -14); and EPPO Costa Rica (2019), (Exhibits CRI -41 and MEX -208). 
1166 Costa Rica's response to Panel question No.  136, para. 93.  
1167 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 13 -14. WT/DS524/R  
- 185 - 
  sessions with groups of producers, particularly in the Los Santos region, the co untry's main Hass 
avocado -producing area.1168 
7.485.   With respect to all the general surveillance activities described in the previous paragraph, 
Costa Rica's response to the Panel's information request  documents, in  Annex 13 , only one meeting 
held with avocado pro ducers in the Los Santos zone in 201 6, at which, according to the agenda, 
presentations were made on ASBVd, on the sampling survey and on the sampling results.1169 
7.486.   Costa Rica also states that, due to a report by an agronomist regarding the alleged presence 
of ASBVd, the SFE sent officials to the location indicated by that person . The officials went through 
the whole plantation and took samples for molecular diagnostic test from the allegedly infected tree 
and 10 additional surrounding trees.1170 This information relates to the report by Dr  Obregón 
discussed in section 7.3 above.  
7.487.   From all the information provided by Costa Rica, this Panel can see that Costa Rica carried 
out some general surveillance activities, both when  prepar ing Reports ARP -002-2017 and  
ARP-006-2016 and subsequently, in order to determine the presence or absence of ASBVd in its 
territory.  
7.488.   However, the Panel does not consider that the information gathered by Costa Rica through 
bibliographical sources, including the databases, is suf ficient for Costa Rica to substantiate the 
absence of ASBVd in its territory . Neither does the Panel consider that Costa Rica's statements in its 
response to the Panel's information request of 3 August  2020 on its other general surveillance 
activities are sufficient for Costa Rica to substantiate the absence of ASBVd in its territory.  
7.489.   The Panel therefore concludes that the general surveillance activities with respect to ASBVd 
carried out by Costa Rica are not sufficient to enable Costa Rica to substantiate the determination 
of absence of ASBVd in its territory.  
7.4.5.1.2.3   Specific surveillance system as part of the basis for the determination of 
absence of ASBVd in Costa Rica  
7.490.   As indicated above, Reports ARP -002-2017 and ARP -006-2016 state that recent sampling 
surveys c onfirmed that the pest is absent in Costa Rica ; and that those sampling surveys were 
conducted by the Regional Operations Department in the cantons of Grecia, Heredia, Naranjo, 
Cartago, Desamparados, Dota, El Guarco, León Cortés, Tarrazú, Abangares, Tilará n, Liberia, 
Esparza, Orotina and Coto Brus.1171 
7.491.   According to the documentary information provided by the parties throughout the 
proceedings, Costa Rica has conducted four sampling surveys in the period between 2014 and 2019:  
a. The first sampling survey was con ducted from September to October  20141172, with 264 
samples requested at the national level .1173 The diagnostic tests were carried out in the 
Molecular Biology Laboratory of the UCR . During the sampling survey, some of the tests 
were positive and were sent to Macrogen Inc. (Korea) for sequencing, following which 
Costa Rica reports that these were identified as false positives.1174 
 
1168 Costa Rica's response to the Panel's informa tion request of 3  August  2020, p. 15.  
1169 Costa Rica's response to the Panel's information request of 3  August  2020, Annex 13.  
1170 Costa Rica's response to the Panel's information request of 3  August  2020, pp 14 -15; and Summary 
2014-2019 sampling surveys , (Exhibit CRI -17), p. 5.  
1171 ARP-002-2017, (Exhibit MEX -84), p. 13; ARP -006-2016, (Exhibit MEX -85), p. 9.  
1172 According to Exhibit MEX -115, the samples of the first sampling survey were collected between 1 
September and 8  October  2014. (Memorandum CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115)). 
1173 Sampling survey 2014, (Exhibit MEX -64). 
1174 See Memorandum CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115);  
Memorandum CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134); Centro de Investigaciones en Biología 
Celular y Molecular de la Universidad de Costa Rica, Oficio CIBCM -167-2017, 17 de marzo de 2017 
(Memorandum CIBCM -167-2017 (2017)), (Exhibit CRI -16); and Centro de Investigaciones en Biología Celular y 
Molecular de la Universidad de Costa Rica, Oficio CIBCM -501-2019, 9 de sep tiembre de 2019 (Memorandum 
CIBCM -501-2019 (2019)), (Exhibit CRI -15). WT/DS524/R  
- 186 - 
  b. The second sampling survey was conducted from November  2015 to January  2016.1175 In 
total, 322 samples were taken from the Central Eastern Region . The diagnostic tests were 
carried out  in the Molecular Biology Laboratory of the UCR and in the Pest Diagnostic 
Laboratory of the SFE.1176, 1177 
c. The third sampling survey was conducted from Novem ber 2017 to February  20181178, with 
306 samples taken from the Central Eastern Region and the Chorotega region . The 
diagnostic tests were carried out in the Pest Diagnostic Laboratory of the SFE.1179 
d. The fourth sampling survey was conducted from February to April 20191180, with 439 
samples taken from the Central Eastern, Chorotega, Central Western, Brunca and Central 
Pacific regions . The diagnostic tests were carried out in the Pest Diagnostic Laboratory of 
the SFE.1181 
7.492.   Mexico  submits that the sampling surveys cond ucted by Costa Rica are not based on 
statistics or scientific methodology, nor is there visual evidence of the inspection, selection and 
sample -taking process . Mexico adds that, despite flaws in the 2014 sampling survey, the results 
report states that posi tive samples were found . Therefore, in order to be able to continue declaring 
itself free of ASBVd, Costa Rica should have conducted further sampling surveys to confirm that 
assertion.1182 
7.493.   Mexico states that the PRAs do not refer to the protocol and methodol ogy used by Costa Rica 
to inspect and take samples from the trees analysed in order to confirm the alleged absence of 
ASBVd in Costa Rica, and that it is evident from the documents Costa Rica shared with Mexico that 
these are not based on statistics or sci entific methodology.1183 
7.494.   Mexico further submits that the sampling surveys and surveillance methods to confirm the 
absence of ASBVd and its disease should have been based on ISPM No. 6.1184 Mexico presents a 
table detailing, with regard to the 2014 and 2015 sampling surveys, the inconsistencies that it 
considers it found with respect to section 2 of ISPM No. 6. According to Mexico:  
 
1175 According to Annexes 4 and 12 to Costa Rica's response to the Panel's information request, the 
samples of the second sampling survey were received by the laboratories between 25  Novemb er 2015 and 
15 January  2016. (Costa Rica's response to the Panel's information request of 3  August  2020, Annexes 4 and 
12). 
1176 Sampling survey 2015 -2016, (Exhibit MEX -65); Costa Rica's response to the Panel's information 
request of 3 August 2020, Annex 4, p p. 88-101, and Annex 12, pp. 157 -163. 
1177 The Panel notes that, as reported by Costa Rica, the Molecular Biology Laboratory of the SFE's Pest 
Diagnostic Laboratory has not yet been accredited. (Costa Rica's response to the Panel's information request of 
3 August  2020, p. 22).  
1178 According to Exhibits CRI -19 and CRI -20, the samples of the third sampling survey were received by 
the laboratory between 28  November and 1  December  2017, and on 7 and 13  February  2018. ( Servicio 
Fitosanitario del Estado del Minister io de Agricultura y Ganadería de Costa Rica, "Informe final sobre muestreo 
2017-2018" (1), Oficio LDP -002-18, 15 de enero de 2018 ( Final report (1) on 2017 –2018 sampling survey ), 
(Exhibit CRI -19); and Servicio Fitosanitario del Estado del Ministerio de Agr icultura y Ganadería de Costa Rica, 
"Informe final sobre muestreo 2017 -2018" (2), Oficio LDP -014-18, 22 de febrero de 2018 ( Final report (2) on 
2017-2018 sampling survey ) (Exhibit CRI -20)). 
1179 Final report (1) on 2017 –2018 sampling survey, (Exhibit CRI -19); and Final report (2) on 2017 -
2018 sampling survey, (Exhibit CRI -20). 
1180 According to Annex 20 to Costa Rica's response to the Panel's information request, the samples of 
the fourth sampling survey were received by the laboratory between 26  February  2019 and 10  April 2019. 
(Costa Rica's response to the Panel's information request of 3  August  2020, Annex 20). Exhibit CRI -83 states 
that the fourth sampling survey was planned for the period between 25  February  2019 and 12  April 2019. 
(Servicio Fitosanita rio del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, "Prospección del 
viroide SunBlotch (ASBVd) en el cultivo de aguacate" (2019) ( ASBVd surveys in Costa Rica (2019) ), (Exhibit 
CRI-83), p. 8 ). 
1181 Servicio Fitosanitario del Estado del Mini sterio de Agricultura y Ganadería de Costa Rica, "Informe 
final sobre muestreo de 2019", Oficio LDP -RAM-0003-2019, 24 de junio de 2019 (Final report on  2019 
sampling survey), (Exhibit CRI -21). 
1182 Mexico's first written submission, para. 449 (citing Memorand um CIBCM -PCDV -044-2014 (2014), 
(Exhibit  MEX-115)). 
1183 Mexico's first written submission, para s. 441-442. 
1184 Mexico's first written submission, para. 451.  WT/DS524/R  
- 187 - 
  a. Costa Rica failed to prove that the documents were approved by  the head of the SFE;  
b. Costa Rica conducted two sampling surveys without first having prepared a survey plan 
and, therefore, without such a plan having been approved by the NPPO.  
c. Costa Rica has categorized ASBVd as a pest that is "absent : no pest records" . However, 
the 2014 sampling survey produced positive results for ASBVd in 16 samples and 
suspicious results in five more . Costa Rica should therefore have taken these results into 
consideration in order to correctly determine the status of ASBVd in its terr itory. The 
sampling surveys did not cover the six economic regions . For the 2014 sampling survey, 
only 3.8 % of the total surface area planted with avocado was tested, and in the 2015 -2016 
sampling survey, 11.6 % was tested . The results obtained are therefor e neither 
representative nor conclusive . Moreover, for Mexico, the information produced cannot be 
considered as complete, reliable, representative and sufficient to determine the absence 
of ASBVd, as no testing was carried out on asymptomatic trees.  
d. The in spection of each area was planned through statistical analysis and scheduled by 
omitting random sampling.1185 
7.495.   Mexico notes that sampling surveys are not conducted in accordance with the provisions of 
ISPM Nos. 6 and 8, as, pursuant to the ISPMs, determining the absence of ASBVd requires expert 
judgement, and those experts must use, inter alia , information from individual pest records, pest 
records from surveys, data on pest absence and findings of general surveillance . Mexico states that 
Costa Rica was respon sible for developing surveillance protocols and conducting detection surveys 
in order to determine whether ASBVd was present in its territory.1186 
7.496.   Mexico states that the sampling surveys conducted by Costa Rica lack scientific and technical 
rigour, and that Costa Rica's phytosanitary status is questionable for the following reasons : (i) the 
lack of representativeness of and discrepancies in the samples obtained ; (ii) the suitability of the 
detection methods applied ; and (iii)  the type of material collected du ring sample taking.1187 
7.497.   Mexico adds that the sampling surveys failed to follow any surveillance protocols ; that 
Costa  Rica merely stated ex post , and on two undated sheets, that the surveys complied with 
the ISPMs ; and that the surveys never provided evidence of the surveillance protocols required 
by the ISPMs . In Mexico's view, given the lack of a specific surveillance programme in compliance 
with the IS PMs, any finding on the absence of ASBVd is unjustified and invalid .1188 Mexico also points 
out that,  in 2019, Costa Rica issued a n alleged  surveillance protocol, with which it actually intends 
to justify ex post the absence of such a programme.1189 
7.498.   Mexico maintains that Costa Rica has submitted, throughout the dispute, information 
prepared ex professo  and ex post  to demonstrate the existence of a surveillance system, but that 
the flaws and errors in Costa Rica's surveillance systems were identified by Pablo Cortese and 
Robert  Griffin, who highlighted the many inconsistencies that vitiate the surveillance sy stem 
implemented by Costa Rica to try to justify its ASBVd -free status.1190 
7.499.   Mexico states that Costa Rica failed to demonstrate that the surveillance methodology used 
to declare its territory free of the pest was based on the relevant international standards , guidelines 
 
1185 Mexico's first written submission, para. 451  and table 9 . 
1186 Mexico's opening statement at the Panel's first meeting, paras.  16-18. 
1187 Mexico's second written submission, para. 22.  
1188 Mexico's opening statement at the Panel's first meeting, para. 19 (citing Servicio Fitosanitario del 
Estado de Costa Rica  (SFE) , Departamento de Operaciones Regionales, "Aplicación de las NIMF 6 y 8 por parte 
del Servicio Fitosanitario del Estado" ( SFE, Application of ISPM Nos. 6 and 8 by the SFE, (Exhibit MEX -114), 
p. 2). 
1189 Mexico's second written submission, para. 178 (citing Servicio Fitosanitario del Estado del Minist erio 
de Agricultura y Ganadería de Costa Rica, "Procedimiento para el muestreo de aguacate fruta con el fin de 
verificar la ausencia o presencia de la plaga 'Avocado Sunblotch viroide' (Mancha de Sol)", CFI -PO-16, 6 de 
febrero 2018  (Document CFI -PO-16 (201 8)), (Exhibit CRI -91)). 
1190 Mexico's comments on Costa Rica's response to Panel question No.  137, para. 2.  WT/DS524/R  
- 188 - 
  and recommendations, which has a direct impact on the findings of its risk assessment . In Mexico's 
view, the surveillance system suffered from flaws, omissions and shortcomings from the outset.1191 
7.500.   Mexico adds that, as a result of the analysis o f Costa Rica's sampling methodology and its 
protocol for the detection of ASBVd, it can be concluded that Costa Rica did not consider relevant 
inspection, sampling and testing methods that would lead to achieving objective and reliable 
results.1192 
7.501.   In Mexico 's view, while it is possible that a surveillance system might be improved over time, 
an update would not excuse  the flaws and errors found in the system that led to the assumptions of 
absence on which the disputed measures were developed . Mexico submits t hat, in any event, all the 
experts agreed with Mexico that Costa Rica's determination of absence is questionable and, as a 
result, the PRA cannot be considered to be consistent with the obligations under Article  5.1 of the 
SPS Agreement, on the basis of an  assumption that is at the very least uncertain and, therefore, not 
appropriate to the circumstances.1193 
7.502.   Mexico notes that it demonstrated the lack of scientific rigour in the methodology used by 
Costa Rica  for the sampling  surveys , given that : (i) no mention is made of the selection criteria for 
the farms to be sampled, or of the testing follow -up or frequency ; (ii) the geographical selection of 
the sampling areas does not cover all areas where avocado trees are found, an issue that extended 
to backyar ds and wild areas ; (iii) the statistical formula used has not been notified, and the activity 
of monitoring a pest's status is not clear ; (iv) the level of training given to field and laboratory staff 
has not been reported ; (v) no evidence was provided to demonstrate what additional general 
surveillance activities were carried out and promoted, for example surveillance at waste disposal 
sites such as tourist spots and cruise ship waste disposal areas ; (vi) both the methodology and the 
results were presented  in a disorderly manner ; and (vii) the traceability of the reported samples 
cannot be ascertained.1194 
7.503.   Costa Rica , for its part , states that, after learning that ASBVd was having a serious impact 
on Mexican avocado production, and as Mexico was the main supp lier of avocados to Costa Rica, it 
initiated the process of verifying its phytosanitary status in order to determine whether ASBVd was 
still absent in its territory.1195 
7.504.   Costa Rica notes that it stepped up surveillance with respect to ASBVd, in accordance with 
ISPM No. 6, and decided to carry out sampling surveys nationally to determine its phytosanitary 
status with respect to ASBVd, in accordance with ISPM No. 8. Costa Ri ca asserts that, given that all 
the samples tested negative for ASBVd, its phytosanitary status as free of ASBVd was confirmed .1196 
Costa Rica also states that it did not simply declare the absence of the pest, in a capricious or 
arbitrary manner, but that i t followed the general guidelines of ISPM Nos. 6 and 8 and the respective 
guides for the determination of absence, and made, and continues to make, every effort to provide 
proper general and specific surveillance.1197 
7.505.   Costa Rica submits that, in the first sa mpling survey of 2014, a total of 258 samples were 
analysed, which produced a negative result for the presence of ASBVd . Of those samples, 25 did 
initially produce false positives but, after they were sent by the Molecular Biology Laboratory of the 
UCR to Korea to be sequenced, they ultimately proved to be negative for ASBVd.1198 
7.506.   Costa Rica adds that a second sampling survey was conducted between 2015 and 2016 in 
which 322 samples were collected1199, 171 of which were tested by the Molecular Biology Laboratory 
of the UCR and 151 were tested by the Molecular Biology Section of the SFE's Pest Diagnostic 
 
1191 Mexico's comments on Costa Rica's response to Panel question No.  137, para. 3.  
1192 Mexico's second written submission, para. 198.  
1193 Mexico's opening st atement at the Panel's second meeting, para. 40.  
1194 Mexico's comments on Costa Rica's response to Panel question No.  153, para. 4.  
1195 Costa Rica's first written submission, para. 3.19.  
1196 Costa Rica's first written submission, para. 3.20.  
1197 Costa Rica's opening statement at the Panel's second meeting, para. 4.7.  
1198 Costa Rica's first written submission, para. 3.21 (citing Memorandum CIBCM -PCDV -021-2015 
(2015), (Exhibit MEX -134); Memorandum CIBCM -501-2019 (2019), (Exhibit CRI 15 ); Memorandum CIBCM -
167-2017 (2017), (Exhibit  CRI-16); and Summary 2014 -2019 sampling surveys , (Exhibit CRI -17)). 
1199 Costa Rica's first written submission, para. 3.22 (citing Sampling 2015 -2016, (Exhibit MEX -65)). WT/DS524/R  
- 189 - 
  Laboratory . Costa Rica states that all the samples subjected to laboratory analysis were negative for 
the presence of ASBVd.1200 
7.507.   Costa Rica also submits that, in 201 6, it received a report of a positive sample sent to a 
Mexican laboratory by Dr Miguel Obregón ; and that, in response to that report, the SFE's Regional 
Operations Department located the producer concerned and sampled the same tree from which that 
original  sample was taken, as well as 10 other surrounding trees, obtaining negative results for 
ASBVd for all the samples tested.1201 
7.508.   Costa Rica states that a third sampling survey was conducted between 2017 and 2018, in 
which 306 samples were collected and sent to  be tested by the Molecular Biology Section of the 
SFE's Pest Diagnostic Laboratory using the real -time RT -PCR technique ; and that all the samples 
tested confirmed the negative result for ASBVd.1202 
7.509.   Costa Rica submits that it conducted a fourth sampling survey in 2019, during which 439 
samples were collected ; and that all the samples subjected to laboratory analysis also proved 
negative for ASBVd.1203 
7.510.   Costa Rica points out that it has conducted four intensive sampling surveys on its avocado 
plantat ions, testing 1,325 samples to date, which, in all cases, have proved negative for ASBVd.1204 
7.511.   Costa Rica adds that there is a national register of farms, that it explained  how the 
geographical selection of sampling areas is made, ensuring the randomness and representativeness 
of the areas  chosen , including backyards ; and that, since 2009, its laboratories have had the capacity 
to use RT -PCR, the best diagnostic technique for ASBVd in terms of cost -effectiveness and time.1205 
7.512.   The Panel  would like to begin its an alysis by noting that the determination of absence of a 
pest in the territory of a country is the responsibility of the NPPO of that country . Thus, the collection 
of information on a pest's status in that territory is also the responsibility of the NPPO of  said country . 
Accordingly, the surveillance system is the responsibility of the NPPO of each country, and relevant 
information, in particular information on specific surveillance, may only be in the possession of the 
country concerned.  
7.513.   Costa Rica shared c ertain documents with Mexico on its sampling surveys, which Mexico 
submitted as Exhibits . Mexico indicates that the documents shared by Costa Rica were the following:  
a. An SFE document on the 2014 sampling survey1206; 
b. A memorandum from the CIBCM of the UCR, da ted 6 April 2015, described in section  7.3 
above1207; and 
c. An SFE document on the 2015 -2016 sampling survey.1208 
7.514.   Mexico submitted two Excel tables that Costa Rica had shared with the Government of Mexico 
as ASBVd surveillance records.1209 
 
1200 Costa Rica's first written submission, para. 3.22 (citing Summary 2014 -2019 sampling surveys , 
(Exhibit  CRI-17)). 
1201 Costa Rica's first written submission, para. 3.23 (citing Obregón  rebuttal (2015), (Exhibit CRI -18); 
and Summary 2014 -2019 sampling surveys , (Exhibit CRI -17)). 
1202 Costa Rica's first written submission, para. 3.24 (citing Final report (1) on 2017 -2018 sampling 
survey, (Exhibit CRI -19); and Final report (2) on 2017 -2018 sampling survey, (Exhibit CRI -20)). 
1203 Costa Rica's first written submission, para. 3.25 (citing Fin al report on 2019 sampling survey, 
(Exhibit  CRI-21)). 
1204 Costa Rica's first written submission, para. 3.27.  
1205 Costa Rica's second written submission, para. 3.85.  
1206 Sampling survey 2014, (Exhibit MEX -64). (Mexico's first written submission, para. 442).  
1207 Memorandum CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134). (Mexico's first written submission, 
para. 442).  
1208 Sampling survey 2015 -2016, (Exhibit MEX -65). (Mexico's first written submission, para. 442).  
1209 Registro de vigilancia de aguacate que Costa Rica compar tió al gobierno de México (seguimiento) 
(Avocado surveillance record), (Exhibit MEX -116); and Registro de vigilancia en viveros que Costa Rica WT/DS524/R  
- 190 - 
  7.515.   In addition, Mexico submitted an SFE document, undated, entitled "Application of ISPM 
Nos. 6 and 8 by the State Phytosanitary Service".1210 
7.516.   The parties provided additional documentary evidence on the matter throughout their 
submissions, responses and comments.  
7.517.   In its comments on the replies to the Panel's additional questions for the experts Ricardo 
Flores Pedauyé and Pablo Cortese, Costa Rica identified the following Exhibi ts that it considers to 
contain relevant information on Costa Rica's general and specific surveillance : CRI-12, CRI -15, 
CRI-16, CRI -17, CRI -18, CRI -19, CRI -20, CRI -21, CRI -69, CRI -70, CRI -71, CRI -72, CRI -73, CRI -82, 
CRI-83, CRI -84, CRI -85, CRI -86, CRI -87, CRI-88, CRI -89, CRI -90, CRI -91, CRI -92, CRI -93, CRI -95, 
and CRI -96, inter alia .1211, 1212 
7.518.   In addition to the evidence Costa Rica shared with the Government of Mexico, the evidence 
that the Panel considered relevant is as follows:  
a. A document issued by the Pest Diagnostic Laboratory of the SFE, approved in March  2017, 
the stated objective of which is to describe activities for the molecular diagnosis 
of ASBVd.1213 
b. A memorandum from the CIBCM of the UCR, dated 9 September  2019, describe d in 
section  7.3 above.1214 
c. A memorandum from the CIBCM, dated 1 7 March  2017, described in section 7.3 above.1215 
d. A document issued by the Regional Operations Department of the SFE, dated 
September  2019, entitled " Informe de vigilancia para la determinación de  la ausencia del 
ASBVd en las plantaciones de aguacate en Costa Rica " (Report on the s urveillance to 
determin e the absence of ASBVd in avocado plantations in Costa Rica).1216 
e. A letter from the SFE, dated 1 8 December  2015, described in section 7.3 above.1217 
f. A memorandum from the Central Pest Diagnostic Laboratory of the SFE, dated 
15 January  2018, regarding laboratory results for the 2017 -2018 sampling survey.1218 
g. A memorandum from the Central Pest Diagnostic Laboratory of the SFE, dated 
22 January  2018, regarding laboratory results for the 2017 -2018 sampling survey.1219 
 
compartió al gobierno de México (seguimiento) (Nursery surveillance record), (Exhibit MEX -117). (Mexico's first 
written submission, fn  242).  
1210 SFE, Application of ISPM Nos. 6 and 8 by the SFE, (Exhibit MEX -114). 
1211 Costa Rica's comments on Pablo Cortese's response to the Panel's additional question No.  3 for 
Pablo Cortese, page 10.  
1212 The Panel notes that Exhibits CRI -91 to CRI -96 relate to the sampling procedure at the border 
(CRI-91: Procedure for sampling avocados for the purpose of verifying the absence or presence of ASBVd, 
which applies to consignments of avocados imported from countries with ASBVd; C RI-92: Sampling record of 
unprocessed plant products at entry points; CRI -93: chain of custody record; CRI -95: Indicates the time it 
takes to transfer the fresh avocado fruit samples from the entry point to the laboratory, and the percentage of 
consignment s subject to laboratory testing and which have proved positive for ASBVd; CRI -96: Instructions for 
sampling plant products at phytosanitary checkpoints for diagnostic purposes). The Panel therefore does not 
consider those exhibits to be germane to specific  surveillance as the premise for determining absence of ASBVd 
in Costa  Rica. 
1213 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, "Detección 
molecular del Avocado sunblotch viroid (ASBVd)", LAB -LDP-BM-PT-06, que rige a partir del 27 de marzo de 
2017 (Document LAB -LDP-BM-PT-06 (2017)), (Exhibits CRI -12 and CRI -86). 
1214 Memorandum CIBCM -501-2019 (2019), (Exhibit CRI -15). 
1215 Memorandum CIBCM -167-2017 (2017), (Exhibit CRI -16). 
1216 Summary 2014 -2019 sampling surveys , (Exhibit C RI-17). 
1217 Obregón rebuttal (2015), (Exhibit CRI -18). 
1218 Final report (1) on 2017 -2018 sampling survey, (Exhibit CRI -19). 
1219 Final report (2) on 2017 -2018 sampling survey, (Exhibit CRI -20). WT/DS524/R  
- 191 - 
  h. A memorandum from the Central Pest Diagnostic Laboratory of the SFE, dated 
24 June 2019, regarding laboratory results for the 2019 sampling survey.1220 
i. A document from the Regional Operatio ns Department of the SFE, entitled " Procedimiento 
de toma de muestras de plagas en vegetales en el campo para diagnóstico " (Procedure 
for taking pest samples from plants in the field for diagnostic purposes), approved in 
February  2018, the stated purpose o f which is to establish the procedures to be followed 
when taking and preparing samples of plant products or arthropods in the field, to carry 
out phytosanitary analyses for diagnostic purposes.1221 
j. A document from the Regional Operations Department of the S FE, entitled " Prospección 
del viroide Sun Blotch (ASBVd) en el cultivo de aguacate . Costa Rica. 2019 " (Surveying 
for avocado sunblotch viroid (ASBVd) in avocado crops . Costa Rica. 2019), the stated 
objective of which is to carry out a survey of avocado cro ps at the national level on the 
avocado sunblotch viroid (ASBVd).1222 
k. An SFE map, entitled " Fincas muestreadas para determinar la presencia o ausencia del 
ASBVd, 2014 -2019" (Farms sampled to determine the presence or absence of ASBVd, 
2014-2019).1223 
l. A memorandum from the SFE, dated 2 6 November  2019, regarding the SFE's pest 
surveillance system, entitled " Sistema de Vigilancia Fitosanitaria  (SIVIFI) " (Phytosanitary 
surveillance system (SIVIFI)).1224 
m. A memorandum from the SFE, dated 2 8 November  2019, which contains a list of avocado 
backyard farms sampled to date in Costa Rica, as well as a map entitled " Mapa con la 
ubicación de muestreo de aguacate en traspatios, para determinar la presencia o ausencia 
del ASBVd, 2015 -2019" (Map showing the location o f avocado trees sampled in backyards, 
to determine the presence or absence of ASBVd, 2015 -2019).1225 
n. A document issued by the Regional Operations Department of the SFE, entitled 
"Procedimiento de Vigilancia y Control de Plagas Reglamentadas " (Procedure for t he 
surveillance and control of regulated pests), approved in October  2018, the stated purpose 
of which is to implement mechanisms to monitor and control regulated pests that may 
cause damage to domestic agricultural production.1226 
o. A document issued by the U nit for Planning, Quality Control and Internal Checks of the 
SFE, entitled " Instructivo sobre las responsabilidades y autoridades relacionadas con el 
Sistema de Gestión de la Calidad " (Instructions on responsibilities and authorities related 
to the quality  control system), approved in March  2019, the stated purpose of which is to 
 
1220 Final report on 2019 sampling survey, (Exhibit CRI -21). 
1221 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, 
"Procedimiento de toma de muestras de plagas en vegetales en el campo para diagnóstico",  OR-RN-PO-03, 
13 de febrero  2018 (Document OR -RN-PO-03 (2018)), (Exhibit CRI -82). 
1222 ASBVd survey in Costa  Rica (2019), (Exhibit CRI -83). 
1223 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Unidad de 
Biometría y Sistemas de Información  Geográfica, "Fincas muestreadas para determinar la presencia o ausencia 
del ASBVd", 2014 -2019 (Map sampling surveys 2014 -2019), (Exhibit CRI -84). 
1224 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, 
Departamento Ope raciones Regionales, Unidad de Biometría y Sistemas de Información Geográfica, Borbón 
Martínez, OR -BSG-004/2019, 26 de noviembre 2019 (Memorandum OR -BSG-004/2019 (2019)), 
(Exhibit  CRI-85). 
1225 Servicio Fitosanitario del Estado del Ministerio de Agricultura y  Ganadería de Costa Rica, Unidad de 
Control de Residuos, Departamento de Operaciones Regionales, DOR -DOR-RN-081-2019; y Unidad de 
Biometría y Sistemas de Información Geográfica, "Mapa con la ubicación de muestreo de aguacate en 
traspatios, para determinar la presencia o ausencia del ASBVd, 2015 -2019", 28 de noviembre de 2019 
(Backyard sampling survey (2019)), (Exhibit CRI -87). 
1226 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, 
"Procedimiento de Vigilancia y Control de Plagas Reglamentadas",  OR-RN-PO-01, 12 de octubre 2018 
(Document OR -RN-PO-01 (2018)), (Exhibit CRI -88). WT/DS524/R  
- 192 - 
  establish the responsibilities and authorities of the main stakeholders in the SFE's quality 
control system.1227 
p. A document issued by the Unit for Planning, Quality Control and Inter nal Checks of 
the SFE, entitled " Procedimiento para el Control de Documentos y Registros " (Procedure 
for the control of documents and records), approved in November  2018, the stated 
purpose of which is to establish the requirements for the systematic and s tandardized 
preparation of documents of the SFE's quality control system, as well as defining the steps 
to be taken to ensure the proper identification, storage, protection, recovery, retention 
and disposal of quality records.1228 
7.519.   To have a better understand ing of the robustness of Costa Rica's determination of absence 
of ASBVd in its territory and, therefore, its scientific legitimacy, the Panel sought the opinion of 
experts regarding the scientific and methodological rigour of the ASBVd surveillance system in 
Costa  Rica on the basis of the information provided by the parties, and regarding whether this 
information could reasonably determine the status of ASBVd in Costa Rica.  
7.520.   As explained in section 1.3.3.4 above, after reviewing the experts' responses, the P anel 
considered that it was necessary to seek additional information from the parties on the surveillance 
system for ASBVd in Costa Rica, in order to make the necessary findings to resolve the dispute . 
In view of the foregoing, on 3 August  2020, the Panel sent the parties a request for additional 
information and supporting documentation on the surveillance system for ASBVd in Costa  Rica 
already in their possession . 
7.521.   On 14 September  2020, Costa Rica sent its response to the Panel's request for information 
on the ASBVd surveillance system in Costa Rica .1229 Mexico had indicated on 2 2 August  2020 that 
information on ASBVd surveillance in Costa Rica was exclusively in the hands of Costa Rica, and it 
would therefore not submit any additional information . On 28 Septe mber 2020, Mexico sent its 
comments on the information submitted by Costa Rica.  
7.522.   In addition, together with its responses to the Panel's questions following the Panel's second 
meeting with the parties, Costa Rica submitted the following exhibits, which the Panel considers to 
be relevant for its analysis:  
a. A document issued by the Pest Surveillance and Control Department of the SFE, entitled 
"Vigilancia y control de plagas Cuarentenarias Reglamentadas (PCR )" (Surveillance and 
control of regulated quarantin e pests), approved in August  2011, the stated objective of 
which is to implement surveillance and phytosanitary measures in a timely and effective 
manner, in the event of the detection of regulated quarantine pests of potential economic 
importance to domes tic agricultural production.1230 
b. A blank production establishments or sites location form issued by the SFE.1231 
 
1227 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, "Instructivo 
sobre las responsabilidades y autoridades r elacionadas con el Sistema de Gestión de la Calidad",  PCCI-GC-I-01, 
15 de marzo 2019 (Document PCCI -GC-I-01 (2019)), (Exhibit CRI -89). 
1228 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, 
"Procedimiento para el Control de Documentos y Registros", PCCI -GC-PO-01, 29 de noviembre 2018 
(Document PCCI -GC-PO-01 (2018)), (Exhibit CRI -90). 
1229 Costa Rica gave t he document in response to the Panel's request for additional information and 
supporting documentation of 3 August  2020 the title Informe de Costa Rica en respuesta a la solicitud de 
información y documentación soporte adicional del Grupo Especial en el ca so DS524 ante la OMC (Report by 
Costa Rica in response to the Panel's request for additional information and supporting documentation in 
DS524 before the WTO). Throughout the dispute, Costa Rica referred to this document as "Costa Rica's 
additional surveil lance report" or "Costa Rica's surveillance report".  
1230 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, 
Departamento de Vigilancia y Control de Plagas, "Vigilancia y control de plagas Cuarentenarias Reglamentadas 
(PCR)", VCP -VI-PO-02, 9 de agosto 2011 (Document VCP -VI-PO-02 (2011)), (Exhibit CRI -146). 
1231 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Boleta de 
ubicación de establecimientos o sitios de producción, OR -RN-F-03 (Form OR -RN-F-03), (Exhibit  CRI-147). WT/DS524/R  
- 193 - 
  c. A blank form for pest monitoring in production establishments or sites issued by the 
SFE.1232 
d. Completed production establishments or sites location f orms and completed forms for pest 
monitoring in production establishments or sites.1233 
e. Completed forms for the handling and transportation of samples for pest diagnostic tests 
and pesticide residue analysis.1234 
f. A document issued by the Pest Diagnostic Laboratory of the SFE, entitled " Aseguramiento 
de calidad de métodos de diagnóstico molecular " (Quality assurance of molecular 
diagnostic methods), approved in December  2016, the stated objective of which is to 
describe quality assurance practic es for monitoring the validity of the PCR assays of the 
Molecular Biology Laboratory.1235 
g. A document issued by the Central Pest Diagnostic Laboratory of the SFE, entitled " Prácticas 
generales de trabajo en el Laboratorio de Biología Molecular " (General work practices in 
the Molecular Biology Laboratory), approved in August  2015, the stated objective of which 
is to describe key elements of organization of work and general rules to be followed in the 
Molecular Biology Laboratory to reduce the risks of contamina tion and work -related 
accidents, and to maintain a harmonious and disciplined environment.1236 
h. A document issued by the Pest Diagnostic Laboratory of the SFE, entitled " Resuspensión 
de imprimadores/sondas y control general de alícuotas " (Resuspension of prim ers/probes 
and general control of aliquots), approved in February  2016, the stated objective of which 
is to describe the steps to be taken to resuspend (dissolve) and dilute primers and probes, 
as well as for the traceability of reagent working aliquots in  general.1237 
i. A draft SFE document, entitled " Instructivo de lavado de cristalería y utensilios de 
laboratorio " (Instructions for cleaning laboratory glassware and utensils), the stated 
objective of which is to establish the steps to follow to clean the diff erent laboratory 
utensils and glassware properly.1238 
7.523.   The Panel will analyse below the different aspects of the specific surveillance system for 
ASBVd in Costa Rica in order to determine  whether the basis for the determination of absence 
of ASBVd in Costa Ri ca has the necessary scientific rigour for that determination to be considered 
legitimately scientific according to the standards of the scientific community concerned.  
7.524.   The Panel notes that Reports ARP -002-2017 and ARP -006-2016 refer to recent sampling 
surveys that confirmed that the pest is absent in Costa Rica . Reports ARP -002-2017 and 
 
1232 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Boleta de 
seguimiento de plagas en establecimientos o sitios de producción, OR -RN-F-04 (Form OR -RN-F-04), 
(Exhibit  CRI-148). 
1233 Boletas de ubicación de establecimientos o sitios de producción y boletas de seguimiento de plagas 
en establecimientos o sitios de producción rellenadas (Completed forms OR -RN-F-03 and OR -RN-F-04), 
(Exhibit  CRI-149). 
1234 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Formularios 
para el manejo y transporte de muestras para diagnósticos de plagas y análisis de residuos de plaguicidas, OR -
RN-F-01, 2017 -2018 (Completed forms OR -RN-F-01 (2017 –2018)), (Exhibit CRI -150). 
1235 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Laboratorio 
de Diagnóstico de Plagas, "Aseguramiento de calidad de métodos de diagnóstico molecular", LAB -LDP-BM-PO-
09, 22 de diciembre 2016 (Document LAB -LDP-BM-PO-09 (2016)), (Exhibit CRI -152). 
1236 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Laboratorio 
Central de Diagnóstico de Plagas, "Prácticas generales de trabajo en el laboratorio de Biología Molecular", LAB -
LDP-BM-PO-02, 21 de agosto 2015 (Document LAB -LDP-BM-PO-02 (2015)), (Exhibit CRI -154). 
1237 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Laboratorio 
de Diagnóstico de Plagas, "Resuspensión de imprimadores/sondas y control  general de alícuotas", LAB -LDP-
BM-PO-07, 15 de febrero 2016 (Document LAB -LDP-BM-PO-07 (2016)), (Exhibit CRI -155). 
1238 Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, "Instructivo 
de lavado de cristalería y utensil ios de laboratorio", borrador, LDP -BM-I-07 (Draft  document  LDP-BM-I-07), 
(Exhibit CRI -156). WT/DS524/R  
- 194 - 
  ARP-006-2016, of July 2017, were preceded by the sampling surveys conducted in 2014 and 
2015-2016, so therefore these appear to be the sampling surveys referred  to in those reports.  
7.525.   The Panel recalls that the panel in US – Animals  noted that the Appellate Body had clarified 
that Article  2.2 and Article  5.1 must constantly be read together, including the obligation that 
measures not be maintained without sufficien t scientific evidence .1239 That panel also referred to the 
panel report in Japan – Apples , according to which, if the scientific evidence evolves, this may be an 
indication that the risk assessment should be reviewed or a new assessment undertaken .1240 Based 
on these observations, the panel in US – Animals  stated that "[t]he obligation to 'maintain' a measure 
based on scientific evidence has a continuing dimension".1241 
7.526.   The Panel will therefore consider both the information on the ASBVd sampling surveys of 
2014 a nd 2015 -2016, and the information on the sampling surveys of 2017 -2018 and 2019, and 
will make findings on the two groups of surveys.  
Sampling design and monitoring  
7.527.   As mentioned above, among the inconsistencies that Mexico  submits it found with regard 
to the 2014 and 2015 sampling surveys, with respect to section 2 of ISPM No. 6, Mexico asserts that 
Costa Rica conducted two sampling surveys without first having prepared a survey plan and, 
therefore, without such a plan having been approved by the NPPO.1242 
7.528.   Mexico adds that the experts stated that an appropriate surveillance plan should be 
established in order to understand the variations and specific circumstances of ASBVd, that absence 
of evidence is not evidence of absence, that one must always make every ef fort to be certain that 
this pest is not present, and that Costa Rica had yet to comply with this aspect.1243 
7.529.   In this respect, the expert Pablo Cortese explains that sampling surveys should be planned 
and designed in accordance with the objectives (i.e. to f ind or to try to detect whether this viroid or 
disease is present in a certain area) .1244 With regard to monitoring, Mr Cortese states that sampling 
should continue over time in order to ensure a well -designed monitoring plan with a reliable result, 
and that it is something that changes as time goes on.1245 
7.530.   In view of the remarks of Mr Cortese, it is the opinion of the Panel  that, for sampling results 
to be considered legitimately scientific, the sampling survey would have to be carefully designed and 
plann ed, bearing in mind the particular characteristics of the pest, the territory, the host, etc., and 
be accompanied by a maintenance plan to be implemented over time (i.e. a monitoring plan) . Only 
with proper design and planning, prior to conducting a sampli ng survey, is it possible for sampling 
to yield results that provide reliable information on the pest status in an area.  
7.531.   With specific regard to the design of Costa Rica's sampling survey and monitoring plan for 
ASBVd, Mr Cortese initially stated that with  the elements available he could not specify what the 
statistically valid design of the sampling survey was, or the number of samples to be taken as part 
of that survey.1246 
7.532.   In his responses to the Panel's additional questions, Mr Cortese continued to take the view 
that information on the design of the adopted sampling practice was missing, and that while there 
was a description of how the surveillance was carried out, no info rmation was provided , nor was it 
possible to infer relevant data , on the timing and design of the sampling surveys or the monitoring 
programme.1247 
 
1239 Panel  Report , US – Animals , para. 7.338 (citing Appellate Body Report, EC –Hormones , para. 180).  
1240 Panel  Report , US – Animals , para. 7.338 (citing Panel  Report , Japan – Apples , para. 7.12).  
1241 Panel  Report , US – Animals , para. 7.339.  
1242 Mexico's first written submission, para. 451, table 9.  
1243 Mexico's opening statement at the second meeting of the Panel, para. 38 (citing Pablo Cortese, 
transcript of the Pan el's meeting with the parties and the experts, day 4, pp. 60 -61). 
1244 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 20.  
1245 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 20.  
1246 Pablo Cortese's response to Panel question No.  180 for the experts.  
1247 Pablo Cortese's response s to additional Panel questions Nos. 2 and 3 for Pablo Cortese.  WT/DS524/R  
- 195 - 
  7.533.   The last time he participated in the dispute, at the Panel's meeting with the parties and the 
experts, and in light of the additional information provided by Costa Rica, Mr Cortese observe s that 
sampling surveys were conducted at certain times, but that these surveys do not necessarily 
constitute monitoring, because  they must be repeated or continued in some way.1248 
7.534.   Bearing in mind the opinion of Mr Cortese, the Panel notes that the record of the dispute 
contains insufficient information on Costa Rica's sampling surveys design and monitoring plan for 
ASBVd, and that it is not clear from the documentation submitted b y the parties how Costa Rica has 
designed these sampling surveys or how often it plans to repeat them.  
7.535.   As mentioned earlier, the sampling surveys that appear to have served as a basis for 
Costa  Rica's determination that ASBVd was absent from its territory when drafting its Reports 
ARP-002-2017 and ARP -006-2016 are those of 2014 and 2015 -2016. The two documents containing 
specific information on these sampling surveys are Exhibits MEX -641249 and MEX -65.1250 These 
exhibits mention that the respective sampling surveys were scheduled1251, and contain information 
on how the surveys were conducted, including information on sample selection, in the form of an 
account in the past tense, but do not identify or refer to any document or specific information 
preda ting the sampling surveys that concerns the design of the sampling survey or the monitoring 
plan. 
7.536.   Nor does the Panel see in the record any documents or specific information concerning the 
design of the sampling survey or the monitoring plan in the document s pertaining to the 2017 -2018 
sampling survey.  
7.537.   Regarding the 2019 sampling survey, Costa Rica submitted a document from 2019 that 
predates the sampling survey for that year . The document in question, entitled "Surveying for 
avocado sunblotch viroid (ASBVd)  in avocado crops . Costa Rica. 2019", is contained in 
Exhibit  CRI-83. The document briefly describes ASBVd and provides information on the selection of 
farms for the sampling survey . It states  that 130 producers were selected at the national level, for 
a total sampled area of 623.45 hectares, which accounted for 29.4 % of the total area planted with 
avocado crops1252, which, according to the document, was 2,120 hectares in 2018 .1253 According to 
the document, a total of 394 samples were to be collected .1254 The do cument indicates that there 
are some 580 avocado producers at the national level, and that 80 % of farms are located in the Los 
Santos area in the Eastern Central Valley region .1255 The document also contains the ASBVd survey 
schedule for 2019, indicating tha t sampling would take place between February and April 2019.1256 
7.538.   The Panel notes that this is the only document providing information on the design of 
Costa  Rica's sampling survey prior to the survey taking place, but it still does not indicate the 
presence of a monitoring plan.  
7.539.   In view of the foregoing, the Panel concludes that the lack of information and specific 
documentation on the design of the sampling survey and the monitoring plan, especially for the first 
two sampling surveys prior to Reports ARP -002-2017 and ARP -006-2016, is a problematic aspect of 
Costa  Rica's specific surveillance system for ASBVd that affects the reliability of the determination 
of absence of ASBVd in Costa Rica, and therefore the scientific legitimacy of this determination.  
Cover age of the sampling surveys and representativeness of the samples  
7.540.   Mexico  asserts that the sampling surveys conducted by Costa Rica are not representative 
and that they lack the technical rigour required by ISPM No. 6, because, for instance, in a first 
 
1248 Pablo Cortese, transcript of the Panel's meeting with the parties and t he experts, day 4, p. 20.  
1249 Sampling survey 2014, (Exhibit MEX -64). 
1250 Sampling survey 2015 -2016, (Exhibit MEX -65). 
1251 Sampling survey 2014, (Exhibit MEX -64), p. 3; Sampling survey 2015 -2016, (Exhibit MEX -65), p. 3.  
1252 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), p. 3.  
1253 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), p. 2.  
1254 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), p. 5.  
1255 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), p. 5.  
1256 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), p. 8.  WT/DS524/R  
- 196 - 
  sampling exercise, Costa Rica took 258 samples, that is, 0.07 % of a total of  366,502 trees1257 that 
are planted on average .1258 With regard to the 2015 and 2017 sampling surveys, Mexico notes that 
the same comments apply, as sampling accounted for 0.08 % in 2015, and 0.05 % in 2017 .1259 With 
respect to the 2019 sampling survey, Mexico sub mits that Costa Rica withdrew the invitation to 
Mexico's health authorities to observe the sample taking.1260 
7.541.   Mexico further asserts that none of the sampling surveys conducted cover the area identified 
by the PRAs (the entire territory) ; that discrepancies can be found regarding the number of samples 
collected, those required by the laboratories and those that were eventually analysed ; and that the 
number of samples taken in all of the years lack the statistical rigour required to be considered 
representativ e.1261 
7.542.   Turning to a specific sampling survey, Mexico submits that the document concerning the 
2014 survey shows that : (i) Costa Rica did not inspect the entire area planted with avocado in the 
country, but instead, of the 2,095 hectares reported to correspon d to the area planted with avocado 
crops for 2014, samples were taken in an area of 73 hectares, that is, 3.48 % of Costa  Rica's 
cultivated surface area ; (ii) Costa Rica did not inspect all the economic regions, but only four regions, 
discontinuing its insp ection of another two (Atlantic Huetar and Northern Huetar), and seven 
cantons, when Costa Rica has 82 cantons in total, and, nevertheless, states in its PRAs that the 
avocado tree is distributed throughout the country1262; (iii) the sampling survey does not contain 
any information indicating that backyard gardens were inspected ; and (iv)  the inspection is limited 
to looking for symptomatic trees in order to collect leaves, and eliminates the possibility of detecting 
asymptomatic trees, which can have a re duced yield and a stunted appearance .1263 Mexico adds that 
the initial estimate was for 198 samples to be collected, but that, without any justification, the UCR 
asked to analyse 264 samples . In Mexico's view, the report is incomplete because it does not inc lude 
the results and does not describe the frequency of samples from trees with the aforementioned 
symptoms.1264 
7.543.   Mexico submits that the document concerning the 2015 -2016 sampling survey shows that : 
(i) Costa Rica inspected only one economic region (Eastern Central) and 11.64 % of the 244 hectares 
planted in the country ; (ii) Costa Rica inspected an area with a very low yield of avocados per hectare 
(0.35) ; (iii) there is no information indicating that backyard gardens were inspected ; and (iv)  the 
inspection is limited to looking for symptomatic trees in order to collect leaves, and eliminates the 
possibility of trying to detect asymptomatic trees.1265 
7.544.   Mexico asserts that the above -mentioned document on the 2015 -2016 sampling survey 
refers to a schedu le for collecting 244 samples, but that in the end a total of 322 samples were 
collected, which were analysed, without any known justification, by two different laboratories : 
151 by the PCR laboratory of the SFE Directorate, and the remaining 171 samples b y the 
Molecular  Biology Laboratory of the UCR . Mexico notes that both laboratories used different detection 
methods, one the hybridization method and the other the RT -PCR method without sequencing .1266 
Mexico adds that, without any justification, unlike the first sampling survey in which samples were 
 
1257 Mexico submits that, in Exhibit MEX -64 on the 2014 sampling survey, Costa Rica states that its crop 
area for avocados is 2,059 hectares, and that in each hectare Costa Rica plants an average of 178 trees, which 
amounts to 366,502 t rees. (Mexico's comments on Costa Rica's response to Panel question No.  150, para . 2). 
1258 Mexico's opening statement at the first meeting of the Panel, para. 21 (citing Sampling survey 2014, 
(Exhibit MEX -64); and Los Santos Zone (2007), (Exhibit MEX -97)); second written submission, para. 178; 
comments on Costa Rica's response to Panel question No.  150, para. 1.  
1259 Mexico's opening statement at the first meeting of the Panel, para. 23 (citing Sampling 
survey  2015-2016, (Exhibit MEX -65); and Summary 2014 -2019 s ampling surveys , (Exhibit CRI -17)); second 
written submission, para. 178.  
1260 Mexico's opening statement at the first meeting of the Panel, para. 24.  
1261 Mexico's second written submission, para. 23.  
1262 Mexico's first written submission, paras.  443-444; second written submission, para. 24 (citing 
Sampling survey 2014, (Exhibit MEX -64)); comments on Costa Rica's response to Panel question No.  149, 
para. 2 (citing Mexico's first written submission, para . 444).  
1263 Mexico's first written submission, paras.  443-444; c omments on Costa Rica's response to Panel 
question No.  149, para. 2 (citing Mexico's first written submission, para . 444).  
1264 Mexico's second written submission, para. 24 (citing Sampling survey 2014, (Exhibit MEX -64)). 
1265 Mexico's first written submission, paras.  446-447 (referring to Sampling survey 2014, (Exhibit  MEX-
64)). 
1266 Mexico's second written submission, para. 25 (citing Sampling survey 2015 -2016,  
(Exhibit MEX -65)). WT/DS524/R  
- 197 - 
  obtained from various regions of Costa Rica, the second sampling survey focused solely on the 
Eastern region, despite the declaration on the phytosanitary status in respect of ASBVd being made 
for the entire terr itory of Costa Rica ; and that the sampling is concentrated in the farmed area, with 
no consideration given to trees growing in backyards or on uncultivated land or waste disposal 
sites.1267 
7.545.   Regarding the 2017 -2018 sampling survey, Mexico submits that samples  were taken only in 
the Eastern Central region ; that a total of 306 samples were collected, but only 245 samples were 
analysed ( January  2018), and the results from 61 samples were obtained separately 
(February  2018). In both cases, the samples were analyse d at the Pest Diagnostic Laboratory of the 
SFE's Molecular Biology Section, using the real -time RT -PCR technique.1268 
7.546.   With regard to the 2019 sampling survey, Mexico asserts that, according to the report on 
the surveillance to determin e the absence of ASBVd in avocado plantations in Costa  Rica, the survey 
involved taking 439 samples from the following areas : the Eastern Central region, the Chorotega 
region, the Western Central region, the Brunca region and the Central Pacific region1269; and that 
the samples we re analysed by the Phytosanitary Diagnostic Laboratory1270, but that the document 
"Surveying for avocado sunblotch viroid (ASBVd) in avocado crops" indicates a total of 396 samples 
to be collected from a planted area of 2,120 sown hectares.1271 
7.547.   Mexico submits that, while in Exhibit CRI -17 Costa Rica attempts to add ress the flaws in  the 
sampling surveys, the procedures that it carried out show a lack of methodological and scientific 
rigour, which results in inconsistencies regarding the territory considered for the sample -taking 
exercise, as well as in the initial de termination of the number of samples and those that were finally 
analysed.1272 
7.548.   In Mexico's view, it is questionable whether Costa Rica can declare ASBVd as absent in its 
entire territory on the basis of the analysis of 1,325 samples, when its territory has a n average of 
366,502 planted trees . Mexico states  that, assuming, arguendo , that each sample represents one 
tree, the four sampling surveys carried out by Costa Rica only covered 0.36 % of the trees in its 
territory.1273 
7.549.   Mexico submits that the Costa Rican su rveillance system is insufficient to justify and identify 
the rationality of the conclusions of its PRAs on which its measures are actually based .1274 Mexico 
asserts that the experts agreed that there is some inconsistency between the reasoning of 
Costa  Rica's SFE and the measures adopted, since if Costa Rica's objective is to be sure that it does 
not have ASBVd, then its level of surveillance should meet that objective .1275 Mexico adds that the 
expert Pablo Cortese did not find that Costa Rica adequately prior itized the risk throughout its 
surveillance system.1276 
7.550.   In Mexico's view, the experts confirmed that even with the additional information, ex post 
the adoption of the measures, the surveillance system had significant flaws, such as the selection of 
higher -risk sites and the monitoring of risk areas . Mexico states  that the experts also pointed out 
that an appropriate surveillance plan should be established to understand the variations and specific 
circumstances of ASBVd, that absence of evidence is not evidenc e of absence, and that one must 
 
1267 Mexico's second written submission, para. 26.  
1268 Mexico's second written submission, para. 27 (citing Summary 2014 -2019 sampling surveys , 
(Exhibit  CRI-17), p. 8).  
1269 Mexico's second written submission, para. 28 (citing Summary 2014 -2019 sampling surveys, 
(Exhibit  CRI-17), p. 9).  
1270 Mexico's second written submission, para. 28 (citing Final report on the 2019 sampling survey, 
(Exhibit  CRI-21)). 
1271 Mexico's second written submission, para. 28 (citing ASBVd surveys in Costa Rica (2019), 
(Exhibit  CRI-83), p. 5); comments on Costa Rica's response to Panel question No.  149, para. 3.  
1272 Mexico's second written submission, para. 29.  
1273 Mexico's second writte n submission, para. 30; comments on Costa Rica's response to Panel 
question  No. 149, para. 4.  
1274 Mexico's opening statement at the second meeting of the Panel, para. 36.  
1275 Mexico's opening statement at the second meeting of the Panel, para. 37.  
1276 Mexico's o pening statement at the second meeting of the Panel, para. 37 (citing Pablo Cortese, 
transcript of the Panel's meeting with the parties and the experts, day 2, p. 63).  WT/DS524/R  
- 198 - 
  always make every effort to be certain that this pest is not present, and Costa Rica had yet to comply 
with this aspect.1277 
7.551.   Mexico also submits that the expert Fernando Pliego Alfaro stated that Costa Rica should 
have conside red sampling in areas where Mexican and Guatemalan avocados are found, that is, 
colder areas, because this niche is where the disease can in fact appear . According to Mexico, the 
expert  added that, in order to know which sites are most at risk, one needs t o know exactly where 
Hass seed is being used, which is something Costa Rica should have documented, since it is the only 
thing that would allow for a proper risk assessment.1278 
7.552.   Costa Rica , for its part, notes that the zones subject to surveillance were selected according 
to the concentration of avocado production areas in the country, meaning that sampling took place 
in: the Eastern Central region (comprising the cantons of San Marcos, Dota, Tarrazú, Frailes de 
Desamparados and Corralil lo); the Western Central region (comprising the cantons of Heredia, 
Alajuela, Grecia, Naranjo, Atenas, Palmares and San Ramón) ; the Central Pacific region (comprising 
the cantons of Orotina, San Mateo and Esparza) ; the Chorotega region (comprising the cant ons of 
Abangares, Cañas, Bagaces, Liberia, Hojancha and Nandayure) ; and the Brunca region (comprising 
the cantons of Pérez Zeledón and Coto Brus).1279 
7.553.   Costa Rica asserts that it designed a sampling survey that would allow it to cover the largest 
number of avocado crops in its territory, which is why avocado production areas were selected in 
the different regions of the country, with special emphasis on the Los Santos region, where around 
80% of avocado production is concentrated.1280 
7.554.   Costa Rica submits that i ts surveillance covers all the areas where avocados grow, but 
prioritizes production zones, as in these zones there is a greater risk of introduction, establishment 
and spread of ASBVd in view of the diversion from intended use, and the practice of graftin g Hass 
on Hass, among other factors .1281 Costa Rica adds that the production zones include homogeneous 
plantations, as well as scattered crops, that the homogeneous plantations are usually linked to 
highland avocado production, particularly in the Los Santos  zone, which includes the cantons of San 
Marcos, Dota and León Cortés, and that scattered crops are more common in zones dedicated to the 
production of West Indian lowland avocados .1282 Costa Rica adds that it also takes samples from 
backyard trees, as well as from trees at the sides of highways and roads in the country's urban and 
rural areas.1283 
7.555.   Costa Rica states  that, without knowledge of the producers and the area planted with 
avocados, it would not have been possible to conduct the relevant sampling surve ys, and that it has 
a register of avocado producers, known as the SIVIFI, as well as estimates of the area planted with 
avocados.1284 
7.556.   Costa Rica notes that an example of the information contained in the SIVIFI, which is 
collected by means of location forms ( boletas de ubicación ), is that set forth in Exhibits  MEX-116 
and MEX -117, which include the name of the establishment, the type of establishment and the 
geographical location of the avocado producers (region, province, canton, district, latitude, 
longitude , etc.) . Costa Rica adds that the information collated in the SIVIFI concerns avocado 
production areas, and that, in line with the good practices described by Pablo Cortese, Costa  Rica 
prioritizes avocado production areas in its sampling surveys and also c arries out targeted sampling 
for backyard and wild trees.1285 
 
1277 Mexico's opening statement at the second meeting of the Panel, para. 38 (citing Pablo Cortese, 
transcript of the Panel's meeting with the parties and the experts, day 4, pp. 60 -61). 
1278 Mexico's opening statement at the second meeting of the Panel, para. 39 (citing 
Fernando  Pliego  Alfaro, transcript of the Panel's meeting with the parties and  the experts, day 2, p. 40).  
1279 Costa Rica's response to Panel question No.  27, para. 1.  
1280 Costa Rica's response to the Panel's information request of 3  August  2020, p. 16.  
1281 Costa Rica's response to Panel question No.  143, para. 119.  
1282 Costa Rica's respons e to Panel question No.  143, para. 120.  
1283 Costa Rica's response to Panel question No.  143, para. 121.  
1284 Costa Rica's response to Panel question No.  150, para. 139 (citing INEC, Crops (2015), 
(Exhibit  CRI-63); and Memorandum OR -BSG-004/2019 (2019), (Exhibit CRI -85)). 
1285 Costa Rica's response to Panel question No.  150, para. 140.  WT/DS524/R  
- 199 - 
  7.557.   The Panel  notes that Costa Rica states that the zones subject to surveillance for ASBVd 
were selected according to the concentration of avocado production areas in the country1286, and 
goes on to assert that in the 2014 sampling survey, sampling focused on the producing area because 
of the risk of the pest being introduced into Los Santos, and that subsequently, the coverage of each 
sampling survey was extended .1287 Costa Rica acknowledges that the sec ond sampling survey, like 
the first, was focused on the Los Santos region and its surrounding area.1288 
7.558.   While Costa Rica asserts that the third sampling survey took place in the Eastern  Central 
region, the Chorotega region, the Central Pacific region, the Ea stern Central Valley region and the 
Brunca region1289, the exhibits on the record contain samples only from the Eastern Central and 
Chorotega regions .1290 This is confirmed by the maps showing the sampling points submitted by 
Costa Rica in response to the Panel's information request.1291 
7.559.   Therefore, the scope of the first three sampling surveys was limited to the zone with the 
highest level of production . The aforementioned maps show that the 2019 sampling survey includes 
samples from more regions and therefor e has a wider scope.1292 
7.560.   With respect to Costa Rica's assertion that, in the 2014 sampling survey, sampling focused 
on the producing area because of the risk of ASBVd being introduced into Los Santos, the Panel 
notes that Costa Rica itself recognizes that it s concern is not limited to production sites . From its 
first written submission, Costa Rica has asserted that diversion from intended use is a practice 
common to both private individuals, who plant seeds in their yards, and farmers who do the same 
with the  seeds of consumed or discarded fruits .1293 Furthermore, Costa Rica notes that, while 
diversion from intended use is one of the risk factors for the introduction of ASBVd into Costa Rica, 
it is not the only one, and mentions the risk arising from seeds disca rded as waste.1294 
7.561.   In this respect, Reports ARP -002-2017 and ARP -006-2016 mention that the use of plants 
derived from stock -scion combinations is a practice recognized by the fruit industry1295; and that, in 
the case of Costa Rica, one of the cultivars used su ccessfully as a rootstock in the main 
avocado -producing area is the Hass .1296 Reports ARP -002-2017 and ARP -006-2016 add that the 
practice of using Hass rootstock increases the likelihood of using seeds from avocado imported for 
consumption .1297 The Panel notes  that Reports ARP -002-2017 and ARP -006-2016 refer to avocado 
producers when describing, in their introductory remarks, the risk arising from seeds of avocado 
fruit imported for consumption, which would be consistent with the sampling surveys' focus on 
producing areas.  
7.562.   However, Reports ARP -002-2017 and ARP -006-2016 also note that people who consume 
good-quality avocados and have space to cultivate this fruit are likely to plant the seed1298; and that 
not all the population has the purchasing power to buy Hass avocados, which are more expensive .1299 
In light of the foregoing, when describing, in their introductory remarks, the risk arising from seeds 
of avocado fruit imported for consumption, Reports ARP -002-2017 and ARP -006-2016 also refer to 
consumers of av ocado, who are not necessarily producers, and who plant avocado in their backyards.  
 
1286 Costa Rica's response to Panel question No.  27, para. 1.  
1287 Costa Rica, transcript of the Panel's meeting with the parties and the ex perts, day 4, p. 42.  
1288 Costa Rica's response to the Panel's information request of 3  August  2020, p. 20.  
1289 Costa Rica's response to the Panel's information request of 3  August  2020, p. 21.  
1290 Final report (1) on 2017 -2018 sampling survey, (Exhibit CRI -19); and Final report (2) on 2017 -2018 
sampling survey, (Exhibit CRI -20). 
1291 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 27 -28. 
1292 Costa Rica's response to the Panel's information request of 3  August  2020, p. 29.  
1293 Costa Rica's first written submission, para. 5.129.  
1294 Costa Rica's response to Panel question No.  90, para. 8.  
1295 ARP-002-2017, (Exhibit MEX -84), p. 6; ARP -006-2016, (Exhibit MEX -85), p. 6.  
1296 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing CONSULSANTOS (2010), (Exhibit MEX -119); and 
Garbanzo Solís (2010), (Exhibit MEX -125)); ARP -006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS 
(2010), (Exhibit MEX -119); and Garbanzo Solís (2010), (Exhibit MEX -125)). 
1297 ARP-002-2017, (Exhibit MEX -84), p. 6; ARP -006-2016, (Exhibit MEX -85), p. 6.  
1298 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2017), (Exhibit MEX -118)); 
ARP-006-2016, (Exhibit MEX -85), p. 7, (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1299 ARP-002-2017, (Exhibit MEX -84), p. 7; ARP -006-2016, (Exhibit MEX -85), p. 7.  WT/DS524/R  
- 200 - 
  7.563.   Reports ARP -002-2017 and ARP -006-2016 also mention that there are endemic avocado 
varieties in Costa Rica1300, which are both wild and cultivated ; that, unlike in other parts  of the world, 
a series of optimal climatic conditions for the germination of avocado seeds exist in Costa Rica ; that 
in Costa Rica these seeds do not need any special treatment or care to ensure their germination ; 
and that the seeds germinate without huma n assistance when they fall naturally or are discarded in 
gardens, in the countryside or in fields where avocado is cultivated .1301 Reports ARP -002-2017 and 
ARP-006-2016 add that the introduction of a viroid such as ASBVd reduces the possibility of using 
native varieties of avocado in genetic improvement programmes, leading to negative consequences 
for the avocado industry and biodiversity, as well as imposing constraints on  and increasing 
production costs for the export of avocado plants .1302 From the foregoin g it follows that Reports 
ARP-002-2017 and ARP -006-2016 also refer to the spontaneous germination of seeds, by describing 
the risk arising from the introduction of ASBVd by seeds of avocado fruit imported for consumption.  
7.564.   Furthermore, with regard to the pr obability of entry, and more specifically the probability of 
transfer to a suitable host, when considering probability related to the proximity of entry, transit 
and destination points to suitable host species, Reports ARP -002-2017 and ARP -006-2016 
determi ned that the host species ( Persea americana  Mill.) is found throughout the country, close to 
entry, transit and final destination points1303; that the West Indian races tend to grow naturally on 
the Pacific lowlands, from Guatemala to Costa Rica1304; that the avocado is native1305 to Costa Rica ; 
and that avocado, both wild and cultivated, is present in all regions of the country.1306 
7.565.   Both Costa Rica's arguments and Reports ARP -002-2017 and ARP -006-2016 themselves 
show that Costa Rica's concern regarding the introduction of ASBVd is not limited to production sites, 
but also extends to places where diversion from intended use by private individuals exists and places 
where spontaneous germination occurs, which includes places where wild and backyard trees grow 
in Costa Rican territory, and Costa Rica itself suggests that there is a risk of ASBVd being introduced 
in all regions of the country, by pointing out the presence of avocado trees across the whole of the 
country.  
7.566.   The s urveillance expert Pablo Cortese belie ves that it is not always necessary to sample the 
entire territory or cultivated area, since if the sampling survey and monitoring plan are well designed, 
they should be sufficiently representative .1307 Mr Cortese states that it is not necessary for a 
sampli ng survey to cover the entire population, nor is it necessary to monitor all cultivated areas or 
all areas, but instead priority should be given to areas where there is more likelihood of the disease 
being detected.1308 
7.567.   Mr Cortese notes that, as part of the implementation of a surveillance system for a pest 
where diversion from intended use may be a possible or routine practice, the focus or design of both 
specific surveillance (aimed at detecting the pest) and general surveillance (information from other 
sources) should take this fact into account, so as to obtain information and gain as great an 
understanding as possible of the situation, which will make it possible to adjust the implementation 
of the surveillance .1309 Mr Cortese explains that the surveillance  programme is risk -based, and if the 
risk is diversion from intended use, sites where diversion from intended use is most likely to occur 
should be selected.1310 
 
1300 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
1301 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1302 ARP-002-2017, (Exhibit MEX -84), p. 7; ARP -006-2016, (Exhibit M EX-85), pp. 7 -8. 
1303 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Garbanzo Solís (2011), (Exhibit MEX -125)); 
ARP-006-2016, (Exhibit MEX -85), p. 18 (citing Garbanzo Solís (2011), (Exhibit MEX -125)). 
1304 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Storey et al. (1986), (Exhibit CRI -135)). 
1305 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)); 
ARP-006-2016, (Exhibit MEX -85), p. 18 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
1306 ARP-002-2017, (Exhibit MEX -84), p. 37; ARP -006-2016, (Exhibit MEX -85), p. 18.  
1307 See Pablo Cortese's response to Panel question No.  81(a) for the experts.  
1308 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, 
pp. 37 and 39, and day 4, pp. 20 and 27.  
1309 Pablo Cortese's response to Panel question No.  172 for the experts.  
1310 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, p. 39.  WT/DS524/R  
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  7.568.   For his part , the expert Fernando Pliego Alfaro is of the view that sampling should be carried 
out in all edaphoclimatic zones where native or cultivated avocado is present .1311 Mr Pliego Alfaro 
states that Costa  Rica should know whether Hass seed is also used in the plains or lowest -lying areas 
where Costa  Rican indigenous varieties are grown . He adds  that, according to the PRA, it appears 
that Hass is grown at a certain altitude, and therefore if diversion from intended use occurs in respect 
of Hass on Hass, Costa Rica should ensure that this entire zone is very well sampled because, 
according to the expert, it is the niche where the disease can actually appear . Mr Pliego Alfaro asserts 
that in order to know which sites pose the greatest hazard, one needs to know exactly where Hass 
seed is being used, and that this should be well documented by Costa Ri ca, because it is the only 
thing that allows for a proper assessment of the hazard.1312 
7.569.   In light of the experts ' opinion s, the Panel considers that in order to make a reliable and 
legitimately scientific determination of the phytosanitary status in respect o f a pest in a territory, 
sampling surveys should be risk -based, prioritizing places where the disease is most likely to be 
detected.  
7.570.   The expert Pablo Cortese notes that, according to the information provided, all existing risk 
sites were not taken into acc ount.1313 He considers  that the main consequence of this is that there 
could be an incipient outbreak of this disease that would not be found .1314 Mr Cortese notes that 
only a few samples were examined in a few days, and those places were not selected, or it i s not 
clear what the criteria were for selecting those places, and, for him, some uncertainties remain.1315 
7.571.   Pablo Cortese explains that one must always make every effort to find evidence and be 
certain that this pest is not present.1316 Furthermore, Mr Cortese points out that reference is made 
to the entire production area, but when he sees the maps and reports, the same area is not covered 
every year, despite the fact that the maps are not very detailed. The expert adds that it is impos sible 
to see what is covered – whether it is the entire area in all years, or certain parts. It is also unclear 
to him whether sites are covered, and whether in that selection of sites the ones with the highest 
likelihood of occurrence or outbreak of the d isease were prioritized, because of the issue of diversion 
from intended use.1317 
7.572.   Considering  the comments made by the expert, in the Panel 's view,  in addition to the fact 
that there is no plan or other evidence supporting Costa  Rica's explanation that because of the risk 
of introduction it focused on the production zone , this explanation is not demonstrated  to be 
scientifically sound . The Panel does not consider that focusing on the production zone was sufficient 
to design a sampling survey that would ensure a representative sample that would be  able to reliably 
determine the status of ASBVd in Costa Rica in 2014 . This is because of Costa Rica's conce rns 
regarding diversion from intended use and spontaneous germination throughout its territory.  
7.573.   The Panel also recalls that, with respect to the probability of establishment and of spread 
after establishment, Reports ARP -002-2017 and ARP -006-2016 themselve s considered avocado to 
be a plant native to Mesoamerica1318; that the environment in the PRA area is favourable for 
ASBVd1319; and that host plants are found across  the PRA area.1320 
7.574.   If Costa Rica considered in its Reports ARP -002-2017 and ARP -006-2016 that the  risk of 
introduction and spread of ASBVd covered the entire PRA area, and referred in particular to diversion 
 
1311 Fernando Pliego Alfaro's response to Panel question No.  83 for the experts.  
1312 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 2, 
pp. 39-40. 
1313 Pablo Cortese's response to Panel question No.  81(b) for the experts.  
1314 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 52.  
1315 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, p. 39.  
1316 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 60.  
1317 Pablo Co rtese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 36.  
1318 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)); 
ARP-006-2016, (Exhibit MEX -85), p. 19.  
1319 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Holdridge (1982), (Exhibit CRI -122)). 
Report  ARP-002-2017 refers to Holdridge (1987), but the corresponding exhibit, submitted by Costa Rica, is 
dated 1982; ARP -006-2016, (Exhibit MEX -85), p. 19.  
1320 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing INEC, Crops (2015), (Exhibit CRI -63); and INEC, 
Agricultural statistical atlas (2015), (Exhibit CRI -64)); ARP -006-2016, (Exhibit MEX -85), p. 20 (citing INEC, 
Crops  (2015), (Exhibit CRI -63); and INEC, Agricultural stati stical atlas (2015), (Exhibit CRI -64)). WT/DS524/R  
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  from intended use and spontaneous germination, which poses a risk in backyards and waste disposal 
sites, it is deficient  that its surveillance to  determine the status of ASBVd in its territory was focused 
only on the avocado production zone.  
7.575.   The Panel is of the view that, to ensure the representativeness of the samples, Costa  Rica 
should, since 2014, have considered the characteristics of its avoca do populations (i.e. wild, 
backyard, farmed avocado trees) and prioritized areas where the risk of the emergence of ASBVd 
was highest . In response to the concern expressed by Costa Rica throughout this dispute and in its 
Reports ARP -002-2017 and ARP -006-2016 regarding diversion from intended use and spontaneous 
germination, this Panel takes the view that Costa Rica should have considered these aspects in its 
sampling surveys . Costa Rica should have estimated the prevalence of these events in its territory  
and located the places where they occur, such as waste disposal sites, backyards, and other places 
where diversion from intended use is most likely to occur, in particular, areas where Hass seed grows 
and is used.  
7.576.   The Panel notes that it is not apparent f rom the evidence submitted throughout the 
proceedings that Costa Rica has considered and prioritized the areas where the risk of the emergence 
of ASBVd is highest, and it is not clear that there is any criterion for selecting ASBVd sampling sites 
that take s into account sites at particular risk . However, it is apparent from the exhibits concerning 
Costa Rica's sampling surveys that Costa Rica's intention was to conduct its sampling solely at 
production sites, and primarily in the largest production zone.  
7.577.   The Panel finds no support in the record for Costa Rica's response following the Panel's 
second meeting with the parties, according to which its surveillance covers all areas where avocado 
is present, but prioritizes production zones, as it is in these zones  that there is a greater risk of the 
introduction, establishment and spread of ASBVd because of diversion from intended use, and the 
practice of Hass -on-Hass grafting, among other factors.1321 
7.578.   The Panel finds no evidence that Costa Rica had, in its first two  sampling surveys conducted 
prior to the drafting of Reports ARP -002-2017 and ARP -006-2016, adequately considered the 
characteristics of the avocado population in its territory and the relevant cultivation practices, and 
that it had prioritized the areas m ost at risk.  
7.579.   Moreover, the Panel considers that, by the time of its last sampling survey in 2019, 
Costa  Rica had still not designed a sampling survey taking into account these characteristics and 
practices, despite its assertion that samples were taken fro m backyard trees in the period 
2015-20191322, and that, throughout the surveillance exercise, sampling is conducted in backyards, 
in urban gardens and even on roadsides .1323 The Panel will address the taking of samples from 
backyards and wild trees later in it s analysis.  
7.580.   Furthermore, as mentioned above, the Panel considers ISPM No. 6 to be an illustrative tool 
for risk assessment inputs relating to the determination of the status of a pest in a territory . The 
Panel notes that ISPM No. 6 mentions the selection o f suitable survey sites, and that such sites may 
be determined by the : (i) previously reported presence and distribution of the pest ; (ii) biology of 
the pest ; (iii) distribution of host plants of the pest and especially of their areas of commercial 
produc tion; and (iv)  climatic suitability of sites for the pest .1324 According to the ISPM, for pests 
which are only likely to be present as a result of recent introduction, the selection of suitable survey 
sites may in addition relate, for example, to possible en try points , possible pathways of spread, sites 
where imported commodities are marketed, and sites where imported commodities are used as 
planting material.1325 
7.581.   For all of the above reasons, the Panel concludes that the sampling surveys ' coverage  centred 
on the main areas of production fails to properly assess the risk of other areas where there is a 
probability of the disease being detected . That is to say, Costa Rica's sampling surveys, which 
underpin the determination that its entire territory is free of ASBVd, are not sufficiently 
 
1321 Costa Rica's response to Panel question No.  143, para. 119.  
1322 Costa Rica's response to Panel question No.  28, para. 1; Costa Rica's response to the Panel's 
information request of 3  August  2020, p. 22.  
1323 Costa Rica,  transcript of the Panel's meeting with the parties and the experts, day 2, p. 42.  
1324 ISPM No.  6, (Exhibit MEX -75), p. 6.  
1325 ISPM No.  6, (Exhibit MEX -75), p. 6.  WT/DS524/R  
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  representative considering the risk, which affects the reliability of the determination of absence of 
ASBVd in Costa  Rica, and therefore the scientific legitimacy of this determination.  
7.582.   With respect to Mexico's questi oning  the number of samples taken during the four surveys, 
and, in particular, its assertion that it is questionable whether Costa Rica can declare its entire 
territory as free of ASBVd having analysed 1,325 samples or only 0.36 % of the trees present in it s 
territory1326, the Panel considers that the validity of these numbers will depend to a large extent on 
the statistical formula used by Costa Rica . The Panel will now address the statistical formula used 
by Costa Rica to determine the size of the samples fo r each sampling survey.  
The statistical formula  
7.583.   With regard to the randomness of the sampling and the representativeness of the sampling 
areas, Costa Rica  states that, as a first step, and before defining the sites where the specific surveys 
will take plac e, a statistical formula is used that gives the required sample size . According to 
Costa  Rica, the chosen formula is highly reliable as it yields a confidence level of 95 %.1327 
7.584.   Costa Rica provides additional explanations regarding its statistical formula in response to 
the Panel's request for information . Costa Rica asserts that its statistical model has two basic 
premises : every member of the population is equally likely to be chosen, and every sample of the 
same size is equally likely . Costa Rica states  that this model is used when the size of the population 
under consideration is known in advance .1328 Costa Rica presents the following formula that it says 
that it uses to determine the number of samples to be taken by area and by farm to ensure the 
representat iveness of the sampling exercise1329: 
a. Theoretical sample  
 
b. Real sample  
 
7.585.   Costa Rica submits that in this formula : N = population size, Z = level of confidence, p = 
probability of success or expected proportion, and q = probability of failure ; taking into account 
(i) standardized value of 1.96 (95 % confidence) ; (ii) an assumed sample error of 5 %; (iii) total 
number of e lements (depends on the area of the farm) ; (iv) a 95% probability that the population 
has the characteristics ; and (v)  a 5% probability that the population does not have the 
characteristics.1330 
7.586.   Costa Rica notes that the bibliography annexed to its response to the Panel's information 
request of 3 August  2020 is the literature on which its formula is based.1331 
7.587.   At the Panel's second meeting with the parties, Costa Rica gave a presentation, which is 
included in the record, that provides further explanations regar ding its statistical formula .1332 In that 
 
1326 Mexico's second written submission, para. 30; comments on Costa Rica's response to Panel question 
No. 149, para. 4.  
1327 Costa Rica's response to Panel question No.  27, para. 1(ii)(a).  
1328 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 16 -17. 
1329 Costa Rica's response to the Panel's information request of 3  August  2020, p. 17.  
1330 Costa Rica's response to the Panel's information request of 3  August  2020, p. 17.  
1331 Costa Rica's response to the Panel's information request of 3  August  2020, Annex 17.  
1332 Servicio Fitosanitario del Estado de Costa Rica (SFE), Unidad de biometría  y sistemas de 
información, Cálculo de muestras (2021) (SFE, Calculation of samples (2021)), (Exhibit CRI -151). 
WT/DS524/R  
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  presentation, Costa Rica includes a photograph of the formula identified above1333 and notes that 
the finite population formula is as follows1334: 
𝑛=(𝑍)2×𝑝×𝑞×𝑁
𝑒2×(𝑁−1)+𝑍2×𝑝×𝑞 
7.588.   Costa Rica notes that "n" is the size o f the sample ; "N" the population or universe, "Z" the 
level of confidence, "p" the probability for, "q" the probability against, and "e" the sampling error . 
Costa Rica adds that there are two constants in the formula : the number of individuals that share 
the variable sought (p), and the number of individuals that do not share this common variable (q), 
where p = 95 ; q = 5.1335 
7.589.   Costa Rica also notes that the formula used for sampling is commonly used to establish the 
size of samples that are representative in diverse populations .1336 Costa Rica asserts that its use 
meets the objective of ensuring the establishment of samples of representative sizes on the basis of 
certain premises given by the analyst, and that, in this case, it is used for the purpose of establishing 
the size of the samples for two different populations : the population of producers and the population 
of avocado trees.1337 
7.590.   For Costa Rica, the scientific soundness of the formula lies in the fact that it takes into 
account the univer se of the population of producers and the number of trees present on each of the 
farms . Costa Rica adds that more samples will always be collected on farms with a larger area and 
quantity of trees, in accordance with the equitable distribution of each of t he samples and farms 
which should be distributed by avocado production zone.1338 
7.591.   With regard to the selected farms, Costa Rica notes that the randomness of the samples is 
guaranteed through computational tools of easily verifiable reliability, in this case t he Excel 
application, which is widely used . Costa Rica refers to the methodological steps that it asserts are 
observed in order to guarantee this randomness : (i) the creation of a list of the total population 
(column A) ; (ii) the generation of random numbe rs for each of the elements (column B) ; (iii) the 
sorting of the randomly listed elements ; and (iv)  the selection of producers for the sample based on 
the appropriate size of the sample resulting from the application of the formula, and the sorting of 
producers based on the randomized second column.1339 
7.592.   Costa Rica submits that the formula invariably gives constant results because the same 
coefficient is always applied to the trees for sampling1340, and that it does not seem correct to assert 
that in places wher e there are more trees, fewer samples are taken .1341 According to Costa  Rica, the 
samples actually taken by production site reflect the number of samples resulting from the 
application of the respective coefficient on the number of total trees rounded up or down, depending 
on the decimal value obtained.1342 
7.593.   Costa Rica notes that its formula is commonly used to calculate samples in the agronomic, 
social, economic, and political spheres, and that it is a formula that allows the number of samples 
from a populat ion to be calculated very accurately.1343 
7.594.   Costa Rica submits that the formula has been applied since 2014 and that the same one has 
been used in all the sampling surveys conducted to detect ASBVd .1344 Costa Rica asserts that the 
formula presented by Mexico is exactly the same as that presented by Costa Rica ; that the difference 
is that Costa Rica presents a summary of its variables in mathematical terms, but that all the 
 
1333 SFE, Calculation of samples (2021), (Exhibit CRI -151), p. 7 (citing Calcular la Muestra Correcta, 
Feedback Networks, Navarra, Spain (2017)).  
1334 SFE, Calculation of samples (2021), (Exhibit CRI -151), p. 8.  
1335 SFE, Calculation of samples (2021), (Exhibit CRI -151), pp. 8-9. 
1336 Costa Rica's response to Panel question No.  140, para. 108.  
1337 Costa Rica's response to Panel question No.  140, para. 109.  
1338 Costa Rica's response to Panel question No.  140, para. 112.  
1339 Costa Rica's response to Panel question No.  140, para. 113.  
1340 Costa Rica's response to Panel question No.  141, para. 115.  
1341 Costa Rica's response to Panel question No.  141, para. 116.  
1342 Costa Ri ca's response to Panel question No.  141, para. 117.  
1343 Costa Rica's comments on Mexico's response to Panel question No.  145, para. 57.  
1344 Costa Rica's response to Panel question No.  142, para. 118.  WT/DS524/R  
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  variables considered in Mexico's formula are the same ; and that it is just a matter of the presentation 
or characterization of the formula in its presentation.1345 
7.595.   Costa Rica asserts that the area used has always been 2,095 sown hectares of avocado, 
according to information from the Executive Secretariat for Sectoral Agricultural Planning (SEPSA) 
of the MAG.1346 
7.596.   Costa Rica also mentions that in the formula for the years 2014, 2015 and 2016, 5 % was 
used as an index for disparate individuals in the population, but that, as differences between the 
avocado trees became apparent in terms of age, size or p runing or through the identification of 
undeveloped trees, the "q" coefficient was adjusted to a level of 50 %, the same as the "p" coefficient 
(50%). Costa Rica notes that this means that 50 % of the sampled individuals were considered to 
resemble the popul ation, while the other 50 % did not, on the basis of the aforementioned 
characteristics and verified during the field inspection.1347 
7.597.   Mexico  submits that, from a review of the literature cited by Costa Rica, it was not possible 
to identify that the formula cited by Costa Rica is used to calculate the sample size when the size of 
the population is known, and that this error may result in errone ous estimates of the sample size.1348 
7.598.   Mexico states that the statistical formula presented by Costa Rica is erroneous1349, and that, 
according to the literature consulted, in order to calculate the size of the sample when the number 
of individuals in a populat ion (in this case, avocado trees) is known, the following formula should be 
applied:  
 
7.599.   Mexico states that in this formula : Z = level of confidence (1.96 if confidence is 95 %), 
p = probability of success (in this case, 5 % = 0.05), q = probability of failure  (in this case, 0.95), 
d = precision, maximum permissible error in proportion (in this case, 5 %).1350, 1351 
7.600.   Mexico asserts that it is not clear how  the number of samples that should be analysed in the 
laboratory is determined using the formula referred to by C osta Rica, because one does not know 
the origin of the statistical formula used by Costa Rica in 2013 to calculate the sample size when the 
size of a population (number of avocado trees) throughout its territory is known1352, and because its 
sampling manuals  mention that this statistical formula was used to obtain the number of hectares 
to be sampled on each farm, without providing the number of trees per hectare.1353 
7.601.   Mexico also notes that, according to the 2021 FAOSTAT database, 3,180 hectares of 
avocados wer e harvested in Costa Rica in 2019, but that Costa Rica states that the area to be 
sampled, by canton, of the total area planted with avocado at the national level in 2019 is 
2,095  hectares, which means its sampling data no longer correspond to the surface area recorded 
in the year in question . Mexico adds that 1,085 hectares were left unsampled, which creates a bias 
in the results and therefore casts doubt on the true representativeness of the sampling scheme .1354 
 
1345 Costa Rica's comments on Mexico's response to Panel questi on No.  145, para. 58.  
1346 Costa Rica's comments on Mexico's response to Panel question No.  145, para. 59.  
1347 Costa Rica's comments on Mexico's response to Panel question No.  145, para. 60.  
1348 Mexico's comments on Costa Rica's response to the Panel's information request of 3  August  2020, 
para. 33. 
1349 Mexico's comments on Costa Rica's response to the Panel's information request of 3  August  2020, 
para. 33. 
1350 Mexico's response to Panel question No.  145, paras.  88 and 92; comments on Costa Rica's response 
to the Panel's information request of 3  August  2020, para. 33.  
1351 For its formula, Mexico refers to the article in Exhibit MEX -294. (Mexico's comments on Costa Rica's 
response to the Panel's information request of 3  August  2020, para. 33  (citing  S. Aguilar -Barojas "Fórmulas 
para el cálculo de la muestra en investigaciones de salud", Salud en Tabasco , Vol. 11, No.  1-2 (2005), (Exhibit  
MEX-294))). 
1352 Mexico's response to Panel question No.  145, para. 87.  
1353 Mexico's response to Panel question No.  145, para. 89. 
1354 Mexico's response to Panel question No.  145, para. 90.  
WT/DS524/R  
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  According to Mexico, Costa Rica refers to the  same surface area of 2,095 hectares for the sampling 
surveys conducted in 2014 and 2015 -2016, which raises again  the question of the 
representativeness of the sampling, given that, according to data obtained from FAOSTAT, there has 
been a logical and grad ual increase in the surface area planted with avocado since 2014.1355 
7.602.   Mexico further asserts that, in the ASBVd sampling manuals used in 2014, 2015 and  2016, 
the probability established for the population with the characteristics of a tree infected with ASBVd 
(designated as success and represented in the formula by the letter "p") had an assigned value 
of 95%, while the probability of the population that does not have these characteristics, i.e. trees 
not infected with ASBVd (known as failure and represen ted by the letter "q") had an assigned value 
of 5%. Mexico notes that these values do not coincide with those reported in the 2020 surveillance 
report, in which the values of success and failure for these parameters are 50 %, respectively . 
According to Mexi co, Costa Rica adjusted its statistical values in its report sent in 2020, without 
making the relevant clarification, meaning that the reliability and accuracy of its procedures are not 
well founded, but more importantly its surveillance system is not eith er.1356 
7.603.   Mexico considers that Costa Rica should have presented the calculations as they were used 
for each of the sampling surveys conducted, and not random examples applying the formula, 
because otherwise it cannot be demonstrated that the application of this formula is documented and 
validated by the SFE1357, and because it is not clear whether its calculations were based on the 
average number of trees per hectare or on the census conducted by Costa Rica .1358 Mexico notes 
that, for example, acc ording to the penultimate slide of Costa Rica's presentation, an average of 
250 trees per hectare continues to be used, but that increasing it may result in more trees than 
were recorded.1359 
7.604.   Mexico adds that in Exhibit CRI -149, according to the records, the re are farms where two 
samples were taken for eight hectares, others where a similar number of samples were taken for a 
larger number of hectares, but others where 20 samples were taken for one hectare . In Mexico's 
view, this does not tally with the assert ion that more samples were taken where there was a larger 
area.1360 
7.605.   Mexico is of the opinion that Costa Rica's assertion that it always uses the same coefficient 
(0.0008 in slide 16 or 0.167 in slide 19) is questionable when in its 2014 surveillance record 
(Exhibit  MEX-64) it appears that the coefficient 0.0346 was used.1361 
7.606.   Mexico further considers that Costa Rica should have presented the information it used to 
estimate its sample sizes per year, and not the platform that helps it to register its producers.1362 
7.607.   The Panel  notes that the formula identified by Costa Rica is included in its 2014 and 
2015-2016 sampling survey documents, as well as in the 2019 ASBVd survey document for avocado 
crops at national level.1363 
7.608.   The s urveillance expert Pablo Cortese points out  that he is not an expert statistician, and 
that the information submitted by Costa Rica to support the formula appears to him to be correct . 
Mr Cortese is, however, of the view that there are some aspects of the formula presented by 
Costa  Rica that are no t clear as regards the formulas normally used, and he believes that Mexico's 
response goes in the same direction .1364 
7.609.   The Panel notes that the formula described by Costa Rica in its presentation at the Panel's 
second meeting with the parties and the formula suggested by Mexico are essentially the same . The 
 
1355 Mexico's response to Panel question No.  145, para. 91.  
1356 Mexico's response to Panel question No.  145, para. 93.  
1357 Mexico's comments on Costa Rica's response to Panel question No.  140, para. 2.  
1358 Mexico's comments on Costa Rica's response to Panel question No.  141, para. 1.  
1359 Mexico's comments on Costa Rica's response to Panel question No.  141, para. 1.  
1360 Mexico's comments on Costa Rica's response to Panel question No.  141, para. 2.  
1361 Mexico's comments on Costa Rica's response to Panel question No.  141, para. 4.  
1362 Mexico's comments on Costa Rica's response to Panel question No.  150, para. 3.  
1363 Sampling survey 2014, (Exhibit MEX -64); Sampling survey 2015 -2016, (Exhibit MEX -65); and 
ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83). 
1364 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 12.  WT/DS524/R  
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  only difference is the terminology, since the "d" used by Mexico is equivalent to the "e" used by 
Costa Rica . The two expressions concerned are the following:  
𝒏=(𝑍)2×𝑝×𝑞×𝑁
𝑒2×(𝑁−1)+𝑍2×𝑝×𝑞 
 
7.610.   This formula is found in sources in the bibliography submitted by Costa Rica in its response 
to the Panel's request for additional information in the form of the real sample formula identified by 
Costa Rica  (i.e. n=n 0 / (1 + n 0/N))1365, or in the following f orm1366, 1367: 
 
7.611.   With regard to the value of "p", the sources in Costa Rica's bibliography also show that where 
the value of the estimate "p" is not obtained from previous studies, the condition is considered to 
be met by 50 % and therefore not met by the other  50% (1 – p), which ensures the largest sample 
size.1368 Costa Rica states  that, as differences between the avocado trees became apparent in terms 
of age, size or pruning, or through the identification of undeveloped trees, the "q" coefficient was 
adjusted t o a level of 50 %, the same as the "p" coefficient (50 %).1369 Costa Rica refers to this as 
sample heterogeneity .1370 It is not clear why the exhibits concerning the first sampling surveys of 
2014 and 2015 -2016 indicate that "p" is 95 %, but the Panel notes that the change to 50 % does not 
seem problematic per se , as it results in a larger sample size.  
7.612.   The Panel also notes that the formula presented by Costa Rica during the meeting is an 
expanded version of its previously submitted real sample formula in which n0 is replaced by [Z/e]2 
x p x q . The development of the formula would be as follows:  
𝑛=n0
1+n0/N=[Z/𝑒]2 x p x q
1+[Z/𝑒]2 x p x q/N= N x Z2 x p x q
𝑒2(N+[Z
𝑒]2
 x p x q)=N x Z2 x p x q
𝑒2N+𝑒2[𝑍
𝑒]2
 x p x q= N x Z2 x p x q
𝑒2N+Z2 x p x q 
7.613.   There is a diff erence between the version of Costa Rica's formula in the previous paragraph 
presented in the exhibits prior to the Panel's second meeting with the parties and the version of the 
formula described in the presentation give n at that meeting . This difference involves, in particular, 
the replacement of N with N – 1 in the formula's divisor, as follows:  
𝑛= Z2 x p x q x N
𝑒2N+Z2 x p x q 
 
1365 Miguel Gómez Barrantes, "La inferencia estadística", p. 512, accessed  30 November  2021, 
http://www.geocities.ws/estadistica/archivos/miguel12.pdf . 
1366 Universo formulas, Muestra estadística, accessed  30 November  2021, 
https://www.universoformulas.com/estadistica/descriptiva/muestra -estadistica . 
1367 The Panel notes that (1 -p) is equivalent to "q" and that the formula is therefore the same as the one 
indicated above.  
1368 Universo formulas, Muestra estadística, accessed  30 November  2021, 
https://www.universoformulas.com/estadistica/descriptiva/muestra -estadistica ; José Antonio Garcí a-García, 
Arturo Reding -Bernal, Juan Carlos López -Alvarenga, "Cálculo del tamaño de la muestra en investigación en 
educación médica", Investigación en Educación Médica, Vol. 2, No.  8 (2013), p. 222; and Carlos Eduardo 
Valdivieso Taborga y Oscar Valdivieso,  "Determinación del tamaño muestral mediante el uso de árboles de 
decisión", Investigación y Desarrollo , Vol. 1, No.  11 (2011), p. 63. (See Costa Rica's response to the Panel's 
information request of 3  August  2020, Annex 17).  
1369 Costa Rica's comments on Mex ico's response to Panel question No.  145, para. 60.  
1370 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 17 -18. 
WT/DS524/R  
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  𝑛=(𝑍)2×𝑝×𝑞×𝑁
𝑒2×(𝑁−1)+𝑍2×𝑝×𝑞 
7.614.   The Panel notes that Mexico did not question this specific point, and, in any case, it does not 
appear to the Panel that the replacement of √𝑁 with √𝑁−1  affects the size of the sample in any 
significant way, given the large size of the producer population and avocado population in Costa  Rica. 
As stated  in one of the sources cited i n the bibliography for Costa Rica's statistical formula, when 
the population is infinite or large, the correction factor N – 1 is very close to 1 and can be ignored.1371 
7.615.   It follows from the foregoing that the formula suggested by Mexico is essentially the sa me 
as that used by Costa Rica, and that the literature consulted identifies that formula as statistically 
valid for calculating the size of the sample.  
7.616.   Nevertheless, the Panel finds the data concerning the planted area that Costa  Rica uses in 
its calculati ons for the value of the size of the population to be problematic, as is outlined below.  
7.617.   Costa Rica has asserted that the area used has always been 2,095 sown hectares of avocado, 
according to information provided by SEPSA of the MAG.1372 
7.618.   According to the exhibits concerning the sampling surveys, in 2014, the area of 2,095 
hectares was used on the basis of the area in 2010, 2012 and 20131373; in the years 2015 -2016, 
the area of 2,095 hectares was also used on the basis of the area in 2010, 2012 and 20131374; and 
in 2019, the area of 2,120 hectares was used on the basis of the area in 2018 .1375 The exhibits do 
not include data on the estimates for the 2017 -2018 sampling survey . In its response to the Panel's 
information request, Costa Rica identifies the area of 2 ,095 hectares as the total area planted in 
2019.1376 
7.619.   The 2019 sampling survey, which identifies the area of 2,120 hectares as the sown area in 
2018, refers to SEPSA Agricultural Statistical Bulletin ( Boletín Estadístico Agropecuario ) No. 27.1377 
7.620.   Agricultural S tatistical Bulletin No. 27 of the chronological series 2013 -2016, available on 
the web page of the Costa Rican Agricultural Sector Information System, contains a table with 
information on the sown area for the main agricultural activities for these years . The table shows 
that 1,861 hectares were planted with avocado crops in 2013, 1,888 hectares in 2014, 
3,004  hectares in 2015, and 3,004 hectares in 2016, according to preliminary data .1378 SEPSA is 
identified as the source of the information in the table.  
7.621.   SEPSA Agricultural Statistical Bulletin No. 29 of the chronological series of 2015 -2018 reports 
that 3,004 hectares were planted with avocado in 2015 ; 3,092 hectares in 2016 ; 3,092 hectares in 
2017; and 3,000 hectares in 2018, according to preliminary data.1379 
7.622.   The Panel notes that these data correspond to the data reported by FAOSTAT on the 
harvested area for avocado in Costa Rica for the period 2014 -2018, to which Mexico refers when 
asserting that there is a discrepancy between the planted area used by Costa R ica in its formulas 
and the area reported for the respective year .1380 FAOSTAT reports the following harvested areas 
 
1371 Miguel Gómez Barrantes, "La inferencia estadística", p. 514, accessed  30 November  2021, 
http://www.geocities.ws/estadistica/archivos/miguel12.pdf . 
1372 Costa Rica's comments on Mexico's response to Panel question No.  145, para. 59.  
1373 Sampling survey 2014, (Exhibit MEX -64), p. 5.  
1374 Sampling survey 2015 -2016, (Exhibit MEX -65), p. 5.  
1375 ASBVd surveys in Costa Rica (2019), (Exhibit CRI -83), pp. 2 and 4.  
1376 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 19 -20. 
1377 ASBVd surveys in Costa Rica (2019), (Exhibit C RI-83), p. 2.  
1378 Sistema de Información del Sector Agropecuario Costarricense, Boletín Estadístico Agropecuario 
No. 27, Serie Cronológica 2013 -2016, Table 1, accessed  30 November  2021, 
http://www.infoagro.go.cr/BEA/BEA27 . 
1379 Sistema de Información del Sector Agropecuario Costarricense, Boletín Estadístico Agropecuario 
No. 29, Serie Cronológica 2015 -2018, p. 21, Table 1, accessed  30 November  2021, 
http://www.infoagro.go.cr/BEA/BEA29 . 
1380 Mexico's response to Panel question No.  145; México, Análisis cronológico del desarrollo tecnológico 
del sistema de producción de aguacate y algunos cultivos como café en Costa Rica, 20  de mayo  de 2020 
(Mexico, Avocado and coffee production in Costa Rica (2020)), (Exhibit MEX -286). WT/DS524/R  
- 209 - 
  for avocado in Costa Rica for the years 2013 -2019: 1,861 hectares (2013), 1,888 hectares (2014), 
3,004 hectares (2015), 3,092 hectares (2016) , 3,092 hectares (2017), 3,000 hectares (2018) and 
3,180 hectares (2019) .1381 According to FAOSTAT, this information comes from official data for the 
years 2014 -2018, and from information based on imputation methodology for 2019.1382 
7.623.   While Costa Rica submits t hat it uses data from SEPSA, the Panel notes that SEPSA itself 
reports data that differ from those used by Costa Rica in its sampling surveys according to the 
exhibits included in the record of the dispute . The Panel considers that using data on the plante d 
area that differ from reported official figures affects the result of the calculation and therefore the 
size or number of samples that should be taken according to that result in the sampling surveys.  
7.624.   For the 2014 sampling survey, according to Costa Rica, the area of 2,095 hectares was used 
on the basis of the area in 2010, 2012 and 2013, when the planted area in 2013, according to official 
data, was 1,861 hectares . For the 2015 -2016 sampling survey, it is indicated that 2,059 hectares 
were used for the calculation on the basis of the planted area in 2010, 2012 and 2013, although the 
planted area in 2013, according to official data, was 1,861 hectares, and 1,888 hectares in 2014 . In 
these two sampling surveys, through which Costa Rica was initiall y determined to be free of ASBVd, 
and which formed the basis for the risk assessment in Reports ARP -002-2017 and ARP -006-2016, 
the planted area used for the calculations was larger than that given by official figures, and results 
in a larger number of samp les. 
7.625.   Nevertheless, as regards the sampling surveys subsequent to the first two, the exhibits do 
not contain data on the estimates for the 2017 -2018 sampling survey, but Costa Rica has asserted 
that the area used has always been 2,095 sown hectares of avoca do, when, according to official 
data, the planted area in 2016 and 2017 was 3,092 hectares . With regard to the 2019 sampling 
survey, the planted area in 2018, according to official data, was 3,000 hectares, yet the figure of 
2,120 hectares was used for the  calculation . These figures amount, respectively, to around 68 % and 
71% of the planted area according to official data, which means that approximately 30 % of the 
planted area was not considered when determining the number of samples to be taken in 2017 -2018 
and 2019.  
7.626.   This Panel takes the view that, by using figures for the planted area that are lower than the 
official figures for that area, Costa Rica used a lower number of samples than should have been 
taken in the sampling surveys subsequent to those of 2 014 and 2015 -2016, which affects the 
reliability of the sampling results for those years.  
7.627.   For all of the above reasons, the Panel concludes that, although Costa Rica's formula is 
scientifically valid, Costa Rica uses data concerning the planted area that d iffer from those officially 
reported . As a result, in the sampling surveys subsequent to Reports ARP -002-2017 and 
ARP-006-2016, the planted area used for the calculations resulted in a lower number of samples, 
which affects the reliability of the determina tion of absence of ASBVd in Costa Rica in 2017 -2018 
and 2019, and therefore its scientific legitimacy.  
Surveillance protocols and sampling methodology  
7.628.   Mexico  asserts that neither of the PRAs refers to the protocol and the methodology used by 
Costa Rica to inspect and take samples of the trees analysed in order to confirm the absence of 
ASBVd in Costa Rica.1383 
7.629.   Mexico submits that the sampling was carried out on a small number of leaf samples, without 
taking into consideration that ASBVd is distributed unevenl y among the branches of the same tree, 
which means that, if only one flower panicle or some leaves from a single branch of a tree are taken, 
it is possible that ASBVd was not present in the tissue sampled.1384 
7.630.   According to Mexico , Costa Rica's sampling  surve ys not only lack scientific rigour and 
representativeness, but were also not designed to confirm the absence of ASBVd, as its criteria are 
 
1381 FAOSTAT, accessed  30 November  2021, http://www.fao.org/faostat . 
1382 FAOSTAT, accessed  30 November  2021, http://www.fao.org/faostat . 
1383 Mexico's first written submission, para. 441.  
1384 Mexico's first written submission, para. 448.  WT/DS524/R  
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  incomplete in light of the lack of analysis of avocado trees or plant material that may appear healthy, 
but that are potential carriers of ASBVd in its asymptomatic variant.1385 
7.631.   Mexico asserts that the methodology used in the sampling surveys was based solely on the 
analysis of symptomatic tissue characteristic of or similar to that associated with ASBVd .1386 Mexico 
notes that a tree infected with ASBVd can remain symptomless for an indefinite number of years1387, 
and that a correct methodology to assess the absence of ASBVd should have included the sampling 
of plant tissue not only from trees, fruits or leaves showing possible ASBVd -associated 
characteristics, but also from other tissues that appeared healthy, considering that the ASBVd 
concentrations in symptomatic tissues are highly variable compared with tissues of asymptomatic 
trees.1388 
7.632.   For Mexico, the sampling surve ys carried out in 2014, 2015, and 2016 lack a scientific 
methodology and statistical basis1389, and there is no specific document referring to the precise 
methodology used for the 2017 -2018 sampling survey.1390 
7.633.   At the Panel's first meeting with the parties, Me xico pointed out that Costa Rica never 
designed, let alone established, a specific surveillance protocol to detect the absence of ASBVd in its 
territory, and that , in 2019 , Costa Rica issued an alleged surveillance protocol, with which it actually 
intends to justify ex post  the non -existence of such a programme.1391 
7.634.   In its responses following the Panel's second meeting with the parties, Mexico asserts that 
its statement at the first meeting referred to the fact that Costa Rica did not have specific protocols 
that would provide certainty with respect to the determination of freedom from  ASBVd in its territory, 
and that it only had the protocols distributed when the sampling exercise was to be undertaken, as 
set out in Exhibits MEX -64 and MEX -65, which lack meth odological rigour . According to Mexico, this 
assertion is clearer in the Report on the s urveillance to determine the absence of ASBVd in avocado 
plantations in Costa Rica  (Exhibit CRI -17). Mexico asserts that this document was provided for the 
purpose of t his dispute and Mexico was unaware of it ; that in 2014 there was only one procedure 
for the implementation of the detection surveys, but without it being apparent that this procedure 
takes into account ISPM No. 8; that it cannot be verified that the person nel who took the samples 
had the necessary and sufficient skills to perform this activity ; and that the methodology that was 
followed regarding the traceability of samples or the farm selection criteria cannot be clearly 
identified.1392 
7.635.   With respect to the procedure for the surveillance and control of regulated pests  of 2011, 
Mexico points out that : it is a procedure for pests in general, not for ASBVd ; its submission with 
Costa Rica's responses to the Panel's questions following the Panel's second meeti ng with the parties 
contradicts Costa Rica's own statement in its surveillance report, where it notes that the specific 
procedures for ASBVd surveillance that were distributed to the officials responsible for that 
surveillance are set out in Exhibits MEX -64 and MEX -65; and it does not contain details of the official 
who prepared that document or specific data that would make it possible to identify that it had 
effectively been prepared and implemented since August  2011. Mexico submits that Costa Rica was 
either unaware of the existence of this document when submitting its additional surveillance report, 
or it is evidence that cannot be identified as having been produced in August  2011.1393 
7.636.   Costa Rica  notes that the sample collection methodology it has followed  in its ASBVd 
sampling surveys is established in the procedure for taking pest samples from plants in the field for 
 
1385 Mexico's second written submission, p ara. 41.  
1386 Mexico's second written submission, para. 37 (citing Sampling survey 2014, (Exhibit MEX -64), p. 7; 
Sampling survey 2015 -2016, (Exhibit MEX -65), p. 5; and Summary 2014 -2019 sampling surveys , 
(Exhibit  CRI-17), p. 5).  
1387 Mexico's second written submission, para. 37 (citing Ploetz  et al. (2011), (Exhibit MEX -56)). 
1388 Mexico's second written submission, para. 37 -38 (citing Declaración Jurada de Salvador Ochoa 
Ascencio, 23 de  enero de 2020 (Affidavit of Salvador Ochoa Ascencio (2020)), (Exhib it MEX -222)). 
1389 Mexico's comments on Costa Rica's response to Panel question No. 149, para. 1.  
1390 Mexico's second written submission, para. 27 (citing Summary 2014 -2019 sampling surveys , 
(Exhibit  CRI-17), p. 8).  
1391 Mexico's opening statement at the first mee ting of the Panel, paras.  21 and 23.  
1392 Mexico's comments on Costa Rica's response to Panel question No. 137, para. 1.  
1393 Mexico's comments on Costa Rica's response to Panel question No. 137, para. 5.  WT/DS524/R  
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  diagnostic purposes1394, and that to implement the surveillance procedures it has the procedure for 
the surveillance and control of regulated pests .1395 Costa Rica asserts that all officials responsible 
for the ASBVd sampling surveys received copies of these two documents.1396 
7.637.   Costa Rica also notes that the document setting out the procedure for taking pest samples 
from plants in the field for diagnostic purposes was supplemented by the document " Prospección  del 
Viroide Sun Blotch (ASBVd) en el cultivo de aguacate . Costa Rica. 2019 " (Surveying for avocado 
sunblotch viroid (ASBVd) in avocado crops . Costa Rica. 2019) .1397 
7.638.   In its response to the Panel's request for additional information and supporting 
documentation, Costa Rica asserts that the specific procedures for ASBVd surveillance that were 
distributed to the officials responsible for that surveillance are set out in Exhibits MEX -64 and 
MEX-65.1398 Costa Rica adds that these exhibits show the specific procedure used for the selection 
both of the sites to be sampled and the number of samples to be collected, and serves the purpose 
of instructing the officials responsible for sampling on the acti ons to be conducted in the field.1399 
7.639.   Costa Rica submits that the farm sampling methodology has always been the same, based 
on science and statistical technique, and, since these disciplines have remained constant, the 
methodology has also remained constant,  consequently Costa Rica applies the same statistical 
formula to all sampling surveys.1400 
7.640.   Costa Rica further notes that sample collection practices must be adapted to the 
circumstances, and that in the present case they require special care . Costa Rica indi cates that, as 
a starting point, the selected farms are sampled in their entirety ; that each row of avocado trees is 
sampled, with observation of all trees, from start to finish, and with special attention paid to those 
trees that could present ASBVd -like symptoms ; that the procedures for carrying out pest surveillance 
are published on the SFE website, which is accessible to the public ; that the process has been refined 
to mitigate risks that may suddenly arise at the time of sampling, and additional sampli ng is 
therefore carried out, where appropriate, in the interest of caution . Costa Rica notes that in the 2019 
sampling survey, the statistical formula determined that 396 samples should be collected, although 
the SFE went a step further and collected 439 s amples ; and that additional samples are also taken 
from wild and backyard trees, as can be observed in Exhibit CRI -87.1401 
7.641.   Costa Rica adds that neither the SPS  Agreement  nor the ISPMs require WTO Members to 
introduce pest -specific surveillance protocols, and  that, currently and since 2018, Costa  Rica has 
carried out its surveillance work on the basis of the procedure for the surveillance and control of 
regulated pests, submitted as Exhibit CRI -88 and Annex 7 of Costa Rica's additional surveillance 
report . Costa Rica asserts that, prior to 2018, it carried out its surveillance work on the basis of the 
procedure for the surveillance and control of regulated pests of 2011, submitted as 
Exhibit  CRI-146.1402 
7.642.   The Panel  considers that in order to carry out pest detecti on surveys in a reliable manner, 
protocols describing the sampling methodology, including procedures on taking, handling and testing 
samples should be available.  
7.643.   The Panel points to ISPM No. 6, indicating that the survey plan should include, inter alia , a 
description of survey methodology and quality management, including an explanation of : 
(i) sampling procedures (e.g. attractant trapping, whole plant sampling, visual inspection, sample 
 
1394 Costa Rica's response to Panel question No. 27, para. 1 (citing Document  OR-RN-PO-03 (2018), 
(Exhibit  CRI-82)). 
1395 Costa Rica's response to Panel question No. 30 (citing Document OR -RN-PO-01 (2018), 
(Exhibit  CRI-88)). 
1396 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 15 -16. 
1397 Costa Rica's response to Panel question No. 27 (citing ASBVd survey in Costa Rica (2019), 
(Exhibit  CRI-83)). 
1398 Costa Rica's response to the Panel's information request of 3  August  2020, p. 11.  
1399 Costa Rica's response to the Panel's information request o f 3 August  2020, p. 15.  
1400 Costa Rica's response to Panel question No. 149, para. 135.  
1401 Costa Rica's response to Panel question No. 149, para. 137.  
1402 Costa Rica's response to Panel question No. 137, para. 97.  WT/DS524/R  
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  collection and laboratory analysis) ; the procedure would be determined by the biology of pest and/or 
purpose of survey ; (ii) diagnostic procedures ; (iii) reporti ng procedures.1403,1404, 
7.644.   7.641 . As regards the specific surveillance protocols and the methodology contained therein, 
the parties refer to Exhibits MEX -64, MEX -65, CRI -17, CRI -82, CRI -88, and CRI -146. The Panel also 
considers Exhibit CRI -83 to be relevant .1405 The Panel will address these exhibits below.  
7.645.   With regard to the first two sampling surveys , the Panel notes that Exhibits Sampling survey 
2014 (MEX -64), Sampling survey 2015 -2016 (MEX -65) and " Surveillance and control of regulated 
quarantine pests" (CRI -146) are the only evidence submitted by Costa Rica on the methodology for 
the first two sampling surveys by means of which Costa Rica was initially determined to be free of 
ASBVd.  
7.646.   Exhibit MEX -64 is a document entitled " Muestreo del viroide manchado solar (ASBVd) 
(Sunblotch) en el cultivo de aguacate ( Persea amearicana ), a nivel nacional. 2014 " (Sampling survey 
of the sunblotch viroid (ASBVd) in the avocado ( Persea americana ) crop, at the national level. 2014) , 
which contains information regarding Costa Ric a's first sampling survey of 2014 . The document 
states that an ASBVd sampling survey was conducted, and contains brief information on its 
epidemiology .1406 The document further points out that the Regional Operations Department and the 
SFE Directorate schedu led a sampling survey in the various avocado production zones in  September 
and November  2014, and contains a section on the selection of farms for the sampling survey .1407 
The document indicates that the farms selected by region were visited, and those trees  in the 
plantation that presented symptoms similar to those reported in the literature were selected .1408 
On the last two pages, nine steps are included on the collection of and handling processes for 
sunblotch (viroid) samples in avocado ( Persea americana ).1409 
 
1403 ISPM No. 6, (Exhibit MEX -75), p. 6.  
1404 The Panel notes that the version of ISPM No. 6 adopted in 2018, not included by the parties in the 
record, includes more information on surveillance protocols, in particular in section 2 on designing surveillance 
programmes. This section mentions, inter al ia, that the methodology of surveillance should be described in 
surveillance protocols, and that surveillance protocols should provide clear instructions for carrying out a 
surveillance activity in a consistent manner that can be used by various operationa l personnel at different 
locations. (Secretaría de la CIPF, Vigilancia , NIMF No. 6 (Roma, FAO en nombre de la Secretaría de la CIPF, 
adoptada en 2018, publicada en 2019), accessed 30  November  2021, 
http://www.fao.org/3/w7991s/w7991s.pdf ). 
1405 The Panel will analyse the Exhibits containing the protocols relating to diagnostic tests 
(Exhibits  CRI-12, CRI -90, CRI -152, CRI -154, and CRI -155) later in its analysis.  
1406 Sampling survey 2014, (Exhibit MEX -64), pp. 2-3. 
1407 Sampling survey 2014, (Exhibit MEX -64), p. 3.  
1408 Sampling survey 2014, (Exhibit MEX -64), p. 7.  
1409 Sampling survey 2014, (Exhibit MEX -64), pp. 8 -9. The nine steps are as follows:  
1. As far as possible collect symptomatic tissue characteristic of or similar to that associated with 
avocado sunblotch viroid.  
Collect eight leaves per tree sampled. Two leaves per shoot can be collected at each of the four 
cardinal points.  
From this point onwards, the sample should be kept as fresh as possible, and should be 
prevented from dehydrating and oxidizing.  
2. Wrap the tissue in a slightly damp paper towel, ensuring that no additional water remains in 
the bag. Important: Do not wash or wet the sample.  
3. Package the material in a clean plastic bag, ideally with an airtight seal (e.g. Ziploc bags).  
4. Ensure that all air is removed from the airtight bag.  
5. Specify the identification of the sample on the bag using a permanent marker and on a slip of 
paper written in pencil inserted into the bag, and the respective seal, so that there is sample 
traceability.  
6. To keep the sample fresh. In a cool box, place pre -frozen refrigerant gels or ice, then place a 
layer of newspaper so that the ice or frozen gels are not in direct contact with the avocado 
samples. This is because freezing cold induces rapid oxidation in young avocado leaf tissue. 
Follow these recommendations when moving the sample from one location to another, for 
example, from the field to your workstation or to the laboratory.  
7. Disinfect  the tools used for sampling by soaking them in commercial bleach for at least one 
minute and then washing them with clean water before reuse. Note that chlorine is volatile and 
should not be exposed to the sun, as it degrades.  
8. Collect relevant sample d ata: code, date, location, crop or variety, person taking the samples.  WT/DS524/R  
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  7.647.   Exhibit MEX -65 is a document entitled " Muestreo del viroide manchado solar (ASBVd) 
(Sunblotch) en el cultivo de aguacate ( Persea americana ), Región Central Oriental. diciembre 2015 
y enero 2016 " (Sampling survey of the sunblotch viroid (ASBVd) in the av ocado ( Persea americana ) 
crop, Central Eastern Region . December  2015 and January  2016), which contains information 
relating to Costa Rica's second sampling survey of 2015 -2016. This document also states that a 
sampling survey was conducted on ASBVd, and co ntains brief information on its epidemiology .1410 
The document further notes that the Regional Operations Department and the SFE Directorate 
scheduled a sampling survey in the avocado production zone of the Central Eastern Region in 
December  2015 and January  2016, and contains a section on the selection of farms for the 
survey .1411 The document indicates that all farms in the Eastern Region were sampled, a total of 358 
farms, and that 322 samples were collected .1412 On the last two pages, the same nine steps are 
included on the collection and handling processes of sunblotch (viroid) samples in avocado 
(Persea  americana ) that are contained in the document, Sampling survey 2014.1413 
7.648.   The Panel notes that the nine steps for the collection of and handling processes for ASBVd 
samples provide some guidance on the procedure to apply in the ASBVd sampling surveys . Mexico 
itself acknowledges that Costa Rica has a methodology that is described in Exhibits  MEX-64 
(Sampling survey 2014) and MEX -65 (Sampling survey 2015-2016) .1414 However, these steps do 
not constitute a complete methodology , nor are they reflected in any document in the record that 
predates the sampling surveys of 2014 and 2015 -2016. These steps do not indicate, for example, 
which ASBVd symptoms shoul d be looked for, or what officials should do if such symptoms are not 
observed . In the Panel's view, the documents in Exhibits MEX -64 and MEX -65, which constitute the 
final reports of the 2014 and 2015 -2016 sampling surveys, cover some matters that should have 
been included in an ASBVd surveillance protocol . However, there is in the record no document from 
prior to the 2014 and 2015 -2016 sampling surveys that constitutes the protocol establishing the 
methodology to be applied to those sampling surveys.  
7.649.   Mexico questions the scientific rigour of Costa Rica's nine steps on the collection of and 
handling processes for ASBVd samples, but the only concrete argument it makes in this regard is 
that the methodology used in the sampling surveys was based solely on the  analysis of symptomatic 
tissue characteristic of or similar to that associated with the viroid .1415 The Panel will address the 
sampling of asymptomatic trees later in its analysis.  
7.650.   Exhibit CRI -146 contains a document entitled "Vigilancia y control de plagas  Cuarentenarias 
Reglamentadas (PCR) " (Surveillance and control of regulated quarantine pests), which is the 
document that Costa Rica claims to have used when carrying out its surveillance work prior to 
2018.1416 This document, approved on 9 August  2011, has been in force since that date and, as 
mentioned above, states that the objective of the procedure is to "[i]mplement surveillance and 
phytosanitary measures in a timely and effective manner, in the event of the detection of regulated 
quarantine pests of po tential economic importance to domestic agricultural production" .1417 
According to its scope, this process describes the activities, as well as the actors involved therein, 
from the beginning with the inspection or detection of a regulated quarantine pest, u ntil the final 
report is produced.1418 
7.651.   The Panel notes that this document describes the procedure for a sampling survey in 
10 steps from conducting an inspection or sampling survey of the growing area to the issuance of 
an emergency measure . The Panel observe s that this document is of a general nature with little 
detail, that it was submitted for the first time in Costa Rica's responses to the Panel questions 
 
9. Send the fresh sample to the laboratory on the same day it was taken or, failing this, the 
following day (the sample must be received by the laboratory no later than 48 hours after b eing 
taken). In the meantime, keep the sample refrigerated at 4 -8°C, but do not freeze.  
1410 Sampling survey 2015 -2016, (Exhibit MEX -65), pp. 2 -3. 
1411 Sampling survey 2015 -2016, (Exhibit MEX -65), p. 3.  
1412 Sampling survey 2015 -2016, (Exhibit MEX -65), p. 5.  
1413 Sampling survey 2015 -2016, (Exhibit MEX -65), pp. 6 -7. 
1414 Mexico's first written submission, para. 198 and fn  239. 
1415 Mexico's second written submission, para. 37 (citing Sampling survey 2014, (Exhibit MEX -64), p. 7; 
Sampling 2015 -2016, (Exhibit MEX -65), p. 5 ; and Summary 2014 -2019 sampling surveys , (Exhibit CRI -17), 
p. 5). 
1416 Costa Rica's response to Panel question No. 137, para. 97.  
1417 Document VCP -VI-PO-02 (2011), (Exhibit CRI -146). 
1418 Document VCP -VI-PO-02 (2011), (Exhibit CRI -146), p. 1.  WT/DS524/R  
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  following the Panel's second meeting with the parties, and that no reference is made to it in t he 
documents on the first three sampling surveys (including Exhibits MEX -64 and MEX -65), nor is there 
any indication in other documents in the record to confirm  its use.  
7.652.   With regard to the sampling surveys following the first two , referring to the procedur es 
contained in Exhibits MEX -64 and MEX -65, Costa Rica asserts that officials responsible for the ASBVd 
sampling surveys received copies of these documents .1419 However, the nine steps on the collection 
of and handling processes for sunblotch (viroid) sample s in avocado ( Persea americana ) contained 
in these documents do not appear in any document in the record relating to the 2017 -2018 and 
2019 sampling surveys, nor is reference made to them.  
7.653.   Costa Rica also asserts that SFE officials have the procedure for t he surveillance and control 
of regulated pests  and the procedure for taking pest samples from plants in the field for diagnostic 
purposes .1420 
7.654.   Exhibit CRI -82 contains the procedure for taking pest samples from plants in the field for 
diagnostic purposes, app roved in February  2018, that is in force since its approval, and the stated 
purpose of which is "[t]o establish the procedures to be followed when taking and preparing samples 
of plant products or arthropods in the field, to carry out phytosanitary analyse s for diagnostic 
purposes".1421 
7.655.   According to its scope, this procedure is applicable to all sampling activities for diagnostic 
and phytosanitary analysis purposes carried out by the Regional Operations Department on 
Costa  Rican plant products taken in the fi eld.1422 The document includes information on definitions, 
related documents, responsibility and authority, description of activities, points when checks are 
carried out, and record management . In the description of activities section, the document addresses 
survey planning, sampling survey implementation, materials and equipment, description of sampling 
activities, sampling steps to be followed, sample identification, sampling record, sample transport, 
sample storage and personal protective equipmen t to be used when the conditions warrant it.1423 
7.656.   The expert Pablo Cortese notes that this exhibit contains general procedures, not specific to 
ASBVd, and that it appears to have been produced with an emphasis on coffee pests.1424 
7.657.   In light of Mr Cortese's  remar ks, the Panel notes that this document refers to the sampling 
of plant products or arthropods1425, and only specifically mentions coffee under the point on sampling 
survey implementation in the description of activities section, but does not make any specifi c 
mention of avocado.1426 
7.658.   Exhibit CRI -88 contains the procedure for the surveillance and control of regulated pests, 
approved in October  2018, which has been in force since November  2018, and states as its purpose 
"[t]o implement mechanisms to monitor and co ntrol regulated pests that may cause damage to 
domestic agricultural production".  
7.659.   According to its scope, this procedure is to be applied by phytosanitary inspectors of the 
Regional Operations Department to domestic agricultural producers in the monitoring  and control of 
regulated quarantine and regulated non -quarantine pests .1427 The document contains the same 
sections as the document in Exhibit CRI -82, i.e. definitions, related documents, responsibility and 
authority, description of activities, points when checks are carried out and record management, as 
well as a section on track changes.  
 
1419 Costa Rica's respo nse to the Panel's information request of 3  August  2020, p. 15.  
1420 Costa Rica's response to the Panel's information request of 3  August  2020, p.  16 (referring to 
Annexes 7 and 8 of that response).  
1421 Document OR -RN-PO-03 (2018), (Exhibit CRI -82), p. 1. 
1422 Document OR -RN-PO-03 (2018), (Exhibit CRI -82), p. 1. 
1423 Document OR -RN-PO-03 (2018), (Exhibit CRI -82), pp. 3 -7. 
1424 See Pablo Cortese's response to Panel question No. 79 for the experts.  
1425 See, for example, Document OR -RN-PO-03 (2018), (Exhibit CRI -82), p. 4.  
1426 Document OR -RN-PO-03 (2018), (Exhibit CRI -82), pp. 3 -4. 
1427 Document OR -RN-PO-01 (2018), (Exhibit CRI -88), p. 1. WT/DS524/R  
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  7.660.   The expert Pablo Cortese notes that this procedure concerns general operational matters, 
and not those specific to ASBVd.1428 
7.661.   The Panel notes that this document is also of general application for regulated pests, and is 
not specific to ASBVd . This document does not mention the avocado, and the only crop specifically 
addressed is pineapple under the point on the integrated pineapple crop protection programme, in 
the descripti on of activities section .1429 
7.662.   As with the procedure for the surveillance and control of regulated quarantine pests1430 that 
Costa Rica asserts was applied prior to 2018, the procedures covering the various steps of a sampling 
survey subsequent to 2018, i.e. th e procedure for taking pest samples from plants in the field for 
diagnostic purposes (Exhibit CRI -82) and the procedure for the surveillance and control of regulated 
pests (Exhibit CRI -88), are not specific to ASBVd.  
7.663.   The Panel considers that th e procedure for taking pest samples from plants in the field for 
diagnostic purposes and the procedure for the surveillance and control of regulated pests could be 
suitable as a basis for establishing the methodology to be followed in a sampling survey. How ever, 
in this Panel's view, in the case of ASBVd a more specific procedure would also be required, since 
the particular characteristics of the pest to be detected (ASBVd , in this case) and those of the 
pathway (crop) of concern (avocado, in this case) must  be considered. The Panel is of the view that 
this would allow the ASBVd surveillance to be focused, and ensure  that the method is adjusted to 
the conditions and circumstances and provides a reliable result . The Panel also notes that th ese 
document s date f rom February  and October 2018,  respectively,  so they post -date the first three 
sampling surveys, including that of 2017 -2018, as that survey was concluded  in February  2018.  
7.664.   It is worth mentioning that, with respect to the description of the survey methodol ogy and 
the sampling procedure in particular, ISPM No.  61431 provides guidance, stating that the procedure 
would  be determined by the biology of pest or purpose of survey.  As regards pest surveys, said ISPM 
states that the selection of survey procedures may be determined by the type of sign or symptom 
by which the pest can be recognized, and by the accuracy or sensitivity of techniques used to test 
for the pest.1432, 1433 
7.665.   Although Costa Rica points out that neither the SPS  Agreement  nor the ISPMs require 
WTO Memb ers to introduce pest -specific surveillance protocols1434, the Panel considers that the lack 
of specific protocols for ASBVd reduces the scientific rigour of the sampling surveys by failing to take 
into account the particular requirements of ASBVd detection surveys.  
7.666.   Exhibit CRI -83 contains the document, " Surveying for avocado sunblotch viroid (ASBVd) in 
avocado crops . Costa Rica. 2019", which is a survey document from 2019, prepared prior to 
Costa  Rica's last ASBVd sampling survey in 2019 . This document, described above, provides specific 
information on the epidemiology of ASBVd and the selection of farms for the 2019 sampling survey.  
7.667.   The expert Pablo Cortese points out that the procedure set out in this exhibit is more 
complete and specific to A SBVd in particular and to different farms according to their surface area, 
but there is no mention of the criteria for selecting the farms to be sampled, whether this activity 
will be repeated, and how often . Mr Cortese notes that this document dates from 2019. It is therefore 
 
1428 See Pablo Cortese's response to additional Panel question No. 2 for Pablo Cortese.  
1429 Document OR -RN-PO-01 (2018), (Exhibit CRI -88), p. 6.  
1430 Document VCP -VI-PO-02 (2011), (Exhibit CRI -146). 
1431 The Panel recalls that ISPM No. 6 is an illustrative tool for determining what would be considered to 
be legitimately scientific in a risk assessment according to the standards of the scientific community in relation 
to the inputs of a risk assessment related to the determination of pest status in a territory.  
1432 ISPM No. 6, (Exhibit MEX -75), p. 6.  
1433 Revised ISPM No. 6 states that surveillance protocols should provide clear instructions for carrying 
out a surveillance activity in a consistent manner, and that surveillance managers and officers should be aware 
of current methodologies associated with specific groups of pests and should ensure that the meth ods are used 
appropriately to deliver reliable surveillance outcomes . (Secretaría de la CIPF, Vigilancia , NIMF No. 6 (Roma, 
FAO en nombre de la Secretaría de la CIPF, adoptada en 2018, publicada en 2019), accessed 8  January  2021, 
http://www.fao.org/3/w7991s/w7991s.pdf , p. 7).  
1434 Costa Rica's response to Panel question No. 137, para. 97.  WT/DS524/R  
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  not known, at least from the documentation that was available, what procedures were carried out 
in previous sampling surveys.1435 
7.668.   In the Panel's view, the document contained in Exhibit CRI -83 appears to represent an 
improvement in the p lanning of the sampling surveys, as it is specific to ASBVd surveillance, and to 
contain the procedures for determining the area to be sampled and the samples to be taken for the 
2019 survey, based on the indicated statistical formula, prior to carrying ou t the survey in that year . 
Similar information is included in Exhibits MEX -64 and MEX -65 for the 2014 and 2015 -2016 sampling 
surveys, but retrospectively . However, the document does not comprise by itself nor does it refer to 
the procedures for conducting the survey, including the collection and handling of samples, and 
procedures for their laboratory analysis . The Panel therefore considers that the procedures for 
ASBVd -specific surveillance in Costa Rica contained in Exhibit CRI -83 are not complete.  
7.669.   Exhibi t CRI-17, referred to by Mexico, contains a document entitled, "Informe de vigilancia 
para la determinación de la ausencia del ASBVd en las plantaciones de aguacate en Costa  Rica" 
(Report on the s urveillance to determine the absence of ASBVd in avocado plantations in Costa Rica),  
dated September  2019. This exhibit does not contain information on any surveillance protocol or 
methodology to be applied in a sampling survey.  
7.670.   In light of all the foregoing, the Panel finds that there are documents in t he record that 
contain some procedures relating to the methodology to be applied in the sampling surveys, but 
these do not constitute a complete methodology for ASBVd surveillance in Costa Rica : (i) Exhibits 
MEX-64 and MEX -65, which constitute the final re ports of the 2014 and 2015 -2016 sampling 
surveys, cover some points that should have been included in an ASBVd surveillance protocol, but 
there is in the record no document from prior to the sampling surveys that constitutes the protocol 
establishing the m ethodology to be applied to those sampling surveys ; (ii) in the record there is no 
procedure to be followed for the 2017 -2018 sampling survey ; (iii) there are some procedures to 
determine the area to be sampled and the samples to be taken in Exhibit CRI -83, which predates 
the 2019 sampling survey, but the record contains no other procedures to be followed for the 2019 
survey, including with respect to the collection and handling of samples ; and, (iv)  lastly, there are 
procedures covering the different steps  of a sampling survey, but these are not specific to ASBVd or 
to avocado trees.  
7.671.   The Panel therefore concludes that there is no evidence that a protocol existed with a 
complete and specific methodology for ASBVd sampling surveys that was followed in all the  surveys 
carried out to determine Costa Rica's ASBVd status . In the Panel's view, the lack of protocols 
containing a complete and specific methodology for ASBVd sampling surveys affects the reliability 
of the determination of freedom from  ASBVd in Costa Ri ca, and therefore its scientific legitimacy.  
Sampling of asymptomatic trees  
7.672.   Mexico  submits that, considering that there are asymptomatic trees, Costa Rica should also 
have contemplated sampling plant tissues that appeared healthy .1436 Mexico asserts  that 
Costa  Rica's sampling surveys were not designed to confirm the absence of ASBVd in its territory.1437 
7.673.   According to Mexico , inspection during Costa Rica's sampling surveys is limited to looking 
for symptomatic trees in order to collect leaves for analysis, el iminating the possibility of detecting 
symptomless trees, which can have a reduced yield and a stunted appearance.1438 
7.674.   Mexico submits that when collecting samples, Costa Rica focused on symptomatic tissue 
characteristic of or similar to that associated with ASBVd, which has a lower proportion of ASBVd . 
Mexico points out that Costa Rica failed to take samples from symptomless trees, despite the fact 
that the most stable and uniform titers of ASBVd can be recovered from virtually every sample taken 
from symptom less carrier trees . For Mexico, this situation demonstrates a clear lack of technical and 
 
1435 Pablo Cortese's response to Panel question No. 79  for the experts . 
1436 Mexico's second written submission, para. 37.  
1437 Mexico's second written submission, para. 41. See also Mexico's specific comments on the 
experts'  responses to Panel question No. 96 (d) for the experts.  
1438 Mexico's first written submission, paras.  444 and 447.  WT/DS524/R  
- 217 - 
  scientific rigour in carrying out the sampling surveys that led Costa Rica to declare its territory as 
free of ASBVd without a sound scientific basis.1439 
7.675.   Mexico adds that it is struck by the fact that Costa Rica has only analysed symptomatic tissue 
to consider its territory as free of ASBVd, but to import fresh avocados it requires proof that produce 
that appears symptomless is free of ASBVd . In Mexico's view, in order for Costa Rica to confirm the 
absence of ASBVd in its territory, and as a result of its concern about the symptomless variant of 
ASBVd, it should have ensured that this variant was not present in its territory.1440 
7.676.   Mexico asserts that Costa Rica failed  to provide evidence demonstrating that it took samples 
of asymptomatic plant material, as well as their results.1441 
7.677.   Mexico notes that the evidence provided by Costa Rica does not indicate whether the samples 
were taken at random or focused on those trees w here possible symptoms, such as deformed fruit 
with yellow and sunken areas, were physically observed .1442 Mexico adds that, for this reason, it 
insists that a further methodological error by Costa Rica was the failure to take follow -up samples 
from previous ly tested trees and areas.1443 
7.678.   Costa Rica  refers to what it submits as its sample collection methodology, contained in 
Exhibits MEX -64 and MEX -65, which states : "[a]s far as possible, collect symptomatic tissue 
characteristic of or similar to that associated  with avocado sunblotch viroid".1444 
7.679.   Costa Rica submits that, during the sampling surveys, SFE officials took samples of 
asymptomatic trees, and ensured that if a tree with typical ASBVd symptoms was present in the 
random sampling area that tree would not be  left unsampled . Costa Rica notes that the sampling 
survey methodology guideline s do not exclude symptomless trees, but emphasi zes, in addition to 
symptomless trees, the inclusion of symptomatic trees, which are more likely to test positive for 
ASBVd in a  country where the pest is found.1445 
7.680.   Costa Rica also notes that, given the asymptomatic nature of ASBVd, the SFE considers that 
visual inspection is not an appropriate method for determining the presence or absence of ASBVd in 
its territory.1446 
7.681.   Costa Rica as serts that it takes samples according to a random system, and that, being a 
random system, different areas are covered ; and that when surveillance officials arrive in these 
areas, they are instructed that, if they see a spot that might look like sunblotch,  they clearly go to 
those trees . Costa Rica adds that, if not, samples are simply taken from trees at the specific sites 
that the statistical formula has yielded, and that it is not factually correct to say that Costa Rica does 
not sample trees that could be symptomless.1447 
7.682.   The Panel  notes that the parties agree on the importance of sampling symptomless trees 
to determine the ASBVd status in a territory, which was also confirmed by the individual experts.1448 
7.683.   Costa Rica has repeatedly stated throughout its sub missions that it takes samples from 
symptomless trees . Furthermore, an undated document, prepared by the SFE of Costa  Rica, states 
that the sampling surveys consisted of a general tour of the avocado plantations, taking samples of 
 
1439 Mexico's opening statement at the first Pan el meeting, para. 22 (citing Sampling survey 2014, 
(Exhibit  MEX-64); Cambrón Crisantos (2011), (Exhibit CRI -10); and Singh et al. (2003), (Exhibit MEX -50)). 
1440 Mexico's second written submission, para. 40.  
1441 Mexico's comments on Costa Rica's response to the  Panel's information request of 3  August  2020, 
para. 34. 
1442 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 3.  
1443 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 4.  
1444 Costa Rica's specific comments on t he experts' responses to Panel questions Nos. 41 and 96 for the 
experts (citing Sampling survey 2014, (Exhibit MEX -64); and Sampling survey 2015 -2016, (Exhibit MEX -65)). 
1445 Costa Rica's specific comments on the experts' responses to Panel questions Nos. 41 and 96 for 
the experts.  
1446 Costa Rica's response to the Panel's information request of 3  August  2020, p. 21.  
1447 Costa Rica, transcript of the Panel's meeting with the parties and the experts, day 4, p. 17.  
1448 Responses  of Pablo Cortese, Ricardo Flores Peda uyé and Fernando Pliego Alfaro to Panel 
question  No. 41(b) for the experts.  WT/DS524/R  
- 218 - 
  trees that could present symptoms similar to sunblotch, as well as of randomly selected symptomless 
trees.1449 
7.684.   The Panel considers relevant expert Pablo Cortese's observation that a sampling survey 
design is established to arrive at the number of plants that the sample represents (f or example, 
random sampling, stratified design), and that there must be both symptomatic and symptomless 
plants in that number .1450 The expert Fernando Pliego Alfaro also comments that if sunblotch is 
effectively not present, a totally random sampling survey  is carried out.1451 
7.685.   The Panel cannot confirm whether samples of asymptomatic trees were taken based on 
Costa  Rica's assertions in this regard . However, considering the remarks of the experts, in th e 
Panel's view, the sampling of symptomless trees ultimately  depends on the statistical formula, which 
should ensure the random and representative nature of the sample . Thus, if Costa Rica's statistical 
formula is reliable, Costa Rica could have taken asymptomatic samples, even if the taking of 
asymptomatic samples  is not explicitly included in its procedures . The Panel also notes that in one 
of the completed monitoring forms submitted by Costa Rica as having been used in the 2019 
sampling survey, it is noted that samples were taken where no ASBVd symptoms were obse rved.1452 
7.686.   Meanwhile, the expert Fernando Pliego Alfaro notes that, as Mexico has pointed out, it would 
be very interesting, when surveying farmers, to monitor those trees that attract attention because 
their yield is low, but have no symptoms, because this h as been done in other places and is reflected 
in the bibliography . Mr Pliego Alfaro adds that it is important to sample such trees if they are 
detected, that it is a good practice for farmers, and that it should be taken into account in monitoring 
systems.1453 
7.687.   In light of Mr Pliego Alfaro's remarks, the Panel recalls that a reduced yield is a characteristic  
of symptomless infected trees . Costa Rica could therefore have made an effort to look for trees with 
decreased yield, which could be sampled to check whether they were asymptomatic carriers of 
ASBVd . The Panel does not have evidence that Costa Rica made such an effort, although this would 
not be particularly problematic to resolve the issue of sampling symptomless trees.  
7.688.   In conclusion, this matter ultim ately depends on the statistical formula, and given that the 
Panel found above that Costa Rica's statistical formula is scientifically valid, the Panel considers that 
Costa Rica could have taken samples from symptomless trees when applying that formula.  
Sampling in backyards and of wild trees  
7.689.   In its responses to the Panel's questions following the Panel's first meeting with the parties, 
Costa Rica  indicated that no wild trees had been sampled1454, and maintained that in addition to 
commercial plantations, b ackyard trees had been sampled in the years 2015 -2019.1455 
7.690.   In its response to the Panel's request for additional information and supporting 
documentation, Costa Rica added that wild trees would not be surveyed until 20201456, and reiterated 
that backyard trees  had been sampled.1457 
7.691.   Costa Rica asserts that, as indicated in Exhibits CRI -69 to CRI -73, it took samples from waste 
disposal sites and backyards .1458 At the Panel's meeting with the parties and the experts, Costa Rica 
 
1449 SFE, Application  of ISPM Nos. 6 and 8 by the SFE, (Exhibit MEX -114), p. 2.  
1450 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 46.  
1451 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 4, 
p. 46. 
1452 Completed forms, OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), p. 6.  
1453 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 4, 
p. 46. 
1454 Costa Rica's response to Panel question No. 28, para. 2.  
1455 Costa Rica's response to Panel question No. 28, para. 1.  
1456 Costa Rica's response to the Panel's information request of 3  August  2020, p. 16.  
1457 Costa Rica's response to the Panel's information request of 3  August  2020, p. 22.  
1458 Costa Rica's response to the Panel's information request of 3  August  2020, p. 22.  WT/DS524/R  
- 219 - 
  noted that, throughout its surveillance work, it carries out sampling surveys in backyards, in urban 
gardens, and even along roadsides.1459 
7.692.   In its responses to the Panel's questions following the Panel's second meeting with the 
parties, Costa Rica submits that additional samples are taken from wil d and backyard trees as 
attested by Exhibit CRI -87.1460 
7.693.   Costa Rica notes that the ISPMs do not contain a definition of wild trees, and that the 
additional surveillance report stated that sampling surveys of wild trees had not been carried out on 
the understa nding that such a term refers to trees found in national parks and nature reserves, but 
that if the term "wild trees" is understood as "plants that are not in backyards and that are not 
planted", that is to say, trees that germinate without human assistanc e, for example, alongside 
roads, the SFE has carried out and continues to carry out targeted sampling surveys of such trees.1461 
7.694.   Costa Rica asserts that it has estimates of the area planted with avocado, and that it has 
made additional efforts to expand its knowledge of the existence of wild and backyard trees . 
According to Costa Rica, backyard and wild populations are very difficult to estimate because of how 
scattered they are, and therefore Costa Rica conducts targeted sampling surveys for backyard and 
wild trees once avocado trees have been identified.1462 
7.695.   Mexico  questions whether Costa Rica sampled backyard trees in the period 2015 -2019, 
noting that Costa Rica fails to provide evidence of this or that the methodology used to take such 
samples is based on sc ience and technically correct.1463 
7.696.   Mexico argues that it appears from the information submitted that samples were only taken 
from commercial production sites, and that it does not appear that non -commercial sites, such as 
backyards and wild areas, were consi dered .1464 Mexico points out that this aspect should have been 
crucial from the first sampling survey, since Costa Rica places a high risk on the deviation of use 
due to  cultural practices and the spontaneous germination of avocado pits, situations that can occur 
particularly in urban areas and on uncultivated land.1465 
7.697.   Mexico asserts that Costa Rica failed to demonstrate with reliable evidence that it carried 
out sampling surveys in wild areas, backyards and waste disposal sites, a situation that affects the 
results of the sampling surveys, and is therefore part of the inconsistencies in Costa Rica's 
surveillance system.1466 
 
1459 Costa Rica, transcript of the Panel's meeting with the parties and the experts, day 2, p. 42.  
1460 Costa  Rica's response to Panel question No. 149, para. 137.  
1461 Costa Rica's response to Panel question No. 144, paras.  122-123 (referring to Servicio Fitosanitario 
del Estado del Ministerio de Agricultura y Ganadería de Costa Rica, Departamento de Operaciones Re gionales, 
Unidad Operativa Regional Huetar Norte, OR -HN-049-2019, 20 de noviembre de 2019 (OR -HN-049-2019 
(2019)), (Exhibit CRI -69); Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de 
Costa  Rica, Departamento de Operaciones Regi onales, Unidad Regional Brunca, OR -BR-FUN-0014-2019, 20 de 
noviembre de 2019 (OR -BR-FUN-0014-2019 (2019)), (Exhibit CRI -70); Servicio Fitosanitario del Estado del 
Ministerio de Agricultura y Ganadería de Costa Rica, Departamento de Operaciones Regionales, Región Central 
Sur, OR -CS-0003-2019, 21 de noviembre de 2019 (OR -CS-0003-2019 (2019)), (Exhibit CRI -71); Servicio 
Fitosanitario del Estado) del Ministerio de Agricultura y Ganadería de Costa Rica, Departamento de Operaciones 
Regionales, Operaciones Regiona les Pacífico Central, OR -PC-034-2019, 20 de noviembre de 2019 (OR -PC-034-
2019 (2019)), (Exhibit CRI -72); Servicio Fitosanitario del Estado del Ministerio de Agricultura y Ganadería de 
Costa Rica, Departamento de Operaciones Regionales, Unidad Operativa Cen tral Oriental, URCOR -CO-
154/2019, 20 de noviembre de 2019 (URCOR -CO-154/2019 (2019)), (Exhibit CRI -73); and Backyard sampling 
survey  (2019), (Exhibit CRI -87)); response to Panel question  No. 149, para.  138. 
1462 Costa Rica's response to Panel question No. 151, para. 141.  
1463 Mexico's comments on the experts' responses to Panel question No. 105 for the experts; comments 
on Costa Rica's response to the Panel's information request of 3  August  2020, para. 33.  
1464 Mexico, Analysis surveillance records (2020), (Exhib it MEX -289), p. 3. 
1465 Mexico's comments on Costa Rica's response to the Panel's information request of 3  August  2020, 
para. 6. 
1466 Mexico's comments on Costa Rica's response to Panel question No. 141, para. 3.  WT/DS524/R  
- 220 - 
  7.698.   Mexico points out that Costa Rica has failed to demonstrate that it took samples in a 
representative quantity and manner from avocado plants growing n aturally in forests where there is 
little or no human activity.1467 
7.699.   Mexico asserts that, while Costa Rica states that a sampling survey of roads and tracks in 
urban areas was carried out, from the information provided it is not certain whether the sampling 
surveys took wild plants into account, where wild is understood to mean plants that are not 
extensively cultivated, but collected in a traditional manner in jungles or forests .1468 According to 
Mexico, this means that trees growing in non -commercial areas, al ongside roads or in urban and 
rural areas were not considered.1469 
7.700.   Mexico submits that Costa Rica failed to demonstrate that sampling surveys were conducted 
outside the production areas, to which the SFE should have added, for example, forests or 
uncultivated land where there were not only Hass avocado trees, but also criollo avocado trees native 
to Costa Rica.1470 
7.701.   Mexico asserts that Costa Rica explicitly stated, in its responses to the Panel's questions 
following the Panel's first meeting with the parties, that the geographical selection of the sampling 
survey areas was carried out according to the concentration of avocado production areas, and that, 
to determine the randomness of the sampling and the representativeness of sampling areas, a 
statisti cal formula is used, considering that the purpose of detection surveys is to search for ASBVd 
symptomatology at production sites and in backyards . For Mexico, this means that at no point does 
it refer to roads and tracks in urban areas, and that only produ ction sites were considered, as they 
failed to demonstrate such sampling of backyard areas.1471 
7.702.   Mexico points out that, although the ISPMs do not exactly specify or define the concept of 
wild trees, consideration of these populations in the determination of a country's phytosanitary 
status requires that all the regions containing host species of the pest of concern, including wild and 
backyard trees, must be identified within an area.1472 
7.703.   Mexico further asserts that, as one of the aims of the IPPC is to protect  cultivated and wild 
plants by preventing the introduction and spread of pests, ISPM No. 6 states that specific surveillance 
should cover populations of individual host plants in an unmanaged or uncultivated area . Mexico 
notes that it does not appear from the information provided by Costa Rica that the sampling of wild 
trees, if indeed there was any, was representative of the number of trees in the territory of 
Costa  Rica; and that Exhibit CRI -87 does not pinpoint the moment at which the sample was taken, 
or provide certainty that the samples are indeed from wild trees . Mexico adds that Costa Rica has 
intentionally submitted information that does not provide certainty as to the traceability of the 
samples, and thus certainty as to the origin of the samples a nd their treatment.1473 
7.704.   In Mexico's view, nor are Exhibits CRI -69 to CRI -73 a clear indication that Costa Rica took 
samples of wild trees throughout its territory . Mexico notes that those Exhibits are dated after the 
PRAs were prepared ; and that they only re fer to instances where organic waste was present on 
farms, at waste disposal sites, in backyards or on roadsides, albeit in a non -proportional manner.1474 
7.705.   The Panel  sought the experts' views with regard to the sampling of backyard and wild trees.  
7.706.   In this connection, the expert Pablo Cortese is of the view that the surveillance system should 
cover all those areas where avocado is present (farmed, ornamental, in backyards or wild), as they 
are areas of even higher risk, given the greater possibility of informal introduction of material or 
 
1467 Mexico's comments on Costa Rica's response to P anel question  No. 149, para. 1 . 
1468 Mexico's comments on Costa Rica's response to Panel question No. 143, para. 1 (citing Maite 
Lascurain, Sergio Avendaño, Silvia del Amo y Aníbal Niembro, Guía de frutos silvestres comestibles en 
Verazcruz  (Fondo Sectorial p ara la Investigación, el Desarrollo y la Innovación Tecnológica Forestal, Conafor -
Conacyt, México, 2010) (Lascurain et al. (2010)), (Exhibit MEX -298)). 
1469 Mexico's comments on Costa Rica's response to Panel question No. 143, para. 1.  
1470 Mexico's comments on Costa Rica's response to Panel question No. 143, para. 2.  
1471 Mexico's comments on Costa Rica's response to Panel question No. 143, para. 3.  
1472 Mexico's comments on Costa Rica's response to Panel question No. 144, para. 1.  
1473 Mexico's comments on C osta Rica's response to Panel question No. 144, para. 2.  
1474 Mexico's comments on Costa Rica's response to Panel question No. 144, para. 3.  WT/DS524/R  
- 221 - 
  eventual spontaneous germination of pit/seed of discarded or used fruit for consumption .1475 
Mr Cortese states that all areas where avocado is present in Costa Rica should be sampled, including 
wild trees, and that inc luding wild trees in the sampling survey is important, considering the 
likelihood of spontaneous germination that Costa Rica indicates as possible.1476 
7.707.   The expert Robert Griffin notes that, understandably, detection of the pathogen in 
commercial production a reas is the highest priority, but, given the controls and monitoring of 
planting stock, the surveillance of backyard and wild hosts would seem to have increased 
importance .1477 Mr Griffin adds that the main flaw he sees in Costa Rica's survey design is the f ailure 
to take into account wild and backyard trees.1478 
7.708.   The expert Fernando Pliego Alfaro is of the view that it seems more logical to sample 
backyard trees in a first phase, as some might come from imported fruits, but that wild trees should 
also be sample d in the future, especially in areas close to commercial plantation sites.1479 
7.709.   For his part , the expert Ricardo Flores Pedauyé consider s that wild trees should have been 
sampled ; that ASBVd has been detected in nearly all countries where avocado is grown ; and that, 
even though Costa Rica could be effectively free due to its small size, a nearby country of similar 
size (Guatemala) is not.1480 
7.710.   The experts confirm the importance of Costa Rica sampling wild and backyard trees, a matter 
that was also addressed in pa ragraphs 7.557 to 7.5 82 above . In light of the experts' remarks, the 
Panel further considers that, in order to carry out sampling surveys of wild and backyard trees, a 
specific methodology for such sampling surveys should be in place . This is because these  trees have 
different characteristics to crop trees, and in consideration of the concerns expressed by Costa  Rica 
regarding deviation of use and spontaneous germination.  
7.711.   The Panel will address below whether Costa Rica sampled wild and backyard trees.  
7.712.   Regar ding the sampling of wild trees , the Panel notes that Costa Rica had first stated that it 
does not sample wild trees, and subsequently clarified that it had stated that sampling of wild trees 
had not been carried out on the understanding that such a term r efers to trees found in national 
parks and nature reserves, but that if the term "wild trees" is understood as "plants that are not in 
backyards and that are not planted", in other words, trees that germinate without human assistance, 
for example, alongsid e roads, the SFE has carried out and continues to carry out targeted sampling 
surveys of such trees.1481 
7.713.   In the Panel's view, despite Costa Rica's above -mentioned  clarifications, and its statements 
at the Panel's second meeting with the parties that it has been cautious and has taken samples of 
wild trees, there is no evidence in the record demonstrating that samples of wild trees have been 
taken, whether understood as those in national parks and nature reserves, or if they are understood 
as plants that are not in backyards and that are not planted . In addition, no document in the record 
demonstrates that there is a methodology to apply for sampling wild trees with respect to ASBVd.  
7.714.   With regard to backyard trees , the Panel notes Costa Rica's assertion tha t it sampled 
backyard trees in the period 2015 -2019, and submits as evidence in support of this assertion 
Exhibits  CRI-69 to CRI -73 and CRI -87. 
7.715.   Exhibits CRI -69 to CRI -73, which Costa Rica provides as evidence that it took samples from 
waste disposal sites and backyards and alongside roads, are the following reports:  
 
1475 Pablo Cortese's response to Panel question No. 79 for the experts.  
1476 Pablo Cortese's response to Panel question No. 105 for the experts.  
1477 Robert Griffin's response to Panel question No. 105 for the experts.  
1478 Robert Griffin's response to Panel question No. 180 for the experts.  
1479 Fernando Pliego Alfaro's response to Panel question No. 105 for the experts.  
1480 Ricardo Flor es Pedauyé's response to Panel question No. 105 for the experts.  
1481 Costa Rica's response to Panel question No. 144, paras.  122-123 (referring to OR -HN-049-2019 
(2019), (Exhibit CRI -69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); OR-CS-0003-2019 (2019), 
(Exhibit  CRI-71); OR-PC-034-2019 (2019), (Exhibit CRI -72); URCOR -CO-154/2019 (2019), (Exhibit CRI -73); 
and Backyard sampling survey (2019), (Exhibit CRI -87)); response to Panel question No. 149, para. 138.  WT/DS524/R  
- 222 - 
  a. Report by the Northern Huetar Regional Operational Unit, which contains information on 
a landfill site, and photographs allegedly relating to the spontaneous germination of waste 
avocado seeds alongside roads and waste used as compost in the Northern Huetar 
region.1482 
b. Report by the Brunca Regional Unit, which contains information on waste disposal sites, 
and photographs allegedly relating to the spontaneous germination of avocado seeds 
alongside roads and in backyards in the Brunca region.1483 
c. Report by the Central Southern Regional Operations Unit, which contains information on 
rubbish dumps, and photographs allegedly relating to the spontaneous germination of 
avocado seeds alongside roads an d in backyards in the Central Southern region.1484 
d. Report by the Regional Operations Department of the Central Pacific Region , which 
contains information on a waste disposal site, and photographs allegedly relating to the 
spontaneous germination of avocado s eeds alongside roads and in backyards in the Central 
Pacific region.1485 
e. Report by the Central Eastern Regional Unit , which contains information on waste disposal 
sites, and photographs allegedly relating to the spontaneous germination of avocado seeds 
in backyards in the Central Oriental region.1486 
7.716.   These reports contain images, testimonies and explanations relating to landfill sites, 
roadsides, waste disposal sites, rubbish dumps and backyards in the different regions of Costa  Rica, 
but do not contain any evi dence of sampling backyard trees.  
7.717.   The Panel notes that Costa Rica uses these Exhibits to support its assertion that if the waste 
matter  is discarded on wasteland and the necessary conditions of humidity and temperature exist, 
the seed can certainly germinate .1487 Therefore, such evidence would be relevant to Costa  Rica's 
argument regarding the spontaneous germination of avocados in its terr itory, which the Panel will 
address later in its analysis, but fails to establish that samples were taken in backyards.  
7.718.   In view of the foregoing, the Panel does not consider that these Exhibits demonstrate that 
Costa Rica took samples in backyards between 2015 and 2019.  
7.719.   It should be mentioned that these Exhibits do not constitute evidence of sampling from 
roadsides or waste disposal sites.  
7.720.   Costa Rica also provides a map in an effort to prove that it sampled backyard trees .1488 The 
exhibit containing this map is Exhibit CRI -87, dated 2 8 November  2019.1489 The exhibit also contains 
a list that, according to the document, corresponds to the list of backyard avocado trees sampled 
up to that date .1490 The map is reproduced below:  
 
1482 OR-HN-049-2019 (2019), (Exhibit CRI -69). 
1483 OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70). 
1484 OR-CS-0003-2019 (2019), (Exhibit CRI -71). 
1485 OR-PC-034-2019 (2019), (Exhibit CRI -72). 
1486 URCOR -CO-154/2019 (2019), (Exhibit CRI -73). 
1487 Costa Rica's response to Panel question No. 20, para. 3; second written submission, para. 3.38.  
1488 Costa Rica's response to Panel question No. 28, para. 1.  
1489 Backyard sampling survey (2019), (Exhibit CRI -87), p. 5.  
1490 Backyard sampling survey (2019), (Exhibit CRI -87), pp. 3-4. WT/DS524/R  
- 223 - 
   
7.721.   This document was produced after the four sampling surveys, including the last one in 
April 2019. The list only contains 63 entries , some of which refer to the same establishments, and 
no information exists on the criterion for selecting the backyards to be sampled or on the number 
of samples  to be taken from each backyard and in total . The document does not contain the 
laboratory results, and lacks information on how the traceability of samples was ensured.  
7.722.   Likewise, in analysing the information contained in Annex 9 of Costa Rica's response t o the 
Panel's additional information request of 3 August  2020, which, according to Costa Rica, contains 
the report on the results of its specific surveys from 2014 to 2019 , it is noted that there are 
establishments in Exhibit CRI -87, the SFE code1491 of which is not found in Annex 9 .1492 There are 
also inconsistencies between the number of samples  in Annex 9 and those  listed in Exhibit CRI -87, 
as some SFE codes are given more than once in Exhibit CRI -87, and only once in Annex 9 .1493 Among 
the SFE codes t hat are in Annex 9, there are some that correspond to samples from 20141494, when 
it is stated that Exhibit CRI -87 provides the backyard avocado sampling sites for the years 
2015-2019. Lastly, some of the missing codes were found in Exhibit MEX -116, entitled  "Registro de 
vigilancia de aguacate " (Avocado surveillance record) , which contains an Excel table of sample data 
from the avocado -specific surveillance of 2010 to 2016, but it does not mention ASBVd and does 
not contain any results.  
7.723.   In light of the review of the evidence submitted by Costa Rica, in th e Panel's view, there is 
no evidence in the record demonstrating that samples have been taken from backyard trees . 
In addition, no document in the record demonstrates that there is a methodology to apply for the 
sampling of backyard trees.  
7.724.   In view of the foregoing, the Panel finds that Costa Rica has failed to demonstrate that it has 
carried out the sampling of wild and backyard trees that it claims to have carried out, and that 
Costa  Rica does not have a methodology to be applied for the sampling of wild and backyard trees . 
This is particularly relevant given the concerns expressed by Costa Rica about the deviation of use 
and spontaneous germination . The Panel considers that this failu re to include and systematize the 
sampling of wild and backyard trees within the ASBVd surveillance system in Costa Rica constitutes 
a sampling error by Costa Rica that affects the representativeness of the samples, which in turn 
affects the reliability of  the determination of freedom from  ASBVd in Costa Rica, and therefore its 
scientific legitimacy.  
 
1491 In relation to Exhibit CRI -87, the Panel h as referred to the SFE code, as the exhibit does not include 
sample identifying information, such as the seal number . 
1492 See codes 14026, 14098, 14370, 4586, 14911, 14917, 13560, 4585, 14858, 3959, 15674, 10486, 
12363, 16432, 15674, 16872, 18021, 18022, 17043, 15674, 8421, 15527, 10503, 7778, 18430, 15675, 
15678, 15527. The Panel notes that some of these codes appear more th an once in the list. (Backyard 
sampling survey (2019), (Exhibit CRI -87)). 
1493 See codes 11666, 15527. (Backyard sampling survey (2019), (Exhibit CRI -87)). 
1494 See codes 11495, 11666, which appear more than once in the list. (Backyard sampling survey 
(2019), (Exhibit CRI -87)). 
WT/DS524/R  
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  ASBVd surveillance in nurseries  
7.725.   Costa Rica  points out that it has the  national propagati ve plant material programme, which 
falls under the purview of the SFE's  Regional Operations Department and was established by Decree 
No. 33927 -MAG.1495 Costa Rica states that, under the programme, any nursery engaging in the 
production and marketing of propagati on material for both avocados and other crops must be 
registered .1496 Costa Rica also states that, as part of the already established procedure, all nurseries 
are subject to regular monitoring and surveillance, in order to verify the phytosanitary status of the 
propagative plant material that leaves the nursery, and that th ese checks are carried out by the 
SFE's regional officials every two months.1497 
7.726.   Costa Rica points out that, pursuant to Article  22 of the Law on Phytosanitary Protection 
No. 7664 and its Regulation No. 26921, prior to the establishment of a nursery, a sampl ing survey 
is carried out of the trees from which the buds for grafting are to be obtained, in order to verify the 
phytosanitary status of that material and mitigate the risk of the presence of pests that could 
endanger the country's plant patrimony.1498 
7.727.   Mexico, on the other hand, argues that, despite the brief explanation advanced by 
Costa  Rica regarding the manner in which it conducts ASBVd surveillance in its nurseries, Costa  Rica 
failed to provide any evidence substantiating the records of all the nurseries in Costa Rica, the checks 
carried out in each of the nurseries, the results of the checks, and the results of the phytosanitary 
status check of each tree from which it is planned to obtain buds for grafting .1499 Mexico adds that, 
despite the forego ing, it wishes to recall that the pathway covered by the PRAs is the importation of 
fresh avocado fruit for human consumption from Mexico, without prejudice to the fact that the 
deviation of use of avocado pits is supposedly Costa Rica's main concern . Mexico asserts that, in any 
event, there is no evidence as to how Costa Rica prevents this situation in nurseries prior to grafting 
from a pit from fresh avocado fruit for human consumption from Mexico.1500 
7.728.   The Panel  notes the comment by the expert Fernando Plie go Alfaro that Costa Rica should 
carry out annual monitoring sampling surveys essentially covering the Hass avocado production 
area, that it should focus on more intensive sampling in young plantations where Hass seed is more 
likely to have been used as ro otstock and, above all, in nurseries that produce plants for new 
plantations .1501 The Panel will address below the matter of whether evidence has been submitted 
regarding ASBVd surveillance in nurseries in Costa Rica.  
7.729.   Costa Rica states that, as part of the e stablished procedure, all nurseries are subject to 
regular monitoring and surveillance, in order to verify the phytosanitary status of the propagative 
plant material that leaves the nursery.  
7.730.   The Panel notes that Costa Rica shared Exhibit MEX -117 with Mexic o, referred to as the 
nursery surveillance record .1502 However, this document is an Excel table containing information on 
eight nurseries, from surveys from 2011 to 2015, and does not mention that it refers to ASBVd 
surveillance.  
7.731.   The Panel also finds the wor d "nursery" in the establishment name in some of the entries in 
Annex 9 provided by Costa Rica together with the response to the Panel's additional information 
request, which, according to Costa Rica, contains the report on the results of its specific surv eys 
from 2014 to 2019 . However, the Panel does not consider such information from the specific surveys 
as sufficient to support Costa Rica's assertion regarding regular monitoring and surveillance in 
nurseries.  
 
1495 Costa Rica's response to Panel question No. 152, para. 142 (referring to Nursery Regulations 
(2007) , (Exhibit CRI -30)). 
1496 Costa Rica's response to Panel question No. 152, para. 142.  
1497 Costa Rica's response to Panel question No. 152, para . 143.  
1498 Costa Rica's response to Panel question No. 152, para. 144.  
1499 Mexico's comments on Costa Rica's response to Panel question No. 152, para. 1.  
1500 Mexico's comments on Costa Rica's response to Panel question No. 152, para. 2.  
1501 Fernando Pliego Alfaro' s response to Panel question No. 180 for the experts.  
1502 Nursery surveillance records, (Exhibit MEX -117). WT/DS524/R  
- 225 - 
  7.732.   The Panel cannot confirm from the information  in the record  that, with regard to ASBVd, 
Costa Rica carries out the regular surveillance in nurseries that it claims to carry out . In this Panel's 
view, the lack of surveillance in nurseries would be another sampling error by Costa Rica that affects 
the representativeness of the samples, which in turn affects the reliability of the determination of 
freedom from  ASBVd in Costa Rica, and therefore its scientific legitimacy.  
Surveillance of ASBVd at waste disposal  sites  
7.733.   With regard to whether Costa Rica has a method for carrying out ASBVd surveillance at 
waste disposal sites, including major tourist spots and cruise ship waste disposal areas, Costa Rica  
points out that, pursuant to Decree No. 26921 -MAG1503, the SFE, through  the Phytosanitary Control 
Department, has all the technical and legal support to manage everything related to the 
management of waste products from tourism, including cruise ships.1504 
7.734.   For its part , Mexico  asserts that Costa Rica has failed to submit any ev idence demonstrating 
the use of a method for carrying out ASBVd surveillance at waste disposal sites, or the manner in 
which Decree No. 26921 -MAG1505 is applied, which, according to Mexico, does not detail or describe 
the method for carrying out surveillance  at such sites .1506 Mexico also asserts that, in its response 
to the Panel's request for additional information and supporting documentation, Costa Rica never 
referred to the methodology used for waste disposal sites, including tourist spots and cruise ship 
waste disposal areas, nor did it demonstrate or give examples of the manner in which such 
surveillance was carried out.1507 
7.735.   Mexico submits that the foregoing clearly shows that, despite the fact that Costa Rica refers 
to having a surveillance mechanism for waste disposal sites, this is not implemented, as it has not 
demonstrated with evidence the results of such surveillance, a  situation which again demonstrates 
the inadequacy of its surveillance system and, therefore, again casts doubt on its alleged ASBVd -free 
status.1508 
7.736.   The Panel  notes that, with respect to whether Costa Rica has a method for carrying out 
ASBVd surveillance at  waste disposal sites, including major tourist spots and cruise ship waste 
disposal areas, Costa Rica refers to its Decree No. 26921 -MAG.1509 
7.737.   This Decree establishes, inter alia , that all passengers arriving in the country, from any 
origin, must state on the  customs declaration form the agricultural products they intend to bring 
into the country ; that agricultural products detected in luggage and personal effects will be withheld 
and subjected to the application of phytosanitary measures according to the risk  they represent ; 
and that agricultural product residues, surplus or waste intended to be unloaded from means of 
transport arriving in the country shall be treated or destroyed .1510 However, this Decree does not 
constitute evidence of ASBVd surveillance in wa ste disposal sites.  
7.738.   The Panel cannot confirm with the information in the record that, with respect to ASBVd, 
Costa Rica carries out surveillance at waste disposal sites . In the Panel's view, considering 
 
1503 Presidente de la República y Ministro de Agricultura y Ganadería de Costa Rica, Reglamento a la Ley 
de Protección Fitosanitaria, No. 26921 -MAG (Regul ation No. 26921 -MAG), (Exhibit CRI -153). 
1504 Costa Rica's response to Panel question No. 153, para. 145. Costa Rica points to, inter alia , the 
following provisions:  
Article  179. The obligation of all passengers arriving in the country. All passengers arrivin g in the 
country, from any origin, must state on the customs declaration form the agricultural products they intend to 
bring into the country, and the phytosanitary authorities must ask for this declaration when passengers' 
luggage is inspected.  
Article  181. The detection of products in luggage. Agricultural products detected in luggage and 
personal effects shall be withheld and subjected to the application of phytosanitary measures according to the 
risk they represent.  
Article  182. Waste in means of transp ort. Any agricultural product residues, surplus or waste intended 
to be unloaded from means of transport arriving in the country shall be treated or destroyed by methods or 
processes approved by the Directorate.  
1505 Mexico's comments on Costa Rica's response to Panel question No. 153, para. 1.  
1506 Mexico's comments on Costa Rica's response to Panel question No. 153, para. 2.  
1507 Mexico's comments on Costa Rica's response to Panel question No. 153, para. 3.  
1508 Mexico's comments on Costa Rica's response to P anel question No. 153, para. 5.  
1509 Regulation No. 26921 -MAG, (Exhibit CRI -153). 
1510 Regulation No. 26921 -MAG, (Exhibit CRI -153), pp. 48 -50. WT/DS524/R  
- 226 - 
  Costa  Rica's concerns regarding spontaneous germination, the lack of surveillance at waste disposal 
sites would be another sampling error by Costa Rica that affects the representativeness of the 
samples, which in turn affects the reliability of the determination  of freedom from  ASBVd in 
Costa  Rica, and therefore its scientific legitimacy.  
Results and traceability of the samples  
7.739.   Costa Rica  states that it has a phytosanitary surveillance database which contains all 
records of surveillance actions, such as the farm' s location code, geographical coordinates, crop, 
pest under surveillance, and area, as well as the regular follow -ups carried out as a result of 
surveillance actions.1511 
7.740.   In response to the Panel's request for additional information and supporting documentat ion, 
Costa Rica submits some Excel tables in Annex 9 entitled " Reporte resultados encuestas específicas 
2014, 2015 -2016, 2017 -2018 y 2019 " (Results reports for specific surveys 2014, 2015 -2016, 
2017-2018, and 2019) . Costa Rica indicates that the reports co ntain information with respect to the 
year of the specific survey, the sample number, the place from which the sample was taken 
(including latitude and longitude), the laboratory result, as well as field observations .1512 According 
to Costa Rica, Annex 9 was  compiled based on information held in the Phytosanitary Surveillance 
System (SIVIFI), the SFE official database since 2017, and the Surveillance and Pest Control System 
(SIF-VCP), the SFE official database prior to 2017 . Costa Rica adds that all the backu ps of these 
databases are on the server that the Information Technology Unit of the SFE has in its possession 
for this purpose.1513 
7.741.   Costa Rica asserts that Annex 9 contains the results of the four sample surveys1514, and that, 
based on the data presented in th at Annex, maps are submitted that reflect the results of the surveys 
to detect ASBVd in 2014, 2015 -2016, 2017 -2018, and 2019.1515 
7.742.   According to Costa Rica, Annex 9 gives the samples location (geolocation and producers' 
information), the number of samples, and  the results of the laboratory tests for ASBVd for each 
sample .1516 Costa Rica states that Annex 9 was compiled using data captured from three types of 
documents : location and follow -up forms, forms for the handling and transportation of the samples 
for pest diagnostics, and the samples' laboratory results1517, and that:  
a. The location forms contain general information on the producers, which includes, for 
example, the name of the establishment or production site, location data, primary crops 
and intercrops ; and the SFE registers the producers in the SIVIFI database in light of the 
information on this form, and the system assigns a code to the producer or farm or 
establishment.1518 
b. Once registered in the SIVIFI, when the SFE visits producers to carry out surveil lance 
activities, such as sample surveys to identify or control pests, the SFE incorporates the 
relevant information into the follow -up form ; that form includes information on crops, the 
sampled area, the pests' common name, comments, as well as the delive ry of the samples 
to the laboratory ; and this form is completed every time a producer or establishment is 
visited and added to the database, which allows a record to be kept of the follow -up visits 
to a producer.1519 
c. In turn, the form for the handling and tr ansportation of samples for pest diagnostics 
provides more detailed information on the delivery of samples to the laboratory ; in 
particular, it specifies the sampling record number, the time at which the sampling began 
and ended, and the samples' chain -of-custody record ; and this form is completed each 
 
1511 Costa Rica's response to Panel question No. 81, para. 3.  
1512 Costa Rica's response to the Panel's information request of 3  August  2020, p. 21.  
1513 Costa Rica's response to the Panel's information request of 3  August  2020, p. 27.  
1514 Costa Rica, transcript of the Panel's meeting with the parties and the experts, day 4, p. 42.  
1515 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 27 -29. 
1516 Costa Rica's response to Panel question No. 138, para. 98.  
1517 Costa Rica's response to Panel question No. 138, para. 99.  
1518 Costa Rica's response to Panel question No. 138, para. 100.  
1519 Costa Rica's response to Panel question No. 138, para. 101.  WT/DS524/R  
- 227 - 
  time sampling is carried out and allows the sample to be traced from the moment it is 
taken on the farm until it reaches the laboratory where the respective analysis is 
performed.1520 
d. Lastly, the laboratory res ults provide information on whether samples were positive, 
negative, false positives, whether the samples were sequenced, which method was used, 
etc.1521 
7.743.   Costa Rica indicates that the clean version of the production establishment or site location 
form, and the form for pest follow -up at production establishments or sites, are presented as Exhibits 
CRI-147 and CRI -148, respectively ; and that the clean version of the form for the handling and 
transportation of samples for pest diagnostics and pesticide res idue analysis is contained in the 
document in Annex 11 to the additional surveillance report of Costa Rica . Costa Rica adds that 
compiled examples of location and follow -up forms are submitted as Exhibit CRI -149, and compiled 
examples of forms for the hand ling and transportation of samples for pest diagnostics as 
Exhibit  CRI-150.1522 
7.744.   Costa Rica states  that the laboratory results are in the record in Exhibits CRI -83 and 
Annex  20 to the additional surveillance report of Costa Rica (2019 sampling survey) ; CRI-19 and 
CRI-20 (2017 -2018 sampling survey) ; Annexes 4 and 12 to the additional surveillance report of 
Costa  Rica (2015 -2016 sampling survey) ; and MEX -115, MEX -134, CRI -15, and CRI -16 (2014 -2015 
sampling survey).1523 
7.745.   For further details on the sampling procedures, Costa Rica refers to the pest sampling 
procedure for plants in the field for diagnostic purposes (Exhibit CRI -82), in force since 2018, and 
the instructions for sampling plant products at phytosanitary checkpoints for diagnostic purposes 
(Exhib it CRI -96), prior to 2018.1524 
7.746.   In its comments on Costa Rica's response to the Panel's information request of 
3 August  2020, Mexico  submits that Costa Rica failed to present, inter alia , the following information 
requested by the Panel : the reports of each s urvey's field observation results, georeferenced and in 
full, including negative and suspicious positive visual inspection results, and whether, in the case of 
the latter, samples were taken to be sent to a laboratory, as well as the results reports for ea ch of 
the surveys where the sampling site can be connected to the laboratory analysis result, including 
maps with georeferenced data.1525 
7.747.   Mexico states that Costa Rica has failed to present evidence that demonstrates that proper 
sample handling controls were  in place . Mexico asserts that the evidence Costa Rica submitted 
(Exhibits CRI -147 and CRI -148) is not sufficient to confirm that sampling controls were carried out, 
particularly with respect to the handling, safeguarding and transportation of the samples,  that the 
exhibits do not indicate the supervisor who approved them, that their implementation date is 
unclear, and that no information is available to confirm categorically that Costa Rica has used the 
procedure it refers to since 2014.1526 
7.748.   Mexico adds that  Exhibit CRI -150 does not clearly show what the sampled product was ; that 
it contains completed forms but Costa Rica does not provide a breakdown of or criteria for 
understanding the information provided ; and that these forms are dated 2017 and 2018, so th ey 
should not be considered as part of the Panel's assessment, as they do not indicate that in 2014 and 
2015 the samples were handled and safeguarded correctly .1527 In Mexico's opinion, the forms in the 
record, which are reproduced in Exhibit CRI -150, appear  disorganized and are therefore difficult to 
 
1520 Costa Rica's response to Panel question No. 138, para. 102.  
1521 Costa Rica's response to Panel question No. 138, para. 103.  
1522 Costa Rica's response to Panel question No. 138, paras.  104-105. 
1523 Costa Rica's response to Panel question No. 138, para. 104.  
1524 Costa Rica's response to Panel question No. 138, para. 106  (referring to Instructivo para el 
muestreo de productos vegetales en puestos de control Fitosanitario con fines de Diagnóstico,   
(Exhibit CRI -96)). 
1525 Mexico's comments on Costa Rica's response to the Panel's information request of 3  August  2020, 
para. 34. 
1526 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 1.  
1527 Mexico's comments on Costa Rica's response to Panel questi on No. 138, para. 2.  WT/DS524/R  
- 228 - 
  understand and analyse, including for experts in the field . Mexico maintains that the traceability of 
the samples  is therefore questionable .1528 
7.749.   With respect to Annex 9, Mexico notes that there are some variations in the quantities of 
samples reported by Costa Rica in the file and the data provided by the SFE in its report and 
Costa  Rica in its response.1529 
7.750.   Mexico submits that : (i) a total of 580 samples were analysed between 2014 and 2016, but 
only 543 sa mples are registered in the database, in addition to which are 21 records (which were 
duplicates), so the overall total would be 564 and not 580 tests ; (ii) no result is recorded for the 
following samples : 64641, 64660, 64841, 64847, 64848, 64854, 64840, 6 7659, 83268, taken on 
2017-11-27, 2017 -11-27, 2017 -11-28, 2017 -11-28, 2017 -11-28, 2017 -11-28, 2017 -11-29, 
2018-02-05, 2019 -04-08, respectively, and they do not appear in the examples, so it is impossible 
to trace them1530; (iii) in Exhibit MEX -64, the sampli ng calculations in 2014 corresponded to 198 
samples, but the UCR requested 264 samples, without making it clear what the reason for this 
request was and why in the end only 258 tests were reported1531; (iv) the sample with code 12126 
collected in 2014, with form No. 37110, indicates that the entomology laboratory analysed this 
sample, when, in the case of a virus, the correct thing to do would be to send it to a molecular 
biology laboratory ; and (v)  the results of the 2014 -2016 sampling surveys do not indicat e the result 
of the diagnostic test for ASBVd.1532 
7.751.   Mexico asserts that it is therefore possible to conclude that Costa Rica's declaration of 
freedom from the pest  was based on the results obtained from a surveillance procedure that from 
the beginning had flaws and errors, which meant that proper sample control and traceability 
(safeguarding and custody) was not possible . Mexico adds that the constant lack of inform ation from 
Costa Rica and the inability to submit it properly before this Panel is striking.1533 
7.752.   The Panel  notes that the information on the presentation of sample results and on the 
traceability  of samples  has been furnished over the course of the proceedin gs. 
7.753.   Initially, Costa Rica shared with Mexico Exhibits MEX -116 and MEX -117, which contain the 
avocado surveillance records for the period from 2010 to 2016, and the nursery surveillance records 
from 2011 to 2015, respectively . These documents are Excel tabl es containing information on 
surveys relating to avocados, which do not refer specifically to ASBVd.  
7.754.   Regarding the results of the 2014 sampling survey , the document on this sampling survey 
(Exhibit MEX -64) indicates that a total of 264 samples were request ed, but the results are not 
given .1534 Costa Rica states that 258 samples were collected .1535 Exhibit MEX -115 indicates that 260 
samples were taken in the 2014 survey, and includes the results reported by the company Agdia 
Inc., to which the membranes for hybr idization with the ASBVd -specific probe were sent . The results 
include 16 positive samples and five suspect samples .1536 Exhibits CRI -151537, CRI -161538, 
MEX-1151539 and MEX -1341540, discussed in section 7.3 above, contain memorandums related to the 
samples that were considered to be false positives after their second diagnostic test by sequencing.  
 
1528 Mexico's comments on Costa Rica's response to Panel question No. 139, para. 1.  
1529 Mexico's comments on Costa Rica's response to the Panel's information request of 3  August  2020, 
fn 39 to para. 34; comments on Costa Rica's response to Panel question No. 138, para. 5 (citing Costa  Rica's 
response to the Panel's information request of 3  August  2020, p. 20, subparagraphs 1 -2 of section 5.2.3).  
1530 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 5.  
1531 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 6.  
1532 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 7.  
1533 Mexico's comments on Costa Rica's response to Panel question No. 138, para. 8.  
1534 2014 sampling survey, (Exhibit MEX -64). 
1535 Summary 2014 -2019 sampling surveys , (Exhibit CRI -17), p. 6; Costa Rica's response to the Panel's 
information request of 3  August  2020, p. 20.  
1536 Memorandum CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115). 
1537 Memorandum CIBCM -501-2019 (2019) , (Exhibit CRI -15). 
1538 Memorandum CIBCM -167-2017 (2017), (Exhibit CRI -16). 
1539 Memorandum CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115). 
1540 Memorandum CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134). WT/DS524/R  
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  7.755.   With respect to the results of the 2015 -2016 sampling survey , they were not found in the 
record . The document on this sampling survey (Exhibit MEX -65) indicates that 32 2 samples were 
collected, but the results are not given.1541 
7.756.   Exhibit CRI -18 contains a letter dated 1 8 December  2015, which states that the SFE was 
entrusted with the task of verifying a report, and that consequently the sampling that was scheduled 
for January  2016 was brought forward . The document indicates that 284 samples were collected in 
that sampling exercise, and refers to the negative results for 150 samples received up to that date, 
including the farm and specifically the tree sampled by Dr Obregón, who had reported a positive 
result for ASBVd .1542 This exhibit also contains what is referred to as the sampling record of that 
tree.1543 
7.757.   With regard the results of the 2017 -2018 sampling survey , they are presented in 
Exhibits  CRI-19 and CRI -20. Exhibit CRI -19 contains a memorandum from the Central Pest 
Diagnostic Laboratory of the SFE, dated 1 5 January  2018, which pre sents the results of the survey . 
The memorandum indicates that a total of 245 avocado leaf samples were received ; that these were 
analysed using the real -time RT -PCR technique and following the LAB -LDP-BM-PT-06 Molecular 
detection of Avocado sunblotch viro id (ASBVd) V 02 procedure1544; and that the presence of ASBVd 
was not detected in any of the samples analysed . The table of results contains the date of receipt of 
the sample, the requesting entity (Central Eastern Regional Unit and the Chorotega Regional Un it), 
the sample code, the analysis requested (ASBVd), the material analysed (leaves), and the result 
(negative for all 245 samples) .1545 This exhibit and Exhibit CRI -201546 contain a memorandum from 
the Central Pest Diagnostic Laboratory of the SFE dated 2 2 February  2018, which presents the 
results of the continuation of the 2017 -2018 sampling survey . The memorandum indicates that 
61 additional leaf samples were received for analysis using real -time RT -PCR, applying the 
LAB-LDP-BM-PT-06 Molecular detection of Avocado sunblotch viroid (ASBVd) V 02 procedure . 
The table of results contains the date of receipt of the sample, the requesting entity (Central Eastern 
Regional Unit), the sample code, the analysis requested (ASBVd), the material analysed (le aves), 
and the result (negative for all 61 samples).1547 
7.758.   With respect to the results of the 2019 sampling survey , Exhibit CRI -21 contains a 
memorandum from the Central Pest Diagnostic Laboratory of the SFE dated 2 4 June 2019, which 
states that it corresponds  to the final results report for the laboratory analysis carried out on 
Costa  Rican avocado samples to detect ASBVd, and which recapitulates the partial results presented 
in memorandums LDP -013-2019 (of 2 0 March  2019), LDP -016-2019 (of 2 3 April 2019), 
LDP-RAM-0001-2019 (of 2 8 May 2019) and LDP -RAM-0002-2019 (of 2 4 June 2019).1548 These 
memorandums are not part of the Panel's record . The document states that the Molecular Biology 
Section of the Central Pest Diagnostic Laboratory received 439 samples1549; that th e 
LAB-LDP-BM-PT-06 molecular detection procedure was applied1550; and that the results for the 
samples were 100 % negative for ASBVd .1551 The document refers to "table 1" which presents a 
summary of the codes of the analysed samples and their respective results , but it states that, owing 
to the large number of samples and amount of data generated, the details (raw and graphic data) 
are not appended .1552 Table 1 does not appear in Exhibit CRI -21. 
7.759.   Exhibit CRI -83, referred to by Costa Rica in relation to the results of the 2019 sampling 
survey, is the ASBVd survey plan for the 2019 avocado crop, so it does not contain the results of 
the sampling carried out subsequently.1553 
 
1541 Sampling survey  2015-2016, (Exhibit MEX -65). 
1542 Obregón rebuttal (2015), (Exhibit CRI -18), p. 2. 
1543 Obregón rebuttal (2015), (Exhibit CRI -18), p. 3. 
1544 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86). See also Costa Rica's response 
to the Panel's information request of 3  August  2020, Annex 15. 
1545 Final report (1) on sampling survey 2017 -2018, (Exhibit CRI -19), p. 3 -10. 
1546 Final report (2) on sampling survey 2017 -2018, (Exhibit CRI -20). 
1547 Final report (1) on sampling survey 2017 -2018, (Exhibit CRI -19), p. 11 -13. 
1548 Final report 2019 sampling sur vey, (Exhibit CRI -21), p. 3.  
1549 Final report 2019 sampling survey, (Exhibit CRI -21), p. 3.  
1550 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86). 
1551 Final report 2019 sampling survey, (Exhibit CRI -21), p. 4.  
1552 Final report 2019 sampling survey, (Exhibit CRI -21), p. 4.  
1553 ASBVd survey in Costa Rica (2019), (Exhibit CRI -83). WT/DS524/R  
- 230 - 
  7.760.   With regard to the four sampling surveys , Costa Rica also submitted Exhibit  CRI-17 in 
September  2019, which contains a document entitled " Report on the s urveillance to determi ne the 
absence of ASBVd in avocado plantations in Costa Rica ".1554 With respect to specific surveillance, 
the document contains a review of the circumstances of the four s ampling surveys, including 
information on each sampling period, the number of samples taken, the zones in which the sampling 
was carried out, and the laboratory or laboratories involved .1555 The report states that all of the 
1,325 samples analysed between 20 14 and 2019 were negative for ASBVd .1556 However, this report 
is dated September  2019, and does not include information on the taking of samples and their 
traceability, or on the concrete results of their diagnostic tests.  
7.761.   Initially, in his response to the P anel's additional questions, the surveillance expert, 
Pablo  Cortese, indicated that the information in the records provided was not properly organized or 
consolidated, as the same years and locations appeared on different worksheets, and there was no 
correlation, or the correlation was unclear, between those sampling surveys and the results obtained 
from the laboratory diagnostic test .1557 Mr Cortese stated, in reference to Exhibits CRI -18 (2015), 
CRI-19 (2017 and 2018), CRI -20 (2018), and CRI -21 (2019), that  it had not been possible to 
correlate those results with the data presented in MEX -116 and MEX -117, and noted that partial 
results were given in Exhibit CRI-18. According to Mr Cortese, it was impossible to establish the full 
traceability of the reported samples from all of that evidence .1558 With respect to the exhibits 
containing information on the false positives indicated by Costa Rica1559, Mr Cortese stated that, 
although it was asserted that the laboratory diagnostic test results were negative, the relationship 
between the reports and the traceability of samples was not clear.1560 
7.762.   Mr Cortese also pointed out that Costa Rica should have the repor ts of the results of each of 
the surveys, from which the place the sample was taken could be linked to the result obtained from 
the laboratory analysis, including maps with georeferenced data.1561 
7.763.   From the preceding information, and in light of Mr Cortese 's response, it can be seen that, 
prior to the Panel's request for additional information and supporting documentation of 
3 August  2020, the results of Costa Rica's ASBVd sampling surveys of 2015 -2016 and 2019 were 
missing, as was the information that would a llow the sampling to be linked to the laboratory results 
for the 2014 and 2017 -2018 surveys . Similarly, the map with the georeferences of the sampled 
farms that Costa Rica submitted1562 was not presented with the rest of the documents and was not 
mentioned i n them.  
7.764.   As mentioned above, Costa Rica submitted additional information in its response to the 
Panel's request for additional information and supporting documentation dated 3 August  2020. 
7.765.   The Panel notes that the matter of the presentation of the results a nd the traceability of 
samples  has been  clarified over the course of the proceedings, and that some of the results and 
details that help to identify the samples were not initially found in the record, but that they were 
presented in Costa Rica's response t o the Panel's request of 3 August  2020. In particular, the reports 
on the laboratory results of the sampling surveys of 2015 -2016 (Annexes 4 and 12) and 2019 (Annex 
20) were presented in an annex, and an Annex 9, entitled "Results reports for specific surv eys 2014, 
2015-2016, 2017 -2018, and 2019", was also presented.  
7.766.   Annexes 4 and 12 contain the ASBVd detection results for 2016 from the SFE laboratory and 
the UCR laboratory, respectively . Annex 4 contains a memorandum dated 2 7 January  2016 from the 
Pest Dia gnostic Laboratory of the SFE, which states that a total of 151 avocado leaf samples were 
received, and that appended thereto are the results of the molecular analysis to detect ASBVd using 
RT-PCR, agarose gel electrophoresis documentation, the results of the real -time PCR using 
 
1554 Summary 2014 -2019 sampling surveys , (Exhibit CRI -17). 
1555 Summary 2014 -2019 sampling surveys , (Exhibit CRI -17), pp. 5 -9. 
1556 Summary 2014 -2019 s ampling surveys , (Exhibit CRI -17), p. 9.  
1557 Pablo Cortese's response to additional Panel question No. 2 for Pablo Cortese.  
1558 Pablo Cortese's response to additional Panel question No. 2 for Pablo Cortese.  
1559 Memorandum CIBCM -501-2019 (2019), (Exhibit CRI -15); Memorandum CIBCM -167-2017 (2017), 
(Exhibit CRI -16); Memorandum CIBCM -PCDV -044-2014 (2014), (Exhibit MEX -115); and Memorandum  
CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134). 
1560 See Pablo Cortese's response s to additional Panel questions Nos. 1 and 2 for Pablo Cortese.  
1561 See Pablo Cortese's response to additional Panel question No. 3 for Pablo Cortese.  
1562 Map sampling surveys 2014 –2019, (Exhibit CRI -84). WT/DS524/R  
- 231 - 
  the COX (internal control) gene, and the cited bibliographic references . The results of all the samples 
received between 2 5 November  2015 and 1 5 January  2016 are given as negative . Some of the 
laboratory codes are not ide ntified ; it is noted that they are "pending assignment".  
7.767.   Annex 12 contains a memorandum dated 2 7 January  2016 from the CIBCM of the UCR, 
appended to which are the results of 171 avocado leaf samples received at the end of November 
and December  2015 and eva luated using RT -PCR. It states that no amplification product was 
detected in 133 samples (they were negative for ASBVd), and that amplification products were 
obtained in 38 samples, which were sent to Macrogen Inc. (Korea) in order to be purified and 
seque nced directly . The results indicate that none of these 38 samples sent to Macrogen Inc.  (Korea)  
was positive, and it is concluded that none of the 171 samples were positive for ASBVd . The Panel 
notes that the date of receipt of some of the samples, accordi ng to the table containing the records, 
is December  2016, which appears to be an error in the records.  
7.768.   Annex 20 comprises an undated document from the Central Pest Diagnostic Laboratory of 
the SFE, entitled " Informe final – Análisis de ASBVd en aguacate na cional " (Final report – ASBVd 
analysis of Costa Rican avocados), and contains a table with the results of the laboratory analysis 
to detect ASBVd using real -time RT -PCR in Costa Rican avocado samples . The results of 439 leaf 
and fruit samples, received fro m the Central Eastern, Chorotega, Central Western, Brunca, and 
Central Pacific Regional Units between 2 6 February  2019 and 1 0 April 2019, are presented . It states 
that all the results were negative for ASBVd, and it also draws attention to 67 samples, the results 
of which were verified by repeating the real -time RT -PCR, using traditional RT -PCR with the primers 
designed by Schnell et al., or using sequencing, or for which the RNA extraction was repeated .1563 
It indicates that, for three of these 67 assays, th e results were verified using both traditional RT -PCR 
with the primers designed by Schnell et al. and sequencing.1564 
7.769.   As mentioned, Costa Rica submitted for the first time the results of the 2015 -2016 sampling 
survey in Annexes 4 and 12 to its response to th e Panel's request of 3 August  2020. The same is 
true for the results of the 2019 sampling survey in Annex 20.  
7.770.   Annex 9 contains two Excel spreadsheets, entitled " boletas y seguimientos " (forms and 
follow -up) SIF -VCP and SIVIFI . The SIF -VCP information covers the period 2014 -2016, and provides 
the SFE code, name of the establishment, form number, date of the visit1565, observations, crop, 
laboratory receipt observations, geographical coordinates, sample number and laboratories 
consulted . The SI VIFI information is for the period 2017 -2019, and is organized as follows : 
laboratories consulted, SFE code, name of the establishment, crop, genus, follow -up number, date 
of visit (follow -up), common name of the pest, scientific name of the pest, year of visit, laboratory 
receipt number, official responsible, geographical coordinates, comments on the request for the 
laboratory, and result.  
7.771.   The Panel notes that Annex 9 contains 1,292 entries, while Costa Rica states  that it has 
carried out four intensive sa mpling surveys of avocado plantations in Costa Rica, analysing 
1,325  samples to date .1566 Moreover, the SIF -VCP information for the 2014 -2016 sampling surveys 
does not include the laboratory results for the samples, and in the SIVIFI information for 2017 -2019 
there are eight sample entries marked as "no result".  
7.772.   With respect to the traceability  of samples , from the early stages of the proceedings, the 
Panel found in the record statements confirming that Costa Rican officials carried out the chain of 
custody o f the sample at all times, which ensures the traceability of samples  from the field until they 
 
1563 Costa Rica's response to the Panel's information reque st of 3  August  2020, pp. 292 -305, Annex 20.  
1564 See tests Nos. 252, 264 and 265. (Costa Rica's response to the Panel's information request of 
3 August  2020, pp. 292 -305, Annex 20).  
1565 At the Panel's meeting with the parties and the experts, Costa Rica states that the date contained in 
the Excel table, which is Annex 9, is not the date of the sample as such, but rather the date on which the 
sample was entered into the digital system. (Costa Rica, transcript of the Panel's meeting with the parties and 
the expert s, day 4, p. 42). The Panel observes that the title of the Excel table column in Annex 9 to which 
Costa Rica appears to refer is "dt_Visita" (dt_Visit) for years 2014 -2016 and "Fecha_Visita_Seguimiento" 
(Follow -up_Visit_Date) for years 2017 -2019. Furthermo re, the completed monitoring forms contained in 
Exhibit CRI -149 include the visit dates, and those found in Annex 9 match the dates indicated in the 
"dt_Visit"/"Follow -up_Visit_Date" column. The Panel is therefore unable to corroborate Costa Rica's claim.  
1566 Costa Rica's first written submission, para. 3.27. See also Summary 2014 -2019 sampling surveys , 
(Exhibit  CRI-17), p. 9.  WT/DS524/R  
- 232 - 
  are delivered to the laboratory for processing and analysis .1567 Furthermore, in Exhibit  MEX-114, 
undated, the SFE states that the samples were sent in accordance with procedures established to 
ensure the traceability of samples from the moment they are taken until the result of the analysis 
(seal, code and completion of the custody form) .1568 In the same exhibit, the SFE refers to a database 
system for pest sampling and surveys at the national level .1569 In the Panel's view, these statements 
by Costa Rica in various documents are not, by themselves, sufficient to confirm the sample 
traceability of the sampling surveys to detect ASBVd.  
7.773.   In the memorandum on the 2 019 sampling survey, with respect to the laboratory analysis 
process, the Panel found the assertion that the traceability of the entire process was recorded for 
each sample in the form R -03-LAB-LDP-BM-PO-08_Traceability form for the preparation and 
extract ion of samples and in the forms for the procedure LAB -LDP-BM-PT-06_Molecular detection of 
avocado sunblotch viroid (ASBVd), with the consecutive numbers 2019 -18 through 2019 -30, 
2019-35, 2019 -36 and 2016 -38; as well as the assertion  that these records and the data generated 
and stored on the equipment are available in the laboratory should they need to be consulted .1570 
The Panel did not find in the record the form R -03-LAB-LDP-BM-PO-08_Traceability form for the 
preparation and extraction of samples or the fo rms for the procedure LAB -LDP-BM-PT-06_Molecular 
detection of avocado sunblotch viroid (ASBVd) with the consecutive numbers 2019 -18 through 
2019-30, 2019 -35, 2019 -36 and 2016 -38. Neither the form R -03-LAB-LDP-BM-PO-08_Traceability 
form for the preparation and extraction of samples nor the forms with the consecutive numbers 
2019-18 through 2019 -30, 2019 -35, 2019 -36 and 2016 -38 became part of the record.  
7.774.   The record also contains a blank custody chain record form .1571 The document came into 
force on 1 1 July 2019, and contains the following points : sample destination, who took the sample, 
sampling date, sampling end time, record number, seal number, sample code, form number, product 
sampled, date possession of the sample was taken, start time, end time,  name of the person 
responsible in the possession chain, signature of the person responsible . Costa Rica refers to this 
exhibit in its response to the Panel's question regarding the chain of custody of the samples taken 
on the border for laboratory analysi s using real -time PCR from the moment the sample is taken at 
the entry point until the result is released .1572 It is not clear whether this form has been used and 
whether it is used for the chain of custody of samples obtained during specific surveys to dete rmine 
the status of ASBVd in Costa Rica, or only for sampling at the border . No completed examples of 
this form have been provided either.  
7.775.   In its response to the Panel's information request of 3 August  2020, Costa Rica submits that, 
in order to maintain the traceability, integrity and security of the samples sent to the laboratory, 
they are placed under seal and are transferred to the laboratory by SFE staff.1573 
7.776.   In the same response, Costa Rica states that the "Regulated Pest Surveillance and 
Control Procedure", in force since November  2018, describes in detail the placement of a seal or 
label and the transfer to the laboratory, and that the form used is OR -RN-F-01 Form for the handling 
and transportation of samples for pest diagnostics and pestici de residue analysis, appended 
thereto .1574 Costa Rica submits that, in the first part of the form, each space corresponds to a sample 
where the record number, seal number and sample code with which it is deposited with the 
laboratory, are given, that the sam ple code is assigned by the phytosanitary surveillance system, 
and that the Diagnostic Laboratory does not accept any sample that arrives without its corresponding 
code.1575 Costa Rica adds that, in the second part of the form, all the information requested must 
be provided for each of the samples collected, and that, each time the sample changes hands, the 
information about who has it in their possession must be added, until it reaches the laboratory where 
the analysis will be carried in and where the chain of custody ends.1576 
 
1567 Obregón rebuttal  (2015) , (Exhibit CRI -18), p. 2.  
1568 SFE, Application  of ISPM Nos. 6 and 8 by the SFE, (Exhibit MEX -114), p. 2.  
1569 SFE, Application  of ISPM Nos. 6 and 8 by the SFE, (Exhibit MEX -114), p. 3.  
1570 Final report on 2019 sampling survey, (Exhibit CRI -21), p. 4.  
1571 Servicio Fitosanitario del Estado del Ministerio de Agr icultura y Ganadería de Costa Rica , "Registro 
de la cadena de custodia", CFI -PO-03_F-02, que rige a partir del 11 de julio de 2019 , (Exhibit CRI -93). 
1572 See Costa Rica's response to Panel question No. 37.  
1573 Costa Rica's response to the Panel's information r equest of 3  August  2020, p. 25.  
1574 Costa Rica's response to the Panel's information request of 3  August  2020, p. 25.  
1575 Costa Rica's response to the Panel's information request of 3  August  2020, p. 26.  
1576 Costa Rica's response to the Panel's information request of 3  August  2020, p. 26.  WT/DS524/R  
- 233 - 
  7.777.   The "Regulated Pest Surveillance and Control Procedure", in force since November  20181577, 
states that the phytosanitary inspector must take a sample and send it to the official laboratory for 
diagnosis, with the respective OR -RN-F-01 Form  for the handling and transportation of samples for 
pest diagnostics and pesticide residue analysis .1578 In addition, the "Regulated Pest Surveillance and 
Control Procedure" requires the phytosanitary inspector to enter in the SIVIFI all the information 
gathered during production site visits .1579 According to this procedure, the OR -RN-F-01 form is stored 
physically in the respective file for each case, in the archive of the Regional Operational Unit, and 
digitally in the SIVIFI.1580 
7.778.   It should also be noted that t he "Pest sampling procedure for plants in the field for diagnostic 
purposes", in force since February  20181581, contains instructions on transporting the sample, closing 
and sealing the container so that it is impossible to open it or take off the label or seal without 
breaking it, and delivering the sample, together with the custody form, to the laboratory, preferably 
on the same day it was taken and no more than three days after that.1582 
7.779.   A blank copy of a form, entitled "Form for the handling and transporta tion of samples for 
pest diagnostics and pesticide residue analysis", was submitted as an Annex to Costa Rica's response 
to the Panel's request of 3 August  2020.1583 The form requests information on the region, who took 
the sample, sampling date, sampling st art time, sampling end time, record number, seal number, 
sample code of the SFE laboratory, and sampled product . The form also includes a second part with 
the title "sample custody record", which contains the following points : date possession of the sample  
was taken, start time, end time, name of the person in the possession chain, signature of the person 
in the possession chain.  
7.780.   The name of the form referred to in the "Regulated Pest Surveillance and Control Procedure" 
coincides with the name of the blank form submitted by Costa Rica in response to the Panel's 
information request, but the blank form does not bear a code from the SFE system with which it can 
be identified . The Panel notes that it is not clear when this form came into force, and there is no 
evidence of its use, beyond Costa Rica's assertion that the form is used .1584 This document was 
submitted in September  2020, blank, and without any completed examples of it.  
7.781.   Even with Costa Rica's response to the information request of 3 August  2020, the Pane l has 
not found completed forms that confirm Costa Rica's assertions on ensuring the sample traceability 
of the four sampling surveys to detect ASBVd . The only thing in the record were two blank forms . 
The Panel requested additional information from Costa Rica, as described below.  
7.782.   The expert Pablo Cortese notes that the new annexes to Costa Rica's response to the Panel's 
request improve, to a certain extent, the presentation of Costa Rica's results .1585 With regard to the 
reliability of the records used to de termine the pest status of Costa Rica, Mr Cortese states  that, 
upon reading the information received initially, he found the records a little incomplete, and that 
once more information arrived, they seemed a little more complete, but he cannot say that the y 
were highly reliable, commenting that some seem more reliable than others.1586 
7.783.   Regarding the traceability of Costa Rica's samples in light of the new annexes, Mr Cortese 
states that the elements that Costa Rica has presented are sufficient in his opinion, and that he has 
 
1577 Document OR -RN-PO-01 (2018), (Exhibit CRI -88); and Costa  Rica's response to the Panel's 
information request of 3  August  2020, Annex 7.  
1578 Document OR -RN-PO-01 (2018), (Exhibit CRI -88), p. 4.  
1579 Document OR -RN-PO-01 (2018), (Exhibit CRI -88), p. 4. Costa Rica also points out that agricultural 
production establishments, at which pest monitoring is undertaken of the various crops at the national level, 
are registered in the system, follow -up visits are made to the es tablishments, and tables and charts of different 
activities, crops and pests, among other things, can be generated. (Memorandum OR -BSG-004/2019 (2019), 
(Exhibit  CRI-85), p. 3).  
1580 Document OR -RN-PO-01 (2018), (Exhibit CRI -88), p. 6. See also Document OR -RN-PO-03 (2018), 
(Exhibit  CRI-82), p. 8.  
1581 Document OR -RN-PO-03 (2018), (Exhibit CRI -82); Costa Rica's response to the Panel's information 
request of 3  August  2020, Annex 8.  
1582 Document OR -RN-PO-03 (2018), (Exhibit CRI -82), pp. 6-7. 
1583 Costa Rica's response to the Panel's information request of 3 August 2020, Annex 11.  
1584 Costa Rica's response to the Panel's information request of 3 August 2020, p. 25.  
1585 See Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 3 2. 
1586 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 63.  WT/DS524/R  
- 234 - 
  made some checks against the worksheets and the laboratory worksheets, and the information 
matches, although information is missing for some years .1587 With regard to the sampling survey 
results, Mr Cortese adds that at the beginning they wer e somewhat disorganized, and later they 
were presented in a little more organized fashion, but that results are missing, because he identified 
the results for two surveys only.1588 
7.784.   With regard to the maps in Costa Rica's response to the Panel's request for a dditional 
information and supporting documentation, Mr Cortese states that they are not detailed enough to 
be able to carry out an in -depth analysis, although the expansion of the territory covered by 
monitoring is noted.1589 
7.785.   The Panel is unable to verify wh ether Costa Rica had all the information included in Annex  9 
when it carried out and obtained the results of each sampling survey . Despite this, and in light of 
the opinion of the surveillance expert Pablo Cortese, the Panel notes that Annex 9 improves the 
presentation of the results and clarifies to some extent the traceability of the samples, which was 
not possible before, by allowing the sample to be tracked better from the moment it is taken until 
diagnosis in a laboratory.  
7.786.   At its second meeting with the parties, the Panel asked Costa Rica about the documents 
whose information is captured in the SIF -VCP and in the SIVIFI, and is included in Annex 9 of 
Costa  Rica's response to the Panel's request for additional information and suppor ting 
documentation.  
7.787.   In its responses to the Panel's questions following the Panel's second meeting with the 
parties, Costa Rica notes that data captured in three types of documents were used to prepare 
Annex  9: location and follow -up forms ; forms for the h andling and transportation of samples for pest 
diagnostics ; and samples' laboratory results .1590 Costa Rica confirms that it is submitting the clean 
version of the production establishment or site location form and the form for pest follow -up in 
production e stablishments or sites, and compiled examples of location and follow -up forms and 
compiled examples of forms for the handling and transportation of samples for pest diagnostics.1591 
7.788.   Exhibit CRI -149 contains 20 completed location and follow -up forms . Of these , six are 
location forms and 14 are follow -up forms . Two of the follow -up forms contain identical 
information1592, but Annex 9 also contains two identical entries that appear to correspond to these 
two forms . The Panel notes that, among the examples of follo w-up forms, examples from the 
2015-2016 sampling survey are missing, and only examples from 2014, 2017 and 2019 are 
provided . Moreover, seven of the 14 follow -up forms correspond to samples allegedly taken on dates 
outside the sampling survey period . The information on these forms cannot be traced through 
Annex  9, as Annex 9 does not include samples from those dates . In particular : five forms are dated 
1 November  2017, which is prior to 2017 -2018 sampling survey, and therefore they are not included 
in Annex  91593; one form is dated 30  January  2019, which is prior to the 2019 sampling survey and 
is not included in Annex 91594, 1595; another form is dated 2 9 August  2019, which is after the 2019 
sampling survey period and is not in Annex 9 .1596 Similarly, the Panel notes that not all the 
information required has been entered on some of the follow -up forms, such as, for example, the 
sample number1597 or the GPS location .1598 This means that the Panel is unable to confirm that the 
traceability of the given ASBVd samp les was reliable.  
 
1587 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 11.  
1588 Pablo Cortese, transcript of the Panel's meeting with  the parties and the experts, day 4, p. 32.  
1589 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 4, p. 11.  
1590 Costa Rica's response to Panel question No. 138, para. 99.  
1591 Costa Rica's response to Panel question No. 138, p aras. 105 -106. 
1592 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), pp. 4 and 22.  
1593 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), pp. 17 -21. 
1594 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), p. 10.  
1595 The possible st art date of the 2019 sampling survey was 25  February  2019. ( ASBVd surveys in 
Costa Rica  (2019) , (Exhibit  CRI-83), pp. 7 -8). Costa Rica notes that sampling was carried out between 
February and April. (Costa  Rica's first written submission, para. 3.26; Costa Rica's response to the Panel's 
information request of 3  August  2020, p. 21).  
1596 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), p. 16.  
1597 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), pp. 7 and 10.  
1598 Completed forms OR -RN-F-03 and OR -RN-F-04, (Exhibit CRI -149), p. 8.  WT/DS524/R  
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  7.789.   Exhibit CRI -150 contains 15 forms for the handling and transportation of samples for pest 
diagnostics and pesticide residue analysis, including the second page  of the form, which contains  
the custody records  of the samples . All the forms date from 2017 -2018. Although one of the 
examples refers to a sample that, according to Annex 9, was taken on the day prior to that recorded 
on the form1599, the numbers of the seals are in Annex 9.  
7.790.   From the foregoing, the Panel notes that the presentation of results and the traceability of 
samples have been clarified over the course of the proceedings, due to the submission of Costa  Rica's 
response to the Panel's request for additional information and supporting documentation of 
3 August  2020. In particular,  information was provided on the results of two of the four sampling 
surveys (of 2015 -2016 and 2019), and an Excel table (Annex 9), which allowed for better tracking 
of the samples from the moment they were taken until diagnosis in a laboratory . However, t he 
number of entries in Annex 9 does not correspond to the total number of samples indicated for the 
four sampling surveys, and the laboratory results for the samples from the 2014 -2016 sampling 
survey are missing from this Annex, as are eight samples from  subsequent sampling surveys . The 
Panel is of the view that this affects the traceability of the samples.  
7.791.   With regard to the forms used from when the sample is taken until its delivery to the 
laboratory, completed examples of these forms were submitted for  the first time with Costa  Rica's 
responses to the Panel's questions following the Panel's second meeting with the parties . The Panel 
found that some of the examples provided had not been completed accurately, and noted that some 
of the follow -up forms do not correspond to samples taken during the four sample surveys, so their 
traceability cannot be confirmed through Annex 9 . Although the submission of completed forms 
clarified, in part, the information on the record of actions of Costa Rica's ASBVd samplin g surveys, 
these forms' flaws also cast doubt on the traceability of taking samples.  
7.792.   In conclusion, although the presentation of results and the traceability of samples have been 
clarified over the course of the proceedings, complete traceability of the sa mples is lacking, which 
affects the reliability of the determination that ASBVd is absent in Costa Rica, and thus its scientific 
legitimacy.  
Laboratory analysis  
7.793.   Mexico  submits that the technical files of the PRAs refer to the reverse transcription 
polymerase chain reaction (RT -PCR) method, which was used to analyse the samples collected from 
symptomatic trees, but no explanation of the procedure  used can be gleaned from  these documents . 
According to Mexico, Costa Rica failed to indicate the importance or the relevance of the selected 
method and to use an additional method to corroborate the results.1600 
7.794.   Mexico asserts that in the first and second sampling surveys there wer e samples of suspected 
ASBVd, and that, for one of them, which refers to the tree allegedly analysed by Dr Obregón, 
Costa  Rica claims to have confirmed the negative results for ASBVd, but the testing was limited to 
the RT -PCR method, in contrast to the ana lysis performed by Dr Obregón, who also carried out 
sequencing.1601 
7.795.   Mexico considers that obtaining an objective and reliable ASBVd test result will depend on 
aspects such as the type of sample, verification of the quality and quantity of RNA, the RNA integr ity 
verification method, as well as a laboratory's diagnostic techniques . Mexico points out that the 
ASBVd molecular detection protocol produced by Costa Rica's phytosanitary authority was compared 
to Mexico's ASBVd diagnostic protocol, and difference s were found with respect to : (i) the proper 
standardization of the protocols ; (ii) the specifications for the type of samples suggested ; (iii) the 
annealing temperature ; (iv) the standardization and approval of equipment for the routine diagnosis 
 
1599 Seal No. 8475. (Completed forms OR -RN-F-01 (2017 -2018), (Exhibit CRI -150), p. 17).  
1600 Mexico's first written submission, para. 452.  
1601 Mexico's second written submission, para. 31 (citing Laboratorio de Diagnóstico Integral 
Fitosanitario (LADIFIT), "Informe de resultados", prueba de laboratorio 15/125 -Vr, del Dr Obregón Goméz, 
14 de enero de 2016, (Exhibit MEX -240)). WT/DS524/R  
- 236 - 
  of ASBVd and extraction of RNA ; and (v)  the use of controls.1602 Mexico indicates that it has set out 
the errors detected in Costa Rica's sampling protocol in Exhibit MEX -221.1603 
7.796.   Mexico adds that, due to the rapid phenolic oxidation of avocado plant tissue, it is necessary 
to ensure that the extraction method is the right one, otherwise it may result in false positives 
because of the potential degradation of the RNA ; and that the failure to properly purify the genetic 
material (RNA), by removing all phenolic compou nds and polysaccharides, can make it difficult to 
extract RNA, thus hampering the recovery and proper processing of the sample under analysis.1604 
7.797.   Mexico considers that, by using a proper diagnostic protocol, the likelihood of getting a false 
positive is ver y low, particularly if that protocol includes sequencing of the amplified fragment to 
confirm that it is the pathogen tested for ; that the accuracy of an assay depends on both the 
measuring tool and the measuring process ; and that it is not simply a questi on of following a 
particular protocol.1605 
7.798.   Mexico asserts  that a correct diagnostic protocol includes carrying out routine quality control 
assays, that it should include reviewing normal and abnormal samples, and that an internal quality 
plan should be followed.1606 
7.799.   Mexico points out that, with the correct handlin g and preservation of collected plant material, 
false positives are not common ; and that, independently of the number of samples analysed, the 
likelihood of finding false positives is low, provided that attention is paid to all aspects to ensure an 
appropr iate diagnostic methodology, and includes a quality assurance system which allows the 
traceability of the samples analysed to be understood.1607 
7.800.   Mexico adds that there is no chance of obtaining false positives or negatives when using 
end-point PCR (RT -PCR) a nd real -time PCR (RT -qPCR), because genetic sequencing is carried out on 
any suspect sample.1608 
7.801.   For Mexico, while Costa Rica verifies its samples by traditional RT -PCR, ideally it should first 
verify them using another set of real time primers because Costa  Rica is checking the samples 
through a less sensitive technique . Mexico points out that, consequently, in such instances it may 
be that the ASBVd titre is low in those samples, such that the agarose gel might not be able to 
produce defined bands for detec ting ASBVd.1609 
7.802.   Mexico submits that Costa Rica has still not submitted complete, organized information that 
allows for proper traceability with respect to the handling of samples . Mexico notes that Costa  Rica 
failed to provide, for example, the electrophores is gels of the first assays that produced false 
positives in 2014 .1610 Mexico adds that Costa Rica also failed to provide specific information with 
regard to the nucleotide sequence and the sequence alignment and analysis to verify that the 
amplifications co rrespond to avocado tissue, which would allow the Panel to verify that it complies 
with the SFE's own pest surveillance and diagnosis procedures, as, otherwise, they remain simple 
unfounded assertions.1611 
7.803.   Mexico considers the foregoing to be relevant becaus e Costa Rica uses the real -time PCR, 
and, according to Mexico, it is odd that this technique produced non -specific amplifications, given 
that the literature mentions that the real -time PCR is 1,000 times more sensitive than the traditional 
 
1602 Mexico's second written submission, para. 33 ( citing Servicio Nacional de Sanidad, Inocuidad y 
Calidad Agroalimentaria (SENASICA), Dirección General de Sanidad Vegetal, "Opinión Técnica de los Protocolos 
de Diagnóstico Fitosanitario para la detección de ausencia o presencia del viroide Avocado sunblotch viro id 
(ASBVd)", enero de 2020 ( SENASICA , Comparison of the ASBVd diagnostic protocols of Mexico and Costa Rica 
(2020)), (Exhibit MEX -221)). 
1603 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 1.  
1604 Mexico's second written submission, para. 34 (citing SENASICA, Comparison of the ASBVd 
diagnostic protocols of Mexico and Costa Rica (2020), (Exhibit MEX -221)). 
1605 Mexico's response to Panel question No. 146, para. 95.  
1606 Mexico's response to Panel question No. 146, paras.  96-97. 
1607 Mexico's re sponse to Panel question No. 146, paras.  99-100. 
1608 Mexico's response to Panel question No. 146, para. 102.  
1609 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 1.  
1610 Mexico's comments on Costa Rica's response to Panel question No. 1 46, para. 2.  
1611 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 3.  WT/DS524/R  
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  PCR, similar to the reported results for dot -blot hybridization, where the real -time PCR is 1,000 times 
more sensitive.1612 
7.804.   Mexico asserts that Costa Rica has failed to duly demonstrate that the suspect or false 
positive samples were retested, how the retesting was carried out, whether it was partial or full, and 
whether new samples were requested in the event of full retesting . According to Mexico, there is no 
way to confirm that the material was still optimal for carrying out the analysis.1613 
7.805.   Mexico asserts that the SFE, despite having established specific protocols for, inter alia , the 
diagnosis of pests, specific surveillance, document and record checks, and the sampling of avocado 
trees, does not apply them to its daily procedures, or they, like the ASBVd detection protocol, are 
poorly designed.1614 
7.806.   Mexico submits that Exhibits CRI -12 and CRI -152 were prepared ex post facto , that is, after 
Costa Rica had taken samples in 2014 and 2015 in its territory and determined the absence of 
ASBVd, which makes this assertion questionable .1615 Mexico notes that it is unclear and that it has 
doubts about whether a proper sequence analysis was applied in 2014 and 2015, which allegedly 
produced false positives when using the Agdia test kit .1616 For Mexico, while C osta Rica provides the 
purported assurance of the quality of the diagnostic methods in Exhibit CRI -152, this document is 
only the result of the changes Costa Rica has made to processes in these proceedings , and does not 
reflect the elements that Costa Rica  used to develop its PRAs and to design its surveillance systems 
from 2014 onwards.1617 
7.807.   Mexico is of the opinion that Costa Rica has failed to submit specific exhibits that allow 
samples to be traced in the case of non -specific amplifications, which is relev ant considering that 
the presence of dimeric forms of ASBVd have been reported in the scientific literature .1618 For Mexico, 
the fact that Costa Rica itself refers to the failure to document the results with noise or anomalies 
in the final report indicates t he lack of rigour of its surveillance system.1619 
7.808.   Mexico points out that it is impossible to know what Costa Rica considers to be inconclusive 
or non -specific results if these are not related to a false positive, and that preferably Costa  Rica 
would have sub mitted the sequence analyses it obtained, indicating the quality of the sequences 
and the assays that were carried out when the sequences were analysed.1620 
7.809.   Mexico argues that the surveillance report submitted on 1 4 September  2020 does not 
examine the tracea bility of the assays carried out, as they do not appear in the final report because 
they are reported as negative for ASBVd .1621 Mexico reiterates that the surveillance implemented by 
Costa Rica is not in accordance with the provisions of ISPM Nos. 6 and 8.1622 
7.810.   Mexico asserts that Costa Rica continues to have problems with handling the kits or 
managing the protocols to determine the pe st's presence or absence in the samples analysed, and 
that proof of this is that in Exhibit CRI -21 it mentions that, even in 2019, RT -PCR assays had to be 
repeated for 50 samples.1623 
7.811.   Mexico notes that, in its experience, this is due solely to the fact that the plant material was 
already in poor condition or phenolized, which prevented the extraction of good quality RNA and in 
sufficient quantities for the RT -PCR, and/or that the person or persons who performed the assays 
do not have enough technical expertis e to carry out that procedure . Mexico considers that, in both 
 
1612 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 4.  
1613 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 5.  
1614 Mexico's comments on Costa Rica's response to Panel question No. 146, para. 6.  
1615 Mexico's comments on Costa Rica's response to Panel question No. 147, para. 1.  
1616 Mexico's comments on Costa Rica's response to Panel question No. 147, para. 3.  
1617 Mexico's comments on Costa Rica's response to Panel question No. 147, para. 4.  
1618 Mexico's comments on Costa Rica's response to Panel question No. 148, para. 1.  
1619 Mexico's comments on Costa Rica's response to Panel question No. 148, para. 1.  
1620 Mexico's comm ents on Costa Rica's response to Panel question No. 155, para. 1.  
1621 Mexico's comments on Costa Rica's response to Panel question No. 155, para. 2.  
1622 Mexico's comments on Costa Rica's response to Panel question No. 155, para. 3.  
1623 Mexico's comments on Costa  Rica's response to Panel question No. 157, para. 1.  WT/DS524/R  
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  cases, they are errors that mean it cannot be confirmed definitively that the diagnostic test is 
sufficiently precise.1624 
7.812.   Mexico maintains that it is unclear about the process for tracing samples from the field to 
the laboratory and the time taken to carry out the assays, that the conditions in which the plant 
tissue was transported and stored are not specified, and that, while Exhibits  MEX-64 and MEX -65 
indicate how the material should be treated, there is no evidence that the samples were actually 
treated that way.1625 
7.813.   For Mexico, the problem is not the repeated testing of the sample, but rather that the 
material may have been in a poor condition, and the right thing to do would have been to  take a 
new field sample from the same tree from which the original was taken.1626 
7.814.   Costa Rica  states  that, if a specific, selective methodology is in place, which has been 
implemented correctly, and work is undertaken in accordance with good laboratory pract ices, it is 
not surprising that there are no false positives or that their frequency is low .1627 Nevertheless, 
Costa  Rica considers that the laboratory must be prepared in the event that these type of results 
are obtained, and must have the means to detect t hem and rule them out or confirm them, such as : 
using reliable positive and negative controls, repeat testing, another alternative RT -PCR method and 
sequencing.1628 
7.815.   Costa Rica maintains that it routinely applies quality control tests, names the controls used  
at each analysis stage, and states that the LAB -LDP-BM-PO-09 procedure "Quality assurance of 
molecular diagnostic methods" sets out the application, preparation, frequency, evaluation and 
corrective actions to be taken in the event of non -conformity for e ach of the controls mentioned.1629 
7.816.   Costa Rica asserts that false positives were obtained during the first sampling survey 
conducted at the national level in 2014, for which the nucleic acid hybridization technique with the 
Agdia kit was used (a technique tha t produces false positives more frequently), and that, in light of 
this, more sensitive techniques were used to confirm the results (traditional RT -PCR and subsequent 
sequencing by Macrogen, Korea), which revealed that they were false positives, as a regio n of the 
avocado tree genome was being detected instead of the ASBVd pathogen . Costa Rica adds that, 
from 2015 to 2017, the traditional RT -PCR technique was used to analyse samples, and that it used 
the real -time RT -PCR technique from 2017 onwards.1630 
7.817.   With regard to significant variation in the appearance of false positives, according to 
Costa  Rica, this is mainly due to the fact that the methods used in the first sampling survey were 
different to those adopted later for routine use . Costa Rica points out th at, based on the experience 
of the first sampling survey, and considering that the most sensitive assays for ASBVd are based 
on RT-PCR, Costa Rica implemented methods in its laboratory that used the RT -PCR technique, as a 
result of which the false positive s obtained with nucleic acid hybridization were no longer 
observed.1631 
7.818.   Costa Rica notes that it currently uses the one -step real -time RT -PCR technique in its routine 
analysis, and that only when a suspect or inconclusive result is produced is there a need t o resort 
to the traditional RT -PCR technique and sequencing, which cannot be used independently of the 
traditional RT -PCR, as it is the product of this technique that is a sequencing input .1632 Costa Rica 
summarizes the sequential use of the techniques as follows : (i) one-step real -time RT -PCR (routine), 
 
1624 Mexico's comments on Costa Rica's response to Panel question No. 157, para. 2.  
1625 Mexico's comments on Costa Rica's response to Panel question No. 157, para. 3.  
1626 Mexico's comments on Costa Rica's response to Panel question No. 157, para. 4.  
1627 Costa Rica's response to Panel question No. 146, para. 124; comments on Mexico's response to 
Panel question  No. 146, para. 62.  
1628 Costa Rica's response to Panel question No. 146, para. 124.  
1629 Costa Rica's respo nse to Panel question No. 147, paras.  127-128 (referring to Document LAB -LDP-
BM-PO-09 (2016), (Exhibit CRI -152)). 
1630 Costa Rica's response to Panel question No. 146, para. 125; response to Panel question No. 157, 
para. 157. 
1631 Costa Rica's response to Panel question No. 148, paras.  129-132. 
1632 Costa Rica's response to Panel question No. 157, para. 154.  WT/DS524/R  
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  (ii) traditional two -step RT -PCR (confirmation), and (iii)  sequencing (confirmation)1633, and adds that 
the use of each technique will depend on the result obtained with the previous technique.1634 
7.819.   Costa Rica states that the false positives in the 2014 sampling survey were, to date, the only 
false positives strictly speaking (test with a positive result on a sample that does not have the viroid), 
but that inconclusive samples had emerged in other s ampling surveys which had required 
confirmation using other diagnostic techniques .1635 Costa Rica points out  that anomalous results 
(non-specific amplifications) were obtained in the 2015 and 2019 sampling surveys, and that in both 
cases the results were sub jected to sequencing, which confirmed that the samples were negative for 
ASBVd.1636 
7.820.   Costa Rica asserts  that in 2015, for example, the UCR laboratory obtained 38 inconclusive 
results that were subjected to sequencing to confirm that the samples were negative for ASBVd, and 
that these results can be found in Annex 12 to the surveillance report submitted by Costa Rica on 
14 September  2020.1637 
7.821.   Costa Rica notes that the instances of samples that produce "non -specific amplifications" are 
not false positives as such, but are results with noise or anomalies that require confirmation . 
Costa Rica asserts that the details of these instances are properly documented in the laboratory 
records, although they do not appear in the final report, as they are reported as nega tive for ASBVd, 
so the anomaly detected and resolved during the analysis is not reflected.1638 
7.822.   Costa Rica indicates that in 2019 the Molecular Biology Laboratory of the SFE obtained some 
inconclusive non -specific results, so the analysis was repeated from th e beginning, using an 
alternative method (traditional RT -PCR) and sequencing, and it was determined that the results were 
indeed negative for ASBVd . Costa Rica asserts  that all the results may be found in Annex  20 to 
Costa  Rica's surveillance report, which  shows how some results were verified by repeating the 
real-time RT -PCR ( e.g. samples 255, 327 or 337) ; others by traditional RT -PCR ( e.g. samples 225, 
232 or 235) ; and some were subsequently verified by sequencing ( e.g. samples 252, 264 or 265).1639 
7.823.   Costa Rica asserts that it is very important that laboratories have, in addition to good 
procedures and specific and sensitive diagnostic techniques, protocols to detect non -specific and 
inconclusive results and the means to co nfirm them, and that the Molecular Biology Laboratory of 
the SFE applies the following protocol to confirm inconclusive results : partial or full repetition of the 
assay and confirmation of the result with traditional RT -PCR with Schnell primers, and the re sult is 
then verified by sequencing.1640 
7.824.   Costa Rica states  that its laboratory has several procedures that describe measures that help 
to minimize the risk of false positive or false negative results occurring.1641 
7.825.   The Panel  considers that, in order to determi ne the presence or absence of ASBVd in a 
territory, the NPPO must have scientifically sound procedures to perform laboratory diagnostic tests . 
This is supported  by ISPM No. 6, which indicates that the survey plan must include a description of 
the survey me thodology and quality management, including an explanation of the diagnostic 
procedures .1642 That ISPM further states that the NPPO should provide or ensure access to 
appropriate diagnostic services, whose characteristics include use of standard operating pr ocedures, 
where appropriate and available.1643 
 
1633 Costa Rica's response to Panel question No. 157, para. 155.  
1634 Costa Rica's response to Panel question No. 157, para. 156.  
1635 Costa Rica's response to Panel question No. 155, para. 147.  
1636 Costa Rica's response to Panel question No. 146, para. 126.  
1637 Costa Rica's response to Panel question No. 155, para. 148.  
1638 Costa Rica's response to Panel question No. 148, para. 133.  
1639 Costa Rica's response to Panel qu estion No. 148, para. 134; response to Panel question No. 155, 
para. 149. 
1640 Costa Rica's response to Panel question No. 146, para. 126.  
1641 Costa Rica's response to Panel question No. 156, para. 150.  
1642 ISPM No. 6, (Exhibit MEX -75), p. 5 -6. 
1643 ISPM No. 6, (Exhibit MEX -75), p. 7.  WT/DS524/R  
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  7.826.   With respect to Costa Rica's diagnostic procedures for ASBVd , the parties refers to 
Exhibits  CRI-12 and CRI -152. 
7.827.   Exhibit CRI -12 contains a document from the Pest Diagnostic Laboratory of the SFE entitled 
"Molecu lar detection of Avocado sunblotch viroid (ASBVd)" and approved in March  2017, that came 
into force on 2 7 March  2017, the stated objective of which is to describe the activities relating to the 
molecular diagnosis of ASBVd in avocado plant tissue using RT -PCR.1644 According to its scope, this 
procedure applies to samples of avocado plant tissue, domestic and imported, in which the presence 
or absence of ASBVd must be detected, and the matrix corresponds to avocado leaves or fruit .1645 
This procedure describes t he steps for using the real -time RT -PCR technique, and notes that an 
alternative confirmation method is the traditional two -step RT -PCR.1646 The document contains 
information on materials and equipment, reagents, storage, risks and precautions . It states that the 
use of controls in this procedure is to be carried out in accordance with the provisions of 
LAB-LDP-BM-PO-09 "Quality assurance of molecular diagnostic methods".  
7.828.   Exhibit CRI -152 contains a document from the Pest Diagnostic Laboratory of the  SFE entitled 
"Quality assurance of molecular diagnostic methods", approved on 2 2 December  2016.1647 This 
document came into force on 2 January  2017, and its stated objective is to describe quality 
assurance practices to monitor the validity of the PCR assay s of the Molecular Biology Laboratory . 
According to its scope, this document applies to all pest detection and/or identification methods 
carried out by the Molecular Biology Laboratory of the Pest Diagnostic Laboratory .1648 That procedure 
includes informatio n on the reference material, positive and negative controls, confirmatory tests, 
inter-laboratory tests, and data registration, storage and evaluation.  
7.829.   The Panel observes  that both documents contained in Exhibits CRI -12 and CRI -152 came 
into force at the b eginning of 2017 . Therefore, the Pest Diagnostic Laboratory of the SFE  has a 
diagnostic protocol that has been in force since 2017.  
7.830.   With respect to the diagnostic procedures for ASBVd in Costa Rica prior to 2017, the Panel 
analyses below Exhibits MEX -115 a nd MEX -134 and Annexes 4 and 12 of Costa Rica's response to 
the Panel's information request.  
7.831.   Exhibit MEX -115 contains a memorandum from the CIBCM of the UCR on the samples from 
the 2014 sampling survey, stating that the samples were prepared immediately an d the RNA was 
spotted onto the membranes following the protocol and recommendations of Agdia Inc. (Indiana, 
United  States ). It is stated that the membranes were sent to Agdia Inc. for hybridization with the 
ASBVd -specific probe, using the diagnostic servic es of Agdia Inc.  
7.832.   Exhibit MEX -134 contains a memorandum from the CIBCM of the UCR regarding the samples 
that tested positive or inconclusive following the analysis carried out by Agdia Inc. The memorandum 
states that total RNA was extracted from the samples  submitted by SFE officials using liquid nitrogen 
and the RNeasy Plant Mini Kit (QIAGEN) in accordance with the manufacturer's recommendations, 
and that the positive control RNA was obtained from ASBVd -infected avocado leaves kept in its 
freezer at -70°C. The memorandum also states that the reverse transcription (RT) and the 
polymerase chain reaction (PCR) were carried out using the protocols and the pair of viroid -specific 
ASBV1 and ASBV2 primers designed by Schnell et al. (Plant Dis. 81:1023 -1026, 1997); and that the 
RT was carried out using the Sensiscript RT Kit (QIAGEN) and the ASBV1 primer. It adds that the 
RT-PCR product was analysed in agarose gel. It further states that all amplification products obtained 
were sent to Macrogen Korea to be purified and sequenced directly, and that the sequences obtained 
for each of the avocado samples were compared using the BLASTn algorithm with the sequences 
available in the GenBank.  
7.833.   Based on the information contained in Exhibits MEX -115 and MEX -134 relati ng to the 
evidence gathered in 2014, the Panel observes that the first sampling survey was conducted with 
the support of the CIBCM of the UCR, using the diagnostic services of Agdia Inc (Indiana, 
United  States) and Macrogen Inc. (Korea). The record contain s no further information regarding the 
 
1644 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86). 
1645 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86), p. 1.  
1646 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86), pp. 3 and 9 -13. 
1647 Document LAB -LDP-BM-PO-09 (2016), (Exhibit CRI -152). 
1648 Document LAB -LDP-BM-PO-09 (2016), (Exhibit CRI -152), p. 1.  WT/DS524/R  
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  recommendations of Agdia Inc., or the diagnostic protocols of Agdia Inc. and Macrogen Inc., and the 
methodology applied by the CIBCM of the UCR is presented as a recount , together with  the 
presentation of the results.  Costa Rica's response to the Panel's information request of 
3 August  2020 provides some explanation of the CIBCM's methods.1649 
7.834.   Annex 4 to Costa Rica's response to the Panel's information request contains a memorandum 
from the Pest Diagnostic Laboratory of the SFE concerning 151 of the 244 samples from the 2015 
2016 sampling survey. The memorandum states that the samples were analysed in the Molecular 
Biology Section of the Pest Diagnostic Laboratory of the SFE, and that the RT -PCR technique was 
used to dete rmine the presence/absence of the viroid in the samples. It indicates that the methods 
available at the laboratory were used, and it describes the application of the methods to the samples 
in question.1650 
7.835.   Annex 12 contains a CIBCM memorandum describing the diagnostic process for the other 
177 samples from the 2015 -2016 sampling survey. As in the CIBCM memorandum of 2014 
(Exhibit  MEX-134), this memorandum describes how total RNA was extracted from the samples, 
how the RT and PCR were carried out, and how the RT-PCR product was analysed. The description 
is similar to that of the diagnostic process for the 25 inconclusive samples from 2014 in 
Exhibit  MEX-134, the only difference being that another kit was used for the RT.  
7.836.   Based on the information in Annexes 4 and 12 relating to the evidence gathered in 
2015-2016, the Panel notes that the CIBCM of the UCR provided support for 177 of the samples, 
and that the remaining 151 were analysed by the Pest Diagnostic Laboratory of the SFE. Regarding 
the analysi s by the CIBCM of the UCR, as in 2014, no protocol is presented, and the methodology 
applied by the CIBCM of the UCR is presented as a recount , together with the presentation of the 
results. With regard to the Pest Diagnostic Laboratory of the SFE, the met hodology applied is also 
set out as a recount , together with the presentation of the results, but the record contains no 
diagnostic protocol for ASBVd applicable in 2015 -2016 giving instructions on the methodology to 
follow when conducting the diagnostic t est for ASBVd.  
7.837.   In light of the foregoing, the Panel cannot rule on the availability of the ASBVd diagnostic 
protocols of the laboratories of the CIBCM of the UCR, Agdia Inc. (Indiana, United  States ) and 
Macrogen Inc. (Korea), which tested the samples in 20 14 and 2015 -2016. With regard to the Pest 
Diagnostic Laboratory of the SFE, which carried out part of the diagnostic testing in 2015 -2016, the 
Panel notes that the methodology applied is presented as a recount , together with the presentation 
of the results  of the 2015 -2016 sampling survey, but it cannot confirm the existence of a protocol 
like that contained in Exhibit CRI -12 which came into force as of 2017.  
7.838.   With regard to the scientific rigour of the techniques used , Costa Rica asserts that it now 
uses the one -step real -time RT -PCR technique for its routine analyses, with the possibility of 
resorting to a traditional RT -PCR and sequencing if the result is suspect or inconclusive and requires 
confirmation.  
7.839.   The document on molecular detection of the A vocado sunblotch viroid (ASBVd) provides 
support for Costa Rica's statement that real -time RT -PCR is used routinely and traditional RT -PCR 
for confirmation .1651 The results confirmation section mentions that this can be done by the full or 
partial repeat of the assay, a traditional RT -PCR, or sequencing of the PCR product obtained.1652 
 
1649 Costa Rica's response to the Panel's information request of 3  August  2020, pp. 23 -24. 
1650 It states: RNA was extracted using the Maxwell 16 MDx Instrument together with the Maxwell 16 
LEV Plant RNA Kit (Promega AS1430). The "RNasin Plus RNase Inhibitor" (Promega, N2611) was added to the 
RNA extracts. The quantity and quality of the genomic RNA extracts obtained were verified using 
spectrophotometry. The reverse transcription was carried out using the "Maxima First Strand cDNA Synthesis 
Kit for RT -qPCR" (Thermo Scientific, K1642), and specific primers developed by Schnell et al., 1997 and Taq 
DNA recombinant (Thermo Scientific, EP0402) were used for the PCR. In addition, a real -time PCR was 
conducted on the cDNA from all the samples to amplify the plant cytochrome oxidase (COX), according to Li et 
al., 2006, which functions as an internal control.  … One positive control and one blank control (a no template 
control (NTC)) were included at each stage of the process (RNA extraction, RT and PCR) and for each batch. 
(Costa Rica's response to the Panel's information request of 3  August  2020, Annex 4, p. 2). 
1651 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86), pp. 3 and 9 -13. 
1652 Document LAB -LDP-BM-PT-06 (2017), (Exhibits CRI -12 and CRI -86), pp. 15 -16. WT/DS524/R  
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  7.840.   The Panel recalls that the 2014 sampling survey samples were sent to Macrogen Inc.  (Korea ) 
for sequencing . The Panel also notes that in the memorandum on the results of the 2015 -2016 
sampling survey, submitted together with Costa Rica's response to the Panel's request for 
information, reference is made to the shipment of samples to Macrogen Inc. (Korea) for 
sequencing .1653 In addition, the information on the 2019 sampling survey ref ers to the use of 
sequencing for verification, and that the samples in question were sent for sequencing, although no 
mention is made of where that sequencing was carried out.1654 
7.841.   The virology expert Ricardo Flores Pedauyé state s that the criterion accepted today for 
identifying a pathogen is that two independent techniques (for example, molecular hybridization and 
RT-PCR, in the case of ASBVd) must be applied to the same samples, that the results of both 
techniques must coincide, and that the assays must inc lude positive and negative controls .1655 
Mr Flores Pedauyé notes  that the RT -PCR technique is undoubtedly the most sensitive, but also, 
because of its very nature, the most prone to generate false positives and false negatives.1656 
7.842.   Schnell et al.  (1997), which  is in the record, states that RT -PCR is a sensitive detection 
method, and that using a simplified extraction procedure and ASBVd -specific RT -PCR assay results 
in a detection estimated to be accurate for 85 % of the assays.1657 
7.843.   In light of the comments by Mr Flores Pedauyé and of Schnell et al. (1997), the Panel notes 
that using RT -PCR is a reliable detection method, and that the practice generally accepted by the 
scientific community is to use two independent techniques.  
7.844.   The Panel notes that Mexico questions the scientific rigour of Costa Rica's diagnostic protocol  
and provides in Exhibit MEX -221 a technical opinion issued by the National Health, Food Safety and 
Agri-food Quality Service (SENASICA), which is  a comparison b etween its ASBVd diagnostic protocol 
and that of Costa Rica . The Panel does not consider it appropriate to evaluate the scientific rigour of 
Costa  Rica's diagnostic protocol on the basis of the comparison with Mexico's protocol . The Panel does 
not consider  that Mexico has demonstrated, on the basis of scientific evidence, and not merely  by 
comparison with its own protocol, that Costa Rica's diagnostic protocol is not legitimately  scientific . In 
light of the foregoing, the Panel will not analyse in detail th e work of Costa Rica's laboratories, 
addressing topics such as the use of other techniques, the handling of kits or protocols or the state of 
the samples subjected to analysis.  
7.845.   Consequently, neither does the Panel consider it necessary to analyse in detail  the evidence 
contained in Exhibits CRI -90, CRI -154, and CRI -155, which consist of the following:  
a. Exhibit CRI -90 contains a document issued by the Unit for Planning, Quality Control and 
Internal Checks, entitled "Procedure for the control of documents and records", which was 
approved in November  2018 and came into force on 2 9 November  2018, and the stated 
objective of which is to set out the requirements for the systematic and standardized 
preparation of documents of the SFE's quality management system, as well as defining 
the steps to be taken to ensure the proper identification, storage, protection, retrieval, 
retention and disposal of quality records .1658 According to its scope, this procedure applies 
to all documents, prepared by the SFE, of the quality ma nagement system based on the 
INTE/ ISO 9001 standard.1659 
b. Exhibit CRI -154 contains a document issued by the Central Pest Diagnostic Laboratory of 
the SFE, entitled "General work practices in the Molecular Biology Laboratory", which was 
approved in August  2015 and entered into force on 2 4 August  2015, and the stated objective 
of which is to describe key elements of organization of work and general rules to be followed 
in the Molecular Biology Laboratory to reduce the risks of contamination and work -related 
 
1653 Costa Rica's response to the Panel's information request of 3 August  2020, p. 157, Annex 12 . 
1654 Final report on 2019 sampling survey, (Exhibit CRI -21), p. 5; Costa Rica's response to the Panel's 
information request of 3 August  2020, p. 305, Annex 20.  
1655 Ricardo Flores Pedauyé's response to Panel question No. 79 for the experts.  
1656 Ricardo Flores Pedauyé's response s to Panel questions Nos. 54 and 89 for the experts.  
1657 Schnell et al. (1997), (Exhibit MEX -68), p. 1026.  
1658 Document PCCI -GC-PO-01 (2018), (Exhibit CRI -90). 
1659 Document PCCI -GC-PO-01 (2018), (Exhibit CRI -90), p. 1.  WT/DS524/R  
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  accidents, and to maintain a harmonious and disciplined environment .1660 According to its 
scope, this document applies to the day -to-day work of all staff working in the Molecular 
Biology Section of the Central Pest Diagnostic Laboratory.1661 
c. Exhibit CRI -155 contains a document issued by the Pest Diagnostic Laboratory of the SFE, 
entitled "Resuspension of primers/probes and general control of aliquots", which was 
approved in February  2016 and came into force on 1 March  2016, and the stated objective 
of whi ch is to describe the steps to be taken to resuspend (dissolve) and dilute primers 
and probes, as well as for the traceability of reagent working aliquots in general .1662 
According to its scope, this procedure applies to all primers and probes and the preparation 
of aliquots in general that are used in the Molecular Biology Section of the Pest Diagnostic 
Laboratory.1663 
7.846.   With regard to the traceability of samples and the presentation of results , Mexico states that 
it is unclear about the process for tracin g samples from the field to the laboratory and the time taken 
to carry out the assays, that the conditions in which the plant tissue was transported and stored are 
not specified, and that, while Exhibits MEX -64 and MEX -65 indicate how the material should b e 
treated, there is no evidence that the samples were actually treated that way .1664 Mexico is of the 
opinion that Costa Rica has failed to submit specific exhibits that allow samples to be traced in the 
case of non -specific amplifications, which is relevant  considering that the presence of dimeric forms 
of ASBVd have been reported in the scientific literature .1665 Costa Rica, for its part , asserts  that the 
details of instances of non -specific amplifications are properly documented in the laboratory records, 
although they do not appear in the final report, as they are reported as negative for ASBVd, so the 
anomaly detected and resolved during the analysis is not reflected.1666 
7.847.   The Panel analysed in detail the issue of the traceability of samples and the presentati on of 
results in paragraphs 7.7 52 to 7.7 92 above.  
7.848.   With respect to the specific results of the diagnostic tests , the Panel recalls that 16 samples 
were reported as positive for ASBVd and five were suspect in the first sampling survey in 2014 . 
Costa Rica states  that, following a shipment from the Molecular Biology Laboratory of the UCR to 
Korea for the samples to be sequenced, those samples proved to be negative for ASBVd.1667 
7.849.   The expert Pablo Cortese considers that, in these situations, extreme ri gour must be 
exercised in the treatment of potentially positive samples and the most sensitive techniques must 
be used to determine whether they were indeed false positives, and that samples should be taken 
again from the trees and their neighbours, and th e sites where those instances were detected should 
be monitored regularly .1668 The expert Fernando Pliego Alfaro notes that if a positive result is 
obtained using  RT-PCR, it should be confirmed via other molecular techniques such as hybridization 
or sequenci ng.1669 The expert Ricardo Flores Pedauyé is of the view that it would have been useful 
to map the trees and to analyse them again regularly.1670 
7.850.   In accordance with the statements of Pablo Cortese and Ricardo Flores Pedauyé on false 
positives, the Panel consid ers that samples should be taken again from the trees that provided 
samples with initially positive or suspect results and their neighbours, and that those trees should 
be analysed regularly . With the evidence in the record, it is not possible to confirm t hat samples 
were taken again from those trees, or if the trees were assayed regularly . These actions would 
increase the scientific soundness of a determination of absence of ASBVd.  
 
1660 Document LAB -LDP-BM-PO-02 (2015), (Exhibit CRI -154). 
1661 Document LAB -LDP-BM-PO-02 (2015), (Exhibit CRI -154), p. 1.  
1662 Document LAB -LDP-BM-PO-07 (2016), (Exhibit CRI -155). 
1663 Document LAB -LDP-BM-PO-07 (2016), (Exhibit CRI -155), p. 1.  
1664 Mexico's comments on Costa Rica's response to Panel question No. 157, para. 3.  
1665 Mexico's comments on Costa Rica's response to Panel question No. 148, para. 1.  
1666 Costa Rica's response to Panel question No. 148, para. 133.  
1667 Costa Rica's first written submission, paras.  3.21 and 5.208 (citi ng 
Memorandum  CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134)). 
1668 Pablo Cortese's response to Panel question No. 85 for the experts.  
1669 Fernando Pliego Alfaro's response to Panel question No. 85 for the experts.  
1670 Ricardo Flores Pedauyé's re sponse to Panel qu estion No. 86 for the experts.  WT/DS524/R  
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  7.851.   As noted in section 7.3 above, the false positives arouse certain doubts . The Panel recalls 
that, on the basis of the documents pertaining to the false positives, Ricardo Flores Pedauyé state s 
that there are marked discrepancies between the results of the two techniques used, which gave 
rise to doubts . Mr Flores Pedauyé said he w as surprised by this marked  discrepancy, which was not 
consistent with his own experience of this type of analysis .1671 However, the Panel does not consider 
that the evidence in the record is sufficient to conclude that Costa Rica's initially positive or sus pect 
results from the first sampling survey in 2014 were not false positives.  
7.852.   The three other sampling surveys carried out since 2014 to date have not indicated the 
presence of any other false positives, although Costa Rica notes that the sampling surveys of 
2015-2016 and 2019 did yield anomalous results (non -specific amplifications) .1672 With regard to 
the samples that, according to Costa Rica, produced non -specific amplifications, the Panel notes that 
the results submitted by Costa Rica, together with its r esponse to the Panel's request for information, 
have pointed to samples with inconclusive results.  
7.853.   The results of the  2015-2016 sampling survey indicate that 38 samples with unexpected 
results were sent to Macrogen Inc. (Korea) for sequencing.1673 
7.854.   According to the table of results from the 2019 sampling survey, the results of 67  samples 
were verified by repeating the real -time RT -PCR, using a traditional RT -PCR with Schnell et al. 
primers, or using sequencing, including assays for which the RNA extraction was repeated .1674 
It indicates that, for 3 of these 67 assays, the results were verified both through traditional RT -PCR 
with the primers designed by Schnell et al. and through sequ encing .1675 The verification of these 
2019 sampling survey results is also mentioned in the 2019 sampling survey final report .1676 That 
document states that in all instances where some type of verification was carried out, the result was 
confirmed as negative for ASBVd . However, for 15 samples marked in the table as samples that 
were also analysed by traditional RT -PCR (and three of which were sent for sequencing), 
it recommends continuing regular surveillance  and sampling to corroborate the phytosanitary statu s 
and rule out the presence of ASBVd, and even repeating the assays in a second laboratory to confirm 
those negative results.1677 
7.855.   The Panel notes that the samples that produced non -specific amplifications are included in 
Annex 9 . However, the Panel also note s that it is not possible, from the evidence in the record, to 
confirm that the 2019 recommendation has been followed to date . That recommendation is the same 
as that of the experts with regard to instances of false positives, namely , to continue regular 
surveillance  and sampling of cases with anomalous results from the 2015 -2016 and 2019 sampling 
surveys . As mentioned above, these actions would increase the scientific soundness of a 
determination of absence of ASBVd.  
7.856.   On the basis of all the foregoing, the Panel concludes that : (i) it cannot rule on the availability 
of the ASBVd diagnostic protocols of the laboratories of the CIBCM of the UCR, Agdia Inc. (Indiana, 
United  States ) and Macrogen Inc. (Korea), which tested the samples in 2014 and 2015 -2016; the 
Pest Diagnostic Laboratory of the SFE has a diagnostic protocol that has been in force since 2017; 
and the methodology applied is presented as a recount , together with the presentation of the results  
of the 2015 -2016 sampling survey, but it canno t confirm that a protocol was in force in 2015 -2016 
in the Pest Diagnostic Laboratory of the SFE ; (ii) Costa Rica's false positive or suspect results from 
the first sampling survey in 2014 arouse certain doubts, but the evidence in the record is not 
suffic ient to conclude that the initially positive or suspect results were not false positives ; (iii) it is 
not possible to confirm with the evidence in the record that the trees that led to false positives or 
suspect results were sampled again, or if they were tested regularly, which would increase the 
scientific soundness of a determination of absence of ASBVd ; and (iv)  although the samples that 
produced non -specific amplifications are given in the results of the respective surveys and in Annex 
9, it is not pos sible to confirm from the evidence in the record that, to date, the 2019 
recommendation to continue regular surveillance  and sampling of cases with anomalous results in 
 
1671 Ricardo Flores Pedauyé's response to additional Panel question No. 1 for Ricardo Flores Pedauyé.  
1672 Costa Rica's response to Panel question No. 146, para. 126.  
1673 Costa Rica's response to the Panel's information request of 3 August  2020, pp. 157 -158, Annex  12. 
1674 Costa Rica's response to the Panel's information request of 3 August  2020, pp. 292 -305, Annex  20. 
1675 See Nos. 252, 264 and 265. (Costa Rica's response to the Panel's information request of 
3 August  2020, pp. 292-305, Annex 20).  
1676 Final report on 2019 sampling survey, (Exhibit CRI -21), p. 5.  
1677 Final report on 2019 sampling survey, (Exhibit CRI -21), p. 5.  WT/DS524/R  
- 245 - 
  the 2015 -2016 and 2019 sampling surveys has been followed, which would increase the sci entific 
soundness of a determination of absence of ASBVd.  
7.4.5.1.3   Conclusion on the determination of freedom from  ASBVd in Costa Rica  
7.857.   In its analysis of the determination of freedom  from ASBVd in Costa Rica, the Panel found 
the following flaws that affect the reliability of the determination of freedom from  ASBVd in 
Costa  Rica, and hence its scientific legitimacy:  
a. The information gathered by Costa Rica through bibliographical sources is n ot sufficient 
for Costa Rica to substantiate the absence of ASBVd in its territory . Costa Rica's assertions 
in its response to the Panel's information request of 3 August  2020 on its other general 
surveillance activities are also insufficient for Costa Ric a to substantiate the absence of 
ASBVd in its territory . Therefore, the general surveillance activities carried out by 
Costa  Rica are not sufficient to enable Costa Rica to substantiate the determination that 
its territory  is free of ASBVd.  
b. There is a lack  of specific information and documentation on the sampling survey design 
and the monitoring plan, especially for the first two sampling surveys carried out prior to 
Reports ARP -002-2017 and ARP -006-2016.  
c. The s ampling surveys' coverage centred  on the main areas of production fails to  properly 
asses s the risk of other areas where there is a probability of  the disease be ing detected . 
That is to say, Costa Rica's sampling surveys, which underpin the determination that its 
entire territory is free o f ASBVd, are not sufficiently representative considering the risk.  
d. Although Costa Rica's formula is scientifically valid, Costa Rica uses data on the planted 
area that differ from those reported officially . As a result, for the sampling surveys 
conducted a fter Reports ARP -002-2017 and ARP -006-2016, the planted area used for the 
calculations resulted in a lower number of samples.  
e. There is no evidence that a protocol with a complete  and specific methodology for ASBVd 
sampling existed that was followed in all the sampling surveys conducted to determine the 
status of ASBVd in Costa Rica.  
f. Costa Rica has failed to demonstrate that it has conducted the sampling of wild and 
backyard trees that it claims to have conducted, and does not have a methodology to be 
applie d for the sampling of wild and backyard trees . This is particularly relevant given the 
concerns expressed by Costa Rica about the diversion from intended use and spontaneous 
germination . This failure to include and systematize the sampling of wild and back yard 
trees within the ASBVd surveillance system in Costa Rica constitutes a sampling error by 
Costa Rica that affects the representativeness of the samples.  
g. The Panel cannot confirm from the information in the record that, with regard to ASBVd, 
Costa Rica carries out  the regular surveillance in nurseries that it claims to carry out . The 
lack of surveillance in nurseries would be another sampling error by Costa Rica that affects 
the representativeness of the samples.  
h. The Panel cannot confirm with the informa tion in the record that, with respect to ASBVd, 
Costa Rica carries out surveillance at waste disposal sites . Considering Costa  Rica's 
concerns regarding spontaneous germination, the lack of surveillance at waste disposal 
sites would be another sampling err or by Costa Rica that affects the representativeness of 
the samples . 
i. Although the presentation of results and the traceability of samples have been clarified 
over the course of the proceedings, complete traceability of the samples is lacking . 
j. It is not pos sible to confirm with the evidence in the record that the trees that led to false 
positives or suspect results in 2014 and anomalous results in 2015 -2016 and 2019 were 
sampled again, or if they were tested regularly.  WT/DS524/R  
- 246 - 
  7.858.   The Panel acknowledges the efforts that  Costa Rica made between 2014 and 2019 to carry 
out the sampling and diagnostic tests in order to determine the absence of ASBVd in its territory . 
Notwithstanding the foregoing, the Panel considers that a specific surveillance system for a particular 
pest in a particular crop must bring together the necessary elements that would provide it with the 
requisite systematicity and sensitivity so that its results and conclusions are reliable and legitimately 
scientific.  
7.859.   Throughout its analysis, the Panel has note d that there is a lack of specific information and 
documentation on the sampling survey design and the monitoring plan, a lack of a protocol with a 
complete  and specific methodology for ASBVd sampling, a failure to include and systematize the 
sampling of w ild and backyard trees within the ASBVd surveillance system in  Costa  Rica, among 
other aspects that affect the methodological nature of the ASBVd -specific surveillance in Costa Rica . 
The Panel has also noted that sampling surveys' coverage centred  on the main areas of production 
fails to  properly assess the risk of other areas where there is a probability  of the disease be ing 
detected, and that Costa Rica used data on the planted area t hat differ from those reported officially, 
among other deficient aspects . 
7.860.   Owing to the flaws found in the course of the analysis, this Panel is of the view that the 
specific surveillance system for ASBVd in Costa Rica does not bring together the necessary elements 
that would provide it with the requisite systematicity and sensitivity so that its results and 
conclusions are reliable and legitimately scientific.  
7.861.   In light of the foregoing, the Panel concludes that Costa Rica's assertion in 
Reports  ARP-002-2017 and ARP -006-2016 that it was determined that its territory  is free of ASBVd , 
which forms part of the basis for its risk assessment, lacks sufficient reliability , and, therefore , cannot 
be considered legitimately scientific . Moreover , the confirmation of t he determination that ASBVd is 
absent in Costa Rica on the basis of sampling surveys conducted subsequent to  Reports 
ARP-002-2017 and ARP -006-2016 (the 2017 -2018 and 2019  surveys ) also lacks sufficient reliability  
to be considered legitimately scientific.  
7.4.5.2   Whether the pest or disease, as well as the associated potential biological and 
economic consequences, were identified  
7.862.   Mexico  submits that Costa Rica's PRAs do not clearly define the identity of ASBVd and the 
disease it causes since they refer to sunblotch disease and ASBVd interchangeably, and they do not 
clearly distinguish the nature, characteristics, effects, symptoms and risks of each of the three 
variants of ASBVd .1678 In Mexico's view, this omission meant that the PRAs did not specifically assess 
the probability of entry, establishment and spread, and the associated risk with respect to each of 
the variants, or with respect to the disease .1679 As part of its arguments under Article  5.2 of the 
SPS Agreement on other relevant factors that, in Me xico's view, Costa Rica had failed to take into 
account in its risk assessment, Mexico reiterates that Costa Rica failed to distinguish between ASBVd 
and sunblotch disease.1680 
7.863.   Costa Rica  claims that Mexico has failed to demonstrate that the PRAs have not id entified 
pests whose entry, establishment or spread a Member wants to prevent within its territory, as well 
as the associated potential biological and economic consequences.1681 
7.864.   Costa Rica submits that the risk assessment began by identifying the PRA area (C osta Rica), 
the pest (ASBVd) and the pathways (fresh avocado fruit for consumption and plants for planting) . 
Costa Rica states  that there is no confusion in the PRAs since the pest under analysis is ASBVd, that 
the titles of the PRAs are unequivocal in tha t regard, and that they expressly state that ASBVd is a 
regulated pest . Costa Rica adds that the viroid (ASBVd) and the disease it causes (sunblotch) are 
distinct concepts, and that the distinction between them in the PRAs is clear from the context .1682 
Costa Rica also submits that Mexico does not explain where the obligation to exhaustively identify 
 
1678 Mexico's first written submission, paras.  261-262. 
1679 Mexico's first written submission, para. 263.  
1680 Mexic o's first written submission, para. 477 (referring to Mexico's first written submission, 
paras.  259-263).  
1681 Costa Rica's first written submission, para. 5.91.  
1682 Costa Rica's first written submission, para. 5.81.  WT/DS524/R  
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  the variants of a pest, beyond identifying the pest itself, arises, and that, in any event, the PRAs do 
record the existence of variants of ASBVd and their diffe rent effects.1683 
7.865.   The Panel  reiterates that, in accordance with the first step suggested by the Appellate  Body, 
a risk assessment of the kind relevant to this dispute must identify the pest or disease whose entry, 
establishment or spread a Member wants to prevent within its territory, as well as the potential 
biological and economic consequences associated with the entry, establishment or spread of that 
pest or disease.1684 
7.866.   The Panel notes that Report ARP -002-2017 on the importation of fresh avocado fruit for 
consumption from Mexico identifies the pests on which the risk assessment was conducted in the 
list of potential quarantine pests associated with fresh avocado fruit from Mexico, under the section 
on the i dentification of a PRA area .1685 The list includes Avocado sunblotch viroid (ASBVd) . 
Report  ARP-002-2017 goes on to describe ASBVd and even mentions its variants .1686 In the 
conclusion of initiation section, Report ARP -002-2017 further states that the quaranti ne pests 
identified1687 and associated with the identified pathway (fresh avocado fruit) are Avocado sunblotch 
viroid  and the insects Maconellicoccus hirsutus , Heilipus lauri  and Conotrachelus aguacatae .1688 The 
risk analysis in question is entitled risk analy sis of Avocado sunblotch viroid , (fresh fruit from 
Mexico).1689 
7.867.   For its part, ARP -006-2016 is entitled "Pest Risk Analysis for Avocado sunblotch viroid  
(ASBVd) for fresh avocado fruit ( Persea americana  Mill.) for consumption and avocado plants 
(Persea  americ ana Mill.) for planting" . In the Stage 1 . Initiation section, ARP -006-2016 states that, 
being a PRA, ASBVd was identified at this stage as the pest to be analysed.1690 
7.868.   The Panel  further notes that, as the experts explain, the viroid (ASBVd) is the pathogenic 
agent or causal agent of the disease (sunblotch), and the disease is the result of the plant -pathogen 
interaction .1691 In their datasheet, Reports ARP -002-2017 and ARP -006-2016 both state that 
sunblotch is caused by the ASBVd viroid.1692 
7.869.   On this basis, the Panel considers the explanation in Reports ARP -002-2017 and 
ARP-006-2016 to be sufficient to identify the pest or disease whose entry, establishment or spread 
Costa Rica wants t o prevent within its territory.  
7.870.   Mexico  also asserts that the PRAs merely mention the biological and economic 
consequences of introducing ASBVd into Costa Rica, without adducing any evidence to support the 
claim, and without addressing the potential biologi cal and economic consequences of the 
establishment and spread.1693 
7.871.   Mexico submits that Costa Rica listed potential biological and economic consequences, but 
not all of them are pertinent and relevant . In Mexico's view, Costa Rica should have referred only to  
the potential biological and economic consequences of the entry, establishment and spread of ASBVd 
and its disease, which meant setting out  the reasons why Costa Rica considered such biological and 
economic consequences to be possible .1694 Mexico asserts th at Article  5.1 appears to require a list 
of only the biological and economic consequences for which there is real and objectively justifiable 
 
1683 Costa Rica's first written submission, paras.  5.82 and 5.83.  
1684 Appellate Body Report, Australia – Salmon , para. 121. (emphasis original) See also 
Appellate  Body Reports, Japan – Agricultural Products II , para. 112; and Japan – Apples , para. 196.  
1685 ARP-002-2017, (Exhibit MEX -84), pp. 10-11. 
1686 ARP-002-2017, (Exhibit MEX -84), pp. 12 -13. 
1687 The Panel notes that, in the initiation stage of Report ARP -002-2017, Costa Rica refers to ASBVd as 
a quarantine pest. However, ISPM No. 11, which, as the Panel explains, is a relevant risk assessment 
technique for this dispute, states that the aim of the initiation stage is to identify the pests and pathways which 
are of quarantine concern or a pest that has the potential to be a quarantine pest. (ISPM No. 11, 
(Exhibit  MEX-77), pp. 6 and 9).  
1688 ARP-002-2017, (Exhibit MEX -84), p. 15.  
1689 ARP-002-2017, (Exhibit  MEX-84), p. 34.  
1690 ARP-006-2016, (Exhibit MEX -85), p. 14.  
1691 Response s of Pablo Cortese and Ricardo Flores Pedauyé  to Panel question No. 29 for the experts.  
1692 ARP-002-2017, (Exhibit MEX -84), p. 62; ARP -006-2016, (Exhibit MEX -85), p. 46.  
1693 Mexico's first wri tten submission, paras.  264-266. 
1694 Mexico's first written submission, para. 268.  WT/DS524/R  
- 248 - 
  evidence of potential occurrence, rather than all hypothetically possible consequences .1695 Mexico 
adds that Costa R ica failed to identify in a sufficiently clear and detailed manner the potential 
biological and economic consequences of the entry, establishment and spread of ASBVd and its 
disease.1696 
7.872.   Costa Rica  submits that, despite its alleged failure to identify the biological and economic 
consequences, Mexico found them in the PRAs and repeated them verbatim .1697 Costa Rica adds that 
all the consequences listed in the PRAs are likely consequences associated with the entry, 
establishment and spread of ASBVd, as described in the scientific literature .1698 In Costa  Rica's view, 
Mexico has not identified any biological or economic consequence mentioned in Costa  Rica's PRAs 
that cannot be attributed to ASBVd if it were to enter Costa Rica.1699 
7.873.   Costa Rica adds that ASBVd is considered a quarantine pest, given that it is of potential 
economic importance and is absent from Costa Rican territory.1700 
7.874.   The Panel  notes that Reports ARP -002-2017 and ARP -006-2016 both contain a section on 
the evaluation  of potential economic consequenc es, under which is a list of what were considered 
potential economic and environmental consequences .1701 In fact, Mexico itself acknowledges that 
Costa Rica listed the potential biological and economic consequences.1702 
7.875.   The Panel considers the statement made by Costa Rica in its Reports ARP -002-2017 and 
ARP-006-2016 sufficient to find, according to the step suggested by the Appellate Body, that the 
risk assessment has identified  the potential biological and economic consequences associated with 
the entry, establishment or spread of ASBVd.  
7.876.   The Panel will assess below whether, in accordance with the second step suggested by the 
Appellate Body, Costa Rica has evaluated the associated potential biological and economic 
consequences identified.  
7.4.5.3   Whether  the likelihood  of pests' or diseases' entry, establishment or spread, as 
well as the associated potential biological and economic consequences, were evaluated  
7.4.5.3.1   Introduction to the section  
7.877.   The Panel will now discuss whether Costa Rica evaluated the likeliho od of entry, 
establishment or spread of ASBVd, as well as the associated potential biological and economic 
consequences.  
7.878.   As explained, the Panel will begin its analysis by addressing the methodology in 
Manual  NR-ARP-PO-01_M -01 that was used in the preparat ion of the risk assessment contained in 
Reports ARP-002-2017 and ARP -006-2016.  
7.879.   Before proceeding to analyse the various factors and elements of each step of the risk 
assessment contained in Reports ARP -002-2017 and ARP -006-2016, the Panel will address diversion 
from intended use and spontaneous germination as separate topics, since these are two fundamental 
premises of Reports ARP -002-2017 and ARP -006-2016.  
7.880.   The Panel will then examine the various factors and elements of each step of the risk 
assessment, i.e. the evaluation of the likelihood  of entry, the evaluation of the likelihood  of 
establishment, the evaluation of the likelihood  of spread, and the evaluation of the associated 
potential biological and economic consequences.  
 
1695 Mexico's first written submission, paras.  269-270. 
1696 Mexico's first written submission, para. 271.  
1697 Costa Rica's first written submission, para. 5.84.  
1698 Costa Rica's first written submission, para. 5.85.  
1699 Costa Rica's first written submission, para. 5.86.  
1700 Costa Rica's first written submission, para. 5.87.  
1701 ARP-002-2017, (Exhibit MEX -84), pp. 40 -41; ARP -006-2016, (Exhibit MEX -85), pp. 21 -22. 
1702 Mexico's first written  submission, para. 268.  WT/DS524/R  
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  7.4.5.3.2   The risk assessment  methodology in Manual NR -ARP-PO-01_M -01 
7.881.   Reports ARP-002-2017 and ARP -006-2016 state that the methodology used is based on 
Manual NR -ARP-PO-01_M -01.1703 The Panel therefore considers it necessary to begin its analysis by 
discussing this methodology.  
7.882.   Mexico  points out that, although the manual follows a similar structure to that 
recommended by ISPM Nos. 2 and 11, it omits some relevant sections that had they  been considered 
would have allowed SFE officials to arrive at conclusions that would have benefited int ernational 
trade in products that are not suspected pathways for the entry, establishment and spread of pests, 
as fresh avocados for consumption are.1704 
7.883.   Mexico states in its comments on one of the responses from the expert Robert Griffin that 
the fact Costa Rica simplifies in its manual how it makes judg ements  on the evidence, the quality of 
the evidence, the uncertainty, and the acceptability of risk is an indirect means by which Costa  Rica 
attempts to justify ex ante  a "simplified" evaluation.1705 
7.884.   Mexic o submits that, by simplifying its manual, Costa Rica attempts to reduce an evaluation 
that should be based on coherent and objective reasoning to a mere list .1706 In Mexico's view, this 
is evident in light of the following : (i) the assessor did not analyse elements that the PRA denoted 
as "uncertainty", even though that instrument attributes critical weight to diversion from intended 
use; (ii) there is no evidence to suggest that the risk assessor's reasoning is substantiated by the 
scientific evidence prese nted in the PRAs ; (iii) the phytosanitary measures in dispute are not 
sufficiently justified in relation to the actual risk associated with the import pathway for fresh Hass 
avocado fruit for consumption, even by the scientific evidence presented in the PR As; (iv) the risk 
assessor's work was curtailed ; (v) the possibility of arriving at a coherent and objective conclusion 
regarding the risks of the likely entry, establishment and spread of ASBVd was eliminated ; 
(vi) courses of action in the event of a risk  were not identified ; (vii) existing scientific evidence 
relating to deviation of intended use is ignored;(viii) the simplified procedure did not allow the risk 
assessor to detect the lack of information regarding diversion from intended use so that specif ic 
evidence could have been sought or statistical information gathered that would have enabled the 
assessor to reach a coherent and objective conclusion ; and (ix)  cases where the opinion of experts 
in the field is sought are not considered.1707 
7.885.   Mexico points  out that, by referring to a simplified manual in the preparation of its PRA, 
Costa  Rica eliminated the possibility for the risk assessor to carry out a coherent and objective 
evaluation .1708 In Mexico's view, the possibility of reaching a coherent and objec tive conclusion 
regarding the risks arising from the likely entry, establishment and spread of ASBVd in Costa  Rican 
territory via fresh avocados for consumption is eliminated, and, since no such evaluation exists, the 
implementation of restrictive and unne cessary measures such as those at issue is completely 
arbitrary.1709 
7.886.   In Mexico's opinion, the simplification of the manual has been shown to have significant 
consequences .1710 Mexico states  that, as the expert Robert Griffin pointed out, this simplification 
eliminated the possibility for the risk analysts to carry out a coherent and objective evaluation and, 
moreover, that the reduction to a mere checklist removes the flexibility for the analyst to reflect the 
epidemiology of this particular organism .1711 Mexico adds that the PRA is generally lacking and is so 
generic that it does not contain elements which would allow analysts to resolve specific issues 
regarding the pest that is the subject of the dispute.1712 
 
1703 ARP-002-2017, (Exhibit MEX -84), p. 3; ARP -006-2016, (Exhibit MEX -85), p. 3.  
1704 Mexico's first written submission, para. 217.  
1705 Mexico's specific comments on the experts' responses to Panel question No. 137 for the experts.  
1706 Mexico 's response to Panel question No. 160, para. 114.  
1707 Mexico's response to Panel question No. 160, para. 114.  
1708 Mexico's response to Panel question No. 160, para. 115.  
1709 Mexico's response to Panel question No. 160, para. 116.  
1710 Mexico's comments on Costa Ric a's response to Panel question No. 161, para. 1.  
1711 Mexico's comments on Costa Rica's response to Panel question No. 161, para. 2 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 26).  
1712 Mexico's comments on Costa Rica's response to Panel question No. 161, para. 3 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 27 and 36).  WT/DS524/R  
- 250 - 
  7.887.   Costa Rica  submits that the manual, adopted on a voluntary basis, helps improve 
transparency as to how the SFE analyses pest risks, and ensures that the risk analyses take into 
account the relevant factors in ISPM No. 11.1713 
7.888.   Costa Rica states that Mexico has failed to demonstrate that the fact a risk assessment is 
simplified would be in any way relevant to compliance with Article  5.1 of the SPS  Agreement . In 
Costa Rica's view, it is important for the phytosanitary measure to be based on a risk assessment 
and f or it to be appropriate, taking into account the criteria under Articles 5.2 and 5.3, 
and Costa  Rica's PRA is more than appropriate and provides the basis for the implementation of the 
measures in question.1714 
7.889.   According to Costa Rica, its manual closely ref lects the factors in ISPM No. 11, which does 
not mention aspects, such as opinions on the evidence or the quality of the evidence, aspects on 
which Mexico bases its criticism of the "simplification" of the manual . Costa Rica asserts that Mexico 
argues that  Costa Rica's manual should be based on ISPM No. 11, but even when the manual closely 
reflects the content of ISPM No. 11 and it is not considered relevant to include aspects not in ISPM 
No. 11, in Mexico's opinion, the manual, and therefore the PRA, suffe r from being "simplified".1715 
7.890.   Costa Rica notes that, at the beginning of the dispute, Mexico's main argument was that 
neither the manual nor the PRA were based on ISPM No. 11, which contains standards and guidelines 
on how to conduct a PRA, and that Mexico argued that neither Costa Rica's manual nor its PRA took 
into account the factors and criteria referred to, principally, in ISPM No. 11.1716 
7.891.   Costa Rica contends that, in light of the experts' comments, Mexico seems to have softened 
its initial position by no w claiming that the problem is not so much that the manual and the PRA are 
not based on ISPM No. 11, but that Costa Rica eliminated the possibility for the risk analyst to carry 
out a coherent and objective evaluation . Costa Rica notes that Mexico appears to argue that, since 
Costa Rica's manual and PRA stick too closely to ISPM No. 11, the risk assessor lost the flexibility to 
carry out an evaluation more specific to the case of ASBVd, even though this would have meant 
deviating from any given guideline in  ISPM No. 11.1717 
7.892.   The Panel  recalls that the Manual for conducting qualitative pest risk analyses by entry 
pathway (Manual NR -ARP-PO-01_M -01)1718, of 10 May 2016, prepared by the UARP of the SFE, was 
the instrument used as a guide for preparing Reports ARP-002-2017 and ARP -006-2016.  
7.893.   As described in detail in the factual aspects section, the manual defines the risk factors to 
be considered at each stage of the analysis and what ratings the risk assessor should give to each 
of these factors depending on whether the risk is high, medium , low or negligible (in very specific 
instances), according to the situation described in the manual itself.  
7.894.   The Panel sought the experts' advice on the process for preparing Report ARP -002-2017, 
including on the manual.  
7.895.   The expert Robert Griffin remarks th at the design of Costa Rica's manual describes the 
elements of the assessment using qualitative criteria to establish a rating system . However, 
Mr Griffin points out that there are judgements that must be made on the evidence, the quality of 
the evidence, the uncertainty, and the acceptability of risk, and that Costa Rica attempts to simplify 
these judgements with criteria used in its manual . He describes the process as mechanical and 
connected to the criteria that Costa Rica has developed for each element of the assessment in its 
internal guidelines, and explains that this has the advantage of transparency, consistency, and 
expediency but causes it to lose some of the value and flexibility of judgement in the analysis, since 
the process fails to provide fle xibility for expert judgements by the analysts or account for situations 
that may not fit with the guideline criteria .1719 Mr Griffin adds that the problem with the approach 
used by Costa  Rica is that the conclusions of the pest risk assessment stage of Repo rt ARP -002-2017 
 
1713 Costa Rica's second written submission, para. 3.26.  
1714 Costa Rica's res ponse to Panel question No. 160, para. 165.  
1715 Costa Rica's response to Panel question No. 160, para. 166.  
1716 Costa Rica's comments on Mexico's response to Panel question No. 160, para. 74.  
1717 Costa Rica's comments on Mexico's response to Panel question No. 1 60, para. 75.  
1718 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104). 
1719 Robert Griffin's response s to Panel questions Nos. 135 and 137 for the experts.  WT/DS524/R  
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  are the result of a process that occurs in the manual, and it is the sum of subjective values for fixed 
criteria rather than a process of analysis that is explained in the PRA.1720 
7.896.   In light of the foregoing, the Panel considers the use of a f ixed format, derived  from Manual 
NR-ARP-PO-01_M -01, to be a flaw in both Report ARP -002-2017 and Report ARP -006-2016. The use 
of the fixed format established in the manual causes two problems that will be analysed below : (i) it 
limits the flexibility of ju dgement in the analysis, which leads to the absence of  the risk assessor's 
reasoning ; and (ii)  it removes the flexibility to address ASBVd -specific issues, which affects the 
appropriateness of the risk assessment to the circumstances.  
7.4.5.3.2.1   Reasoning of the risk  assessor  
7.897.   The Panel recalls that a panel's role involves assessing "whether the reasoning of the risk 
assessor is objective and coherent, that is, whether the conclusions find sufficient support in the 
scientific evidence relied upon".1721 
7.898.   The Appellate Body  has noted that the reasoning employed by the risk assessor plays an 
important role in revealing whether or not the requisite rational or objective relationship exists 
between the SPS measures and the risk assessment and the scientific evidence .1722 In other words, 
it is through the reasoning of the risk assessor that it should be possible to understand whether the 
risk assessment is based on the scientific evidence and whether in turn the proposed SPS measures 
are based on the scientific evidence and on  the risk assessment.1723 
7.899.   The expert Robert Griffin confirms the importance of bearing in mind the reasoning of the 
risk assessor . According to him, a good risk analysis requires judgement on the part of the 
analyst .1724 Mr Griffin notes that there is little i n Costa Rica's PRA to explain how the evidence is 
interpreted to impact on ratings and support management decisions, because Costa  Rica uses a 
mechanical process connected to the criteria it has developed for each element of the assessment 
in its internal guidelines.1725 
7.900.   Furthermore, the experts Robert Griffin and Pablo Cortese agree on the importance of the 
experts' judgement, stating that ISPM No. 11 contains guidelines rather than step -by-step 
instructions . Mr Griffin points out that it would not be practi cal to create a standard for risk analysis 
that will cover every situation ; and that the expertise of analysts should be relied upon to understand 
what is important for the risk in any given situation, and to consider those elements and give them 
their pro per weight and their proper analysis .1726 Mr Griffin adds that ISPM No. 11 contains the 
primary concepts and the basic elements of risk analysis, but there is no template or format, or a 
specific approach for any given commodity or pest.1727 
7.901.   The expert Pablo Cortese agrees with Mr Griffin, and points out that the standards are 
guidelines, and not procedural manuals that explain how to proceed step by step .1728 Mr Cortese is 
of the view that a PRA is not merely a question of making a checklist ; it requires an in -depth analysis 
by a skilled person, and that constitutes the expert's judgement.1729 
7.902.   The Panel notes that Reports ARP -002-2017 and ARP -006-2016 offer little in the way of 
explanations to support the risk analyst's conclusions, including thos e related to the qualitative 
estimate of probability . This is especially apparent for elements where the justification for the 
conclusion is the probability criterion in Manual NR -ARP-PO-01_M -01 (i.e. a transcription in the 
reports of the descriptor from M anual NR -ARP-PO-01_M -01), and for elements for which the manual 
itself presents as a guide the descriptor corresponding to the probability attributed to this factor 
 
1720 Robert Griffin's response to Panel question No. 143 for the experts.  
1721 Appellate Body Report, Australia – Apple s, para. 215. See also Appellate Body Reports, 
US/Canada  – Continued Suspension , para. 591.  
1722 Appellate Body Report, Australia – Apples , para. 225.  
1723 Appellate Body Report, Australia – Apples , para. 227.  
1724 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 26.  
1725 Robert Griffin's response to Panel question No. 135 for the experts.  
1726 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, p. 13.  
1727 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, p. 14.  
1728 Pablo Cortese, transcript of the Panel's meeting with th e parties and the experts, day 3, p. 14.  
1729 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, p. 49.  WT/DS524/R  
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  without any further explanation (for example, "high" probability for high risk) . The lack of reasoning 
means that certain hypotheses affecting the calculation of probabilities are taken as fact.  
7.903.   The lack of reasoning by the risk assessor with respect to the use of scientific evidence also 
causes problems of clarity and credibility regardin g the manner in which the scientific sources 
presented have been used to make certain assertions and reach conclusions on the probability 
values, casting doubt on the assessment's objectivity and coherence.  
7.904.   Therefore, the lack of reasoning by the risk asse ssor owing to the use of the fixed format 
established by Manual NR -ARP-PO-01_M -01 limits the scope and quality of the analysis . It cannot 
be determined how the scientific evidence has been used nor how the conclusions on risk have been 
reached, if the risk  assessor does not set out his or her reasons for using such evidence and drawing 
such conclusions . As a result, no determination can be made as to whether the risk assessor's 
reasoning is objective and coherent if this reasoning is not reflected in the ri sk assessment.  
7.4.5.3.2.2   Flexibility to address ASBVd -specific issues  
7.905.   The risk analysis expert, Robert Griffin, further notes that reducing the risk analysis to a 
checklist removes the flexibility for the analyst to reflect the epidemiology of this particular organi sm, 
which is unique and has a significant effect on the risk, and that the consequence of this is that it 
reduces the defensibility of the risk analysis and makes it more vulnerable to challenge .1730 Mr Griffin 
points out that Costa Rica uses a fixed format for a generic PRA that is likely to be very appropriate 
for many commodities, but that lacks provision for changes that would adapt it to the needs of a 
particular pest, such as ASBVd.1731 
7.906.   Mr Griffin explains that Costa Rica has a generic assessment that use s a generic process 
which substantially addresses the issues and provides substantial evidence to support the 
conclusions . However, he points out that the epidemiology of ASBVd is unusual and there is no 
provision in the process to allow the PRA to be adju sted in order to account adequately for this . 
Mr Griffin considers this to be a serious issue, but that the PRA generally is probably effective for 
most commodities and pests, except that it does not enable the analyst to address special issues.1732 
7.907.   Mr Griffin is concerned about the flexibility with which the manual would be applied and the 
freedom analysts would have to adjust and to make their analyses fit the organisms and the 
situations that they are facing.1733 
7.908.   Considering Mr Griffin's opinion regarding th e lack of flexibility, the Panel notes that, 
although a fixed or generic format could work for certain pests and commodities, that format does 
not allow the risk assessor to address issues specifically related to the pest in question, in this case 
ASBVd.  
7.909.   The Panel considers that the fixed format might be inadequate to conduct a proper 
assessment of the risk concerned, and could lead to errors in the evaluation of the factors for analysis 
and calculations of the probability of entry, establishment and spread  of ASBVd . As will be explained 
below, the methodology of Manual NR -ARP-PO-01_M -01 does not facilitate assessment of the pest's 
specific characteristics, such as rate of reproduction and spread specific to ASBVd, which were not 
given sufficient considerati on in Reports ARP -002-2017 and ARP -006-2016, despite their impact on 
probability.  
7.4.5.3.3   Diversion from intended use and spontaneous germination in Reports 
ARP-002-2017 and ARP -006-2016  
7.4.5.3.3.1   Introduction to the section  
7.910.   Costa Rica refers to the following concerns regar ding fresh avocado fruit for consumption : 
(i) the potential for a discarded avocado seed to germinate naturally in Costa  Rican territory, 
 
1730 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 26.  
1731 Robert Griffin , transcript of the Panel's meeting with the parties and the experts, day 2, p. 24.  
1732 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 36.  
1733 Robert Griffin, transcript of the Panel's meeting with the parties and  the experts, day 2, p. 51.  WT/DS524/R  
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  maintaining that it is a seed that arrives perfectly viable for germination and in a territory with ideal 
climatic con ditions for avocado trees (referred to by the parties as spontaneous germination and 
sometimes as unintended diversion from intended use) ; and (ii)  the cultural practice in Costa  Rica 
of planting the seeds of consumed avocado fruits, which, according to Co sta Rica, tends towards the 
use of the Hass variety as rootstock (referred to by the parties as diversion of use or diversion from 
intended use).1734 
7.911.   The issues of diversion from intended use and of spontaneous germination have been 
discussed extensively wit h the parties and experts throughout this dispute . As will be detailed in 
sections 7.4.5.3.3.2 and 7.4.5.3.3.7 below, these are cross -cutting issues that permeate the 
assessment of the probability of entry, establishment and spread of ASBVd in Reports  ARP-002-2017 
and ARP -006-2016. Given their significance in this dispute, the Panel deems it appropriate to address 
diversion from intended use and spontaneous germination in a separate section, before analysing 
the various elements and factors of t he assessment of the probability of entry, establishment and 
spread of ASBVd in Reports ARP -002-2017 and ARP -006-2016.  
7.912.   The Panel will first analyse the consideration given in Reports  ARP-002-2017 and 
ARP-006-2016 to diversion from intended use, referring i n that regard to the intentional use of seeds 
from fresh avocados for consumption for propagation purposes, and will then turn to the 
consideration in the reports on spontaneous germination, referring in that regard to natural 
germination without human ass istance of discarded seeds of fresh avocados for consumption . In this 
connection, the Panel will address the significance of diversion from intended use and of spontaneous 
germination in Reports ARP -002-2017 and ARP -006-2016, the importance of their docume ntation, 
the scientific evidence on these issues referred to in Reports ARP -002-2017 and ARP -006-2016, as 
well as the scientific evidence presented in that regard during the proceedings but not included in 
these reports.  
7.4.5.3.3.2   The significance of diversion from intended use in Reports ARP -002-2017 and 
ARP-006-2016  
7.913.   Mexico  submits that fresh avocados imported for consumption are not, in themselves, the 
pathway for the entry, establishment or spread of the viroid given that, in any event, it would be a 
subsequent oc currence, this is , the diversion from intended use or the discarding of the seed, a 
factor that was not considered by Costa Rica in its PRAs.1735 
7.914.   Mexico asserts that Costa Rica deals with diversion from intended use formally in two 
sections of its PRA concerning the probability of transfer to a suitable host and the probability of 
spread after establishment, even when this issue permeates its PRA, and without explaining 
fundamental issues such as the existence of such diversion from intended use, how it  occurs, 
whether it is a practice, and for how long or the extent to which it has been carried out.1736 
7.915.   Mexico claims that the risk assessment makes the unsubstantiated assumption that all 
avocados imported from Mexico contain the viroid in its symptomless f orm, and that all avocados 
can be subject to diversion from intended use .1737 Mexico asserts that there are no quantitative or 
qualitative data in the PRA on the probability of entry, establishment and spread of ASBVd arising 
from the diversion from intended  use of imported avocados from which the seed is extracted for 
planting and propagation purposes, or seeds that germinate spontaneously in natural areas, in 
backyards, in gardens, on farms, at waste disposal centres, in rubbish dumps and at landfill sites.1738 
7.916.   Mexico also submits that the PRAs do not provide any analysis regarding the calculation of 
the probability of entry, establishment or spread of ASBVd through diversion from intended use .1739 
Mexico confirms that diversion from intended use is mentioned in  the probability table in 
Report  ARP-002-2017 as "high 3", but this result is not based on scientific evidence, because the 
 
1734 Costa Rica's first written submission, paras.  5.120 and 5.122; response to Panel question No. 169, 
para. 199. 
1735 Mexico's second written submission, para. 124.  
1736 Mexico's first written submission, para. 231.  
1737 Mexico's first wr itten submission, para. 232; second written submission, para. 124.  
1738 Mexico's response to Panel question No. 161, para. 119.  
1739 Mexico's response to Panel question No. 163, para. 135.  WT/DS524/R  
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  same PRA notes that there are no statistics indicating the quantity of imported fruits from which the 
seed is extracted for propagation purposes.1740 
7.917.   Mexico adds that, as diversion from intended use and spontaneous germination play a 
dominant role in the risk analysis, any errors and omissions with regard to these elements affect the 
reliability of the risk analysis and the proba bility calculation.1741 
7.918.   Mexico submits that, although Costa Rica's PRAs supposedly focus on the pathway of 
imported fresh avocados for consumption, in fact, greater emphasis was placed on the risk arising 
from diversion from intended use, but they do not con tain specific evidence on the problem that 
Costa Rica is seeking to address in its PRAs . Mexico asserts that Costa Rica made no effort 
whatsoever to calculate this uncertainty on the pretext of it being a difficult practice to document ; 
and that, by qualif ying this factor as an issue of uncertainty, it simply did not provide any evidence 
whatsoever on diversion from intended use.1742 
7.919.   As part of its claims under Article  5.2 of the SPS  Agreement  on other relevant factors that, 
in Mexico's view, Costa Rica faile d to take into account in its risk assessment, Mexico submits that 
Costa Rica should have taken into account the particular circumstances of the risk it is seeking to 
regulate, but the probability of which it fails to examine, in other words, the risk aris ing from the 
diversion from intended use of seeds from avocados imported for consumption . Mexico reiterates 
that the PRA appears to assume that ASBVd in its symptomless form is present in all imported 
avocados, that all their seeds, once the avocados are c onsumed, will be viable and subject to 
diversion from intended use, and that, through unassisted germination, ASBVd will be established 
and spread throughout Costa Rican territory . Mexico contends, however, that this has not occurred 
in more than 20 years of trade, and the particular circumstances of the case require a determination 
of how probable it is that imported avocados are symptomless, on the one hand, and, on the other, 
that the seeds of these avocados remain viable and are subject to diversion fro m intended use, 
whether intentional or unintentional . Mexico adds that, by failing to calculate the probability 
associated with these essential elements, the risk analysis is vitiated, because it forms the basis for 
SPS measures that seek to address the ri sk of contagion arising from diversion from intended use 
without examining the probability of that.1743 
7.920.   Costa Rica  states that it took into account diversion from intended use as a factor that 
increases the probability of establishment of ASBVd.1744 
7.921.   Costa Rica  points out that diversion from intended use played a major and decisive role in 
the evaluation of the elements of the analysis and in the calculation of the probability of entry, 
establishment and spread of ASBVd, and that the risk analyst unequivocally r ecorded the importance 
attached to diversion from intended use on a number of occasions .1745 Costa Rica adds that diversion 
from intended use was the key factor that led to the weighting of a medium  (2) probability for the 
 
1740 Mexico's response to Panel question No. 163, para. 137.  
1741 Mexico's comments on Costa Rica's response to Panel question No. 163, para. 3.  
1742 Mexico's response to Panel question No. 164, para. 144.  
1743 Mexico's first written submission, paras.  473–474. 
1744 Costa Rica's second written submission, para. 3.39.  
1745 Costa Rica 's response to Panel question No. 163, para. 180. Costa Rica points out that the risk 
analyst observed, for example, that: (i)  the practice of using Hass rootstock for planting "increases the 
potential for the use of seeds from avocado fruit imported for c onsumption" (p. 6 of the PRA); (ii)  "the seeds of 
consumed fruit (CONSULSANTOS 2017), waste from wholesale markets and avocado processors can be a 
ready source of avocado seed of unknown properties. Bearing this in mind, this situation must be assessed in 
this PRA, in order to manage the risk appropriately … and to mitigate the risk to an [appropriate] level" (p.  6 of 
the PRA); (iii)  "persons who consume good quality avocado and have space to cultivate this fruit are likely to 
plant the seed (CONSULSANTOS 2 017)" (p. 7 of the PRA); (iv)  "there are currently records of expert testimony 
(CONSULSANTOS 2017) that demonstrate diversion from intended use …" (p. 8 of the PRA); (v)  "taking into 
account that the seed and skin are not consumed, the potential of such wa ste to introduce and subsequently 
spread quarantine pests was assessed. In addition, diversion from intended use was considered because, given 
the quantity of fruit that is imported, the NPPO would be hard -pressed to be able to track it after importation 
(IRSS 2017) and the viable seed borne therein (Spalding et al. 1976)" (p. 8 of the PRA). (Costa Rica's 
response to Panel question No. 163, para. 181).  WT/DS524/R  
- 255 - 
  probability of establishment with r espect to cultivation practices  and control measures in Costa 
Rica.1746 
7.922.   The Panel  observes that Reports ARP -002-2017 and ARP -006-2016 state that Costa  Rica 
has regulations governing commercial nurseries, including avocado nurseries, which establish a 
nursery  registry and set out the procedures to follow1747, but that not all producers buy their 
propagating material (seeds and cuttings) from nurseries covered by the regulations ; instead, most 
of them produce their own seedlings or scions on site.1748 
7.923.   According to Reports ARP -002-2017 and ARP -006-2016, a range of different propagation 
techniques are used, for example direct seeding (the plants are subsequently grafted), germinating 
the seed in containers (then transplanting the seedlings to the field and grafting them) and sowing 
seeds in bags (grafted in the nursery and then transplanted) .1749 Reports ARP -002-2017 and 
ARP-006-2016 also state that, in the cantons of León Cortés, Tarrazú and Dota, the avocado seeds 
of fruits that fall on the ground are left t o germinate in the field by themselves . When producers find 
them, they tend the plants and then graft them to obtain a new, low -cost plant.1750 
7.924.   Reports ARP -002-2017 and ARP -006-2016 mention that the use of plants derived from 
stock -scion combinations is a pr actice recognized by the fruit industry1751; and that, in the case of 
Costa Rica, one of the cultivars used successfully as a rootstock in the main avocado -producing area 
is the Hass variety .1752 Reports ARP -002-2017 and ARP -006-2016 add that the practice of u sing 
Hass rootstock for planting avocados increases the possibility that seeds from avocado fruit imported 
for consumption will be used.1753 
7.925.   Report ARP -002-2017 states that the cultural practices referred to create a situation in which 
the producer may use seeds from outside his or her farm ; and that the seeds of fruit consumed1754, 
and waste from wholesale markets and avocado processors can be a ready source of avo cado seeds 
of unknown quality .1755 Report ARP -006-2016 also states that the cultural practices referred to (use 
of Hass rootstock and the sale of all the fruits) create a situation in which the producer is forced to 
purchase seeds from outside his or her far m1756; and that the seeds of fruits consumed1757, and 
waste from wholesale markets and avocado processors can be a ready source of avocado seed, as 
well as illicit nurseries1758 of unknown quality.1759 
7.926.   Reports ARP -002-2017 and ARP -006-2016 state that this situation should be assessed in the 
PRA, to be able to manage the risk appropriately, given that, according to the reports, the risk is 
clear in the 2016 paper "Diversion from intended use"1760, and to mitigate the risk to a level in lin e 
with Costa Rica's appropriate level of protection .1761 Reports ARP -002-2017 and ARP -006-2016 add 
that people who consume good -quality avocados and have space to cultivate this fruit are likely to 
 
1746 Costa Rica's response to Panel question No. 163, para. 182; comments on Mexico's response to 
Panel quest ion No. 162, para. 87; comments on Mexico's response to Panel question No. 163, para. 88.  
1747 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing Nursery regulations (2007) , (Exhibit CRI -30)); ARP -
006-2016, (Exhibit  MEX-85), p. 5 (citing Nursery regulations (2007) , (Exhibit CRI -30)). 
1748 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1749 ARP-002-2017, (Exhibit MEX -84), p. 5 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), pp. 5 –6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1750 ARP-002-2017, (Exhibit MEX -84), pp. 5 –6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhib it MEX -85), p. 6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1751 ARP-002-2017, (Exhibit MEX -84), p. 6; ARP -006-2016, (Exhibit MEX -85), p. 6.  
1752 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing CONSULSANTOS (2010), (Exhibit MEX -119); and 
Garbanzo Solís (2011) , (Exhibit MEX -125)); ARP -006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS 
(2010), (Exhibit MEX -119); and Garbanzo Solís (2011), (Exhibit MEX -125)). 
1753 ARP-002-2017, (Exhibit MEX -84), p. 6; ARP -006-2016, (Exhibit MEX -85), p. 6.  
1754 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1755 ARP-002-2017, (Exhibit MEX -84), p. 6.  
1756 ARP-006-2016, (Exhibit MEX -85), p. 6.  
1757 ARP-006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1758 ARP-006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1759 ARP-006-2016, (Exhibit MEX -85), p. 6.  
1760 ARP-002-2017, (Exhibit MEX -84), p. 6 (citing IPPC Secretariat , "Diversion from intended use" 
(2016), (Exhibit MEX -124)); ARP -006-2016, (Exhibit MEX -85), pp. 6 –7 (citing IPPC Secretariat , "Diversion 
from intended use" (2016), (Exhibit MEX -124)). 
1761 ARP-002-2017, (Exhibit MEX -84), p. 6; ARP -006-2016, (Exhibit MEX -85), p. 7. WT/DS524/R  
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  plant the seed1762; and that not all the population has the pu rchasing power to buy Hass avocados, 
which are more expensive.1763 
7.927.   Reports ARP -002-2017 and ARP -006-2016 state that "[t]here are currently records of expert 
testimony (CONSULSAN TOS 2017) that demonstrate diversion from intended use, however, to date, 
no stat istics are available on the quantity of imported fruit from which the seed is extracted for 
propagation purposes" .1764 Reports ARP -002-2017 and ARP -006-2016 refer to the paper "Diversion 
from intended use" (2016), and include the following quote:  
The practic e of diversion from intended use (DFIU) may be unintentional, or done with 
knowledge of its illegal status . It is rarely documented or reported, but anecdotal 
evidence suggests it is occurring in most parts of the world . It is considered most serious 
when products designated for consumption (including grain), time -limited decorative 
purposes (such as cut flowers and branches) or processing instead end up being used 
for planting, so that any associated pests may be introduced into the open environment 
unchec ked.1765 
7.928.   Reports ARP -002-2017 and ARP -006-2016 state that, in the probability tables in the section 
on the intended use of fresh fruit for consumption, the Costa Rican authorities, on the understanding 
that the fruit is imported with the intended use of cons umption, will assign it corresponding values 
in the PRA . Reports ARP -002-2017 and ARP -006-2016 clarify, however, tha t the potential of this 
waste to introduce and subsequently spread quarantine pests is analysed taking into account that 
the seed and skin a re not consumed1766; and that diversion from intended use was considered 
because, given the quantity of fruit that is imported, the NPPO would be hard -pressed to be able to 
track it after importation1767, and the viable seed borne therein.1768 
7.929.   In the section on the probability of entry of ASBVd in Reports ARP -002-2017 and 
ARP-006-2016, the probability of transfer to a suitable host was deemed to be high, determined, 
inter alia , as follows : (i) the probability related to dispersal mechanisms, including vectors to allow 
movement from the pathway to a suitable host was deemed to be medium , after it was determined 
that the dispersal mechanisms from the pathway to a host are through growing a plant from the 
seed of symptomless fruit, because the pest is syst emic in the tissue1769; that the generation of 
rootstock from fruit from infected trees (including from the Hass cultivar) can significantly increase 
the incidence of ASBVd1770; and that it does not require vectors, but bees can carry the pollen and 
infect the  fruit that is pollinated1771; (ii) the probability related to the intended use of the commodity 
was deemed to be medium , after it was determined that its use is consumption1772; (iii) the 
probability related to risks from by -products and waste was deemed to b e high, after it was 
determined that the waste of fresh avocado fruit are the skins and seeds ; that, as it contains a viable 
 
1762 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2017), (Exhibit MEX -118)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1763 ARP-002-2017, (Exhibit MEX -84), p. 7; ARP -006-2016, (Exhibit MEX -85), p. 7 . 
1764 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing CONSULSANTOS (2017), (Exhibit MEX -118)); 
ARP-006-2016, (Exhibit MEX -85), p. 11 (citing CONSULSANTOS (2017), (Exhibit MEX -118)). 
1765 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing IPPC Secretariat , "Diversion from intended use" 
(2016), (Exhibit MEX -124)); ARP -006-2016, (Exhibit MEX -85), p. 11 (citing IPPC Secretariat , "Diversion from 
intended use" (2016), (Exhibit MEX -124)). 
1766 ARP-002-2017, (Exhibit MEX -84), p. 8; ARP -006-2016, (Exhibit MEX -85), p. 11. 
1767 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing IPPC Secretariat , "Diversion from intended use" 
(2016), (Exhibit MEX -124)); ARP -006-2016, (Exhibit MEX -85), p. 11 (citing IPPC Secretariat , "Diversion from 
intended use" (2016), (Exhibit MEX -124)). 
1768 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing Spalding et al. (1976), (Exhibit MEX -133)); 
ARP-006-2016, (Exhibit MEX -85), p. 11 (citing Spalding et al. (1976), (Exhibit MEX -133)). 
1769 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 18 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
1770 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
1771 ARP-002-2017,  (Exhibit MEX -84), p. 37 (citing Desjardins et al. (1979), pp. 14 –15,  
(Exhibit MEX -60)); ARP -006-2016, (Exhibit MEX -85), p. 18 (citing Desjardins et al. (1979), pp. 14 –15,  
(Exhibit MEX -60)). 
1772 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 18.  WT/DS524/R  
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  seed, there is a risk of pest introduction through the waste1773; and that the germination of a seed 
from a symptomless fruit would i ntroduce the pest into the PRA area.1774 
7.930.   In the section on the probability of establishment of ASBVd in Reports ARP -002-2017 and 
ARP-006-2016, the probability related to the availability of suitable hosts, alternate hosts and 
vectors in the PRA area was deemed to be low, after it was determined that the viroid has been 
found exclusively in Persea americana  Mill.1775 Reports ARP -002-2017 and ARP -006-2016 note that, 
in the case of seeds that germinate from imported avocado fruit, either because the waste (seed) 
was disposed of in a place suitable for seed germination or because it was diverted from its intended 
use, the pest would already b e systemic in the host plant's tissue.1776 
7.931.   Likewise, in the section on the probability of establishment of ASBVd in 
Reports  ARP-002-2017 and ARP -006-2016, the probability related to cultivation practices  and 
control measures was deemed to be medium , after it  was determined, inter alia , that the 
documented cultivation practices  in Costa Rica would affect the spread of the pest, given that 
producers are known to prepare their own seedbeds and do not turn to commercial nurseries, that 
pruning or harvesting tools  are not disinfected between trees, that replanting orchards is extremely 
expensive and that nurseries, which are subject to government regulations, are not the main source 
of material planted in the field1777; and that the foregoing is related to diversion from intended use, 
that is, the practice of using seeds from imported Hass avocados to grow new plants despite the fact 
that those avocados had originally been imported for human consumption.1778 
7.932.   In the section on the probability of spread of ASBVd in Costa Rica, Reports ARP -002-2017 
and ARP -006-2016 state, inter alia , that the probability related to the intended use of the product 
was deemed to be medium , after it was determined that the intended use of the product is for 
consumption.1779 
7.933.   In light of the foreg oing, the Panel notes that the introductory section of 
Reports  ARP-002-2017 and ARP -006-2016 refers to the fact that cultural practices create a situation 
that should be assessed in the PRA, and that diversion from intended use  was considered . 
The sections  on probability of entry, establishment and spread include these considerations explicitly 
in some elements (for example, dispersal mechanisms, cultivation practices  and control measures 
and the availability of suitable hosts, alternate hosts and vectors i n the PRA area) and implicitly in 
other elements (for example, risk from by -products and waste, and intended use of the product).  
7.934.   In this Panel's view, considering how Reports ARP -002-2017 and ARP -006-2016 address 
topics related to diversion from intended use in both their introductory section and in the assessment 
of the elements of probability, and as Costa Rica confirms (by noting that diversion from intended 
use played a key and decisive role in assessing the elements of the analysis and in calculating the 
probability of entry, establishment and spread of ASBVd), there is no doubt that diversion from 
intended use is an important premise of the risk assessment carried out by Costa Rica, which 
permeates the assessment of the probability of entry, establish ment and spread of ASBVd in 
Reports  ARP-002-2017 and ARP -006-2016.  
7.935.   The Panel considers diversion from intended use to be a key aspect of the risk assessment, 
to which Costa Rica attaches great importance in assessing some elements of the analysis and in 
calculating the probabilities . If diversion from intended use of fresh avocados for consumption were 
not taken into consideration, it would appear that Costa Rica would have significantly fewer concerns, 
or maybe even none at all, regarding the entry, esta blishment and spread of ASBVd via the pathway 
of fresh fruit imported for consumption in relation to cultivated areas and backyards.  
 
1773 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 18.  
1774 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), pp. 18 –19 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
1775 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Horne (1934), (Exhibit CRI -138)); ARP -006-2016, 
(Exhibit  MEX-85), p. 19 (citing Horne (1934), (Exhibit CRI -138)). 
1776 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 19 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
1777 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit  MEX-85), pp. 19 –20 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1778 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 20.  
1779 ARP-002-2017, (Exhibit MEX -84), p. 40; ARP -006-2016, (Exhibit MEX -85), p. 21.  WT/DS524/R  
- 258 - 
  7.4.5.3.3.3   The importance of documenting diversion from intended use in 
Reports  ARP-002-2017 and ARP -006-2016  
7.936.   Mexico  submits that the practice of diversion from intended use should be documented in 
the PRA, especially because Costa Rica presents diversion of intended use as an argument for 
increasing the risk and bases its analysis on diversion from intended use and spontaneous 
germinati on.1780 According to Mexico, Costa Rica failed to evaluate the uncertainty arising from 
diversion from intended use due to cultural practices and spontaneous germination, such that the 
assessment cannot be categorized as reliable or accurate .1781 Mexico adds t hat the lack of scientific 
evidence should not be justified simply on the grounds of uncertainty, particularly if the alleged risk 
is based precisely on this factor.1782 
7.937.   Mexico notes that the risk assessment does not consider data related to uncertainty, and  
that the experts pointed out that Costa Rica should have documented the practice of diversion from 
intended use in its risk assessment, which confirms that the mere mention of the practice does not 
equal compliance with Article  5.1 of the SPS  Agreement  or the relevant international standards.1783 
7.938.   Mexico asserts that Costa Rica's PRAs do not contain an analysis of diversion from intended 
use, which is a practice identified in the PRAs as the main risk that the implementation of the 
disputed measures seeks to prevent, and that Costa Rica does not document it as a factor of 
uncertainty . In Mexico's view, although Costa Rica stated that diversion from intended use is the 
"backbone" of risk assessment, the PRAs do not contain information on diversion from intended  
use.1784 
7.939.   Mexico considers that Costa Rica assigned fundamental value to diversion from intended use 
as a cultural practice and as regards spontaneous germination . However, the analysis in its PRAs 
does not reflect this concern, but instead gives a pretext f or regarding this factor as an issue of 
uncertainty.1785 
7.940.   Costa Rica  asserts that intentional diversion from intended use, in other words, the practice 
of using avocado seeds to grow new plants despite the fact that those avocados had originally been 
purchase d for human consumption, is a cultural  practice documented by CONSULSANTOS in 2010 
and 2017 and in the 2019 study  on cultural practices in sowing  and managing avocado seeds in 
Costa Rica .1786 According to Costa Rica, several reports confirm that the practice  of diversion from 
the intended use of avocado seeds exists and is common in Costa Rica.1787 
7.941.   Costa Rica points out that, because the practice of diversion from intended use is difficult to 
document accurately, no statistics are yet available indicating the q uantity of imported fruit from 
which the seed is extracted for propagation purposes ; however, the practice of using the Hass variety 
as rootstock is a factor that increases the probability of diversion from intended use of seeds of 
imported Hass avocados .1788 Costa Rica adds that the practice of using Hass rootstock increases the 
probability of diversion from intended use of seeds of consumed Hass avocados.1789 
 
1780 Mexico's specific comments on the experts' responses to Panel questions Nos. 107, 108, 111  
and 113 for the experts.  
1781 Mexico's specific comments on the experts' responses to Panel question No. 95 for the experts.  
1782 Mexico's response to Panel question No. 161, para. 118.  
1783 Mexico's response to Panel question No. 163, para. 139.  
1784 Mexico's response to Panel question No. 161, para. 117.  
1785 Mexico's response to Panel question No. 163, para. 134.  
1786 Costa Rica's first written submission, para. 5.130 (referring to CONSULSANTOS (2010 ), 
(Exhibit  MEX-119); and CONSULSANTOS (2017), (Exhibit MEX -118)); second written submission, para. 3.39 
(citing CONSULSANTOS (2017), (Exhibit MEX -118); and Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019), (Exhibit CRI -44)). 
1787 Costa Rica's response to Panel question No. 14, para. 2.  
1788 Costa Rica's first written submission, para. 5.130.  
1789 Costa Rica's first written submission, para. 5.130; second written submission, para. 3.39.  WT/DS524/R  
- 259 - 
  7.942.   Costa Rica also points out that diversion from intended use was expressly included in the 
risk assessment, taking into account available information1790, and that it depicted this practice as a 
factor subject to some uncertainty in its risk assessment.1791 
7.943.   Costa Rica adds that it is its understanding that the experts would have welcomed the 
inclusion of estimates to determine the probability of introduction via diversion from intended use 
and waste in the PRA, and that the estimates are useful when reliable data are available for a 
previous period that can be used as a benchmark to judge what wi ll happen in a subsequent period, 
but that in Costa Rica such baseline data do not exist.1792 
7.944.   Costa Rica asserts that Mexico emphasizes the lack of evidence on diversion from intended 
use, although it knows that it is occurring in most parts of the world, in cluding Mexico, and that it is 
extremely difficult to quantify . Costa Rica adds that the experts confirmed that diversion from 
intended use is a well -known and widespread phenomenon and that, although it is difficult to 
document, it is certainly a clear ri sk factor for the introduction of ASBVd ; and that they recognized 
the problem of diversion from intended use, especially in less sophisticated avocado industries such 
as that of Costa Rica.1793 
7.945.   Costa Rica contends that diversion from intended use is a deep -rooted cultural practice in 
Costa Rica, especially in the highland area where the Hass variety is grown1794, and that, while it is 
difficult to document, Costa Rica has continued in its efforts to do so . Costa Rica asserts that, in 
2019, the Costa Rican gover nment commissioned a study on seed management in Costa  Rica 
(Exhibit CRI -44), and that the SFE continues to collect information on the magnitude of diversion 
from intended use, while training programmes for farmers are being provided that seek to  raise 
more awareness of good agricultural practices . The impact of domestic regulations prohibiting the 
sowing  of seeds from avocado s imported from countries with ASBVd is also being monitored . 
Costa Rica states that all of these actions seek to minimize the impact  of diversion from intended 
use as a risk factor in the introduction of ASBVd . All of which does not detract from the fact that, 
when conducting the PRA, the risk analyst should consider the existence of diversion from intended 
use in Costa  Rica as a risk factor . According to Costa Rica, taking into account the import volumes 
of Hass avocados from Mexico, the risk analyst deemed the risk associated with diversion from 
intended use qualitatively to be " medium ".1795 
7.946.   In Costa Rica's view, it is logical, in the a bsence of quantitative data, to conduct a risk 
assessment expressed in qualitative terms (high, medium , low), which the risk analyst also noted 
on page 3 of the PRA .1796 Costa Rica points out that the SPS  Agreement  does not require that th e 
evaluation of the  likelihood needs to be done quantitatively, and that the likelihood may be expressed 
either quantitatively or qualitatively.1797 
7.947.   Costa Rica asserts that the risk analyst considered all the information available to him ; that 
he had information on the number of units of avocados from Mexico that were imported for 
consumption, on the favourability of climatic conditions in Costa Rica, and on the existence of the 
practice of diversion from intended use as a common practice in Costa Rica ; and that furtherm ore 
he had information from the IPPC itself, to the effect that "[the practice of diversion from intended 
use] is considered more serious when products designated for consumption (including grain)... end 
up being used for planting, so that any associated p est may be introduced into the open environment 
unchecked".1798 
 
1790 Costa Rica's first written submission, para. 5.131.  
1791 Costa Rica's response to Panel question No. 14, para. 1.  
1792 Costa Rica's specific comments on the experts' responses to Panel questions Nos. 107 –110 for 
the experts.  
1793 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 81.  
1794 Costa Rica's response to Panel question No. 169, para. 197.  
1795 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 82.  
1796 Costa Rica's response to Panel question No. 163, para. 183; comments on Mexico's response to 
Panel question  No. 163, para. 89.  
1797 Costa Rica's comments on Mexico's response to Panel question No. 163, para. 88 (citing Appellate 
Body Report, Australia  – Salmon , para. 124); comments on Mexico's response to Panel question No. 164, 
para. 96 (citing Appellate Body Report, Australia  – Salmon , para. 124).  
1798 Costa Rica's response to Panel question No. 163, para. 184; comments on Mexico's response to 
Panel question No.  163, para. 89.  WT/DS524/R  
- 260 - 
  7.948.   Costa Rica also asserts that it is fully consistent with the factual elements available to him 
that the risk analyst has deemed the " medium " probability to be the most reasonable ; and that it 
was not a quantitative assessment, but nor was it an arbitrary or unsubstantiated assessment .1799 
Costa Rica adds that it is extremely difficult to make reference to specific evidence regarding 
diversion from intended use with respect to seeds of imported avoc ados when the general practice 
of diversion from intended use is categorized, even by the IPPC itself, as rarely documented or 
reported.1800 
7.949.   Costa Rica notes that it is its understanding that the risk assessment process needs to 
identify and make more transp arent the aspects that are still considered to be uncertain, as opposed 
to the aspects where there is a certain level of knowledge .1801 Costa Rica adds that its PRA contains 
a section very specifically identifying and addressing the issue of uncertainty . Costa Rica asserts 
that, on page 8 of the PRA, the risk analyst identified diversion from intended use concerning 
imported fruit as an issue that is subject to uncertainty, stated the facts on which there was certainty 
(the existence of the practice of divers ion from the intended use of avocado seeds in Costa  Rica 
based on evidence from third parties), and corroborated the plausibility of this fact by checking it 
against the IPPC's own 2016 paper on diversion from intended use . In Costa Rica's view, therefore,  
the risk analyst reached a consistent and reasonable conclusion that the practice of diversion from 
intended use of avocados imported for consumption is a fact in Costa Rica and a matter of importance 
for the IPPC itself.1802 
7.950.   Costa Rica contends that the an alyst specified any aspects about which there was uncertainty 
with respect to diversion from intended use, and, in that connection, he noted the lack of statistical 
information that would have allowed him to establish the number of imported fruits from whi ch the 
seed was extracted for propagation purposes . He therefore recorded the fact that insufficient 
information made it impossible to calculate the ratio of fruits imported for consumption in general 
to those from which the seed was extracted for propagat ion purposes, and that the lack of 
information prevented him from determining, using a quantitative method, a numerical probability 
of the incidence of diversion from intended use . Costa Rica states that, to corroborate the plausibility 
of these circumstan ces, the risk analyst also highlighted the point made by the IPPC itself in its 2016 
paper that the practice of diversion from intended use "is rarely documented or reported", and that, 
therefore, it is evident that the risk analyst was clear and transpare nt about the degree of uncertainty 
over diversion from intended use and how this limited his ability to carry out a quantitative 
analysis.1803 
7.951.   Costa Rica asserts that, although diversion from intended use is a deep -rooted , traditional 
practice in Costa Rica,  the existence of which has been documented, it is difficult to quantify because 
there is still a lack of statistical data on the practice . According to Costa Rica, the lack of an exact 
percentage does not mean that the risk analyst would consider that all  the approximately 
50 million  avocados imported from Mexico for consumption every year end up with their seeds 
planted in Costa Rican soil, as if that had been the case, the PRA would have recommended far more 
stringent risk management measures .1804 Costa Ri ca does not consider it acceptable to invalidate 
the finding that there is a significant risk of ASBVd being introduced into Costa Rica because of a 
lack of concrete statistics or quantitative data on the diversion from intended use practised by 
Costa  Ricans.1805 
7.952.   Costa Rica also submits that diversion from intended use is not the only factor behind  the 
existence of a risk of introduction of ASBVd, although it certainly contributes to increasing that risk . 
Costa Rica points out that, even in countries with sop histicated avocado industries and with no 
problems of diversion from intended use, such as New  Zealand , phytosanitary measures are 
 
1799 Costa Rica's response to Panel question No. 163, para. 185;  comments on Mexico's response to 
Panel question No.  163, para. 90.  
1800 Costa Rica's comments on Mexico's response to Panel question No. 164, para. 95.  
1801 Costa Rica's response to Panel question No. 161, para. 169.  
1802 Costa Rica's response to Panel question No . 161, para. 170.  
1803 Costa Rica's response to Panel question No. 161, para. 171.  
1804 Costa Rica's response to Panel question No. 161, para. 174; comments on Mexico's response 
to Panel  question No.  158, para. 67.  
1805 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 80.  WT/DS524/R  
- 261 - 
  maintained for fresh avocados for consumption in order to manage the risk of introduction of ASBVd 
associated with this produ ct and, in particular, its waste.1806 
7.953.   Costa Rica does not regard the acknowledgement of the absence of data relating to a specific 
point in the PRA as a methodological flaw that invalidates the risk analysis exercise . On the contrary, 
as the expert Robert Griffin pointed out, it is important to detect the uncertainties because "if we 
know what the uncertainties are, then we can address those uncertainties with research" .1807 
Costa Rica refers to the point made by Mr Griffin that "[the risk analysis] process [should always be] 
open to evolution and improvement … It should never be static, it always needs to be open for 
improvement and for new and better information, different methodo logies, whatever is appropriate, 
but should never be a static process" .1808 Costa Rica states that a country cannot be expected to 
refrain from adopting phytosanitary measures against the risk of introduction of a pest until it has 
obtained all necessary inf ormation to dispel the existing uncertainties.1809 
7.954.   The Panel  sought expert advice on the issue of documenting diversion from intended use in 
a risk assessment.  
7.955.   The expert Robert Griffin notes that diversion from intended use is a genuine phenomenon, 
and that  the most appropriate context in which to consider diversion from intended use is the 
PRA.1810 Mr Griffin agrees with Costa Rica that this phenomena is not well -studied and is difficult to 
document but is of the view that it is important to document the prac tice of diversion from intended 
use and estimate its magnitude if it is going to be used in an argument for increased risk . Otherwise, 
it opens up the possibility for abuse as an arbitrary factor to increase risk in the absence of 
evidence .1811 Mr Griffin co nsiders that a reasonable approach is to estimate the probability of 
introduction for some proportion that is expected to actually be diverted, and that it is incumbent 
on the importing country to support its claim of diversion with some evidence to descri be the 
magnitude of diversion . According to Mr Griffin, the absence of such evidence, coupled with the 
recognition that 100 % of the imported product is unlikely to be diverted, creates an unsolvable and 
unfair dilemma for the exporting country .1812 Mr Griffin considers that, from a PRA standpoint, only 
the importing country claiming that diversion from intended use is an issue can demonstrate that it 
exists and provide evidence of the magnitude.1813 
7.956.   The expert Fernando Pliego Alfaro agrees that is very importan t to document diversion from 
intended use because, in his view, therein lies the root of the problem . Mr Pliego Alfaro is of the 
opinion that it is essential for Costa Rica to estimate and quantify the magnitude of diversion from 
intended use, and that the  main weakness in Costa Rica's arguments lies in the fact that it fails to 
provide data on when such diversion from intended use began and its magnitude.1814 
7.957.   As noted by the experts and, given the importance of diversion from intended use for the 
calculation  of probabilities in Reports ARP -002-2017 and ARP -006-2016, the Panel considers that 
Costa Rica should have documented diversion from intended use and estimated its probability.  
7.958.   In the Panel's view, while diversion from intended use is an area of uncertain ty that is difficult 
to document, Costa Rica should have gathered evidence to substantiate its existence, estimated its 
magnitude either quantitatively or qualitatively, and documented the degree of uncertainty.  
7.959.   Instructive in this regard is Australia – Salmon, in which the Appellate Body referred to the 
panel's factual findings, according to which the 1996 Final Report, which Australia submitted as a 
risk assessment, "lends more weight to the unknown and uncertain elements of the assessment 
than the 1995 D raft Report (on which the 1996 Final Report is based) . This, on occasions, results in 
 
1806 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 80.  
1807 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83 
(citing  Robert  Griffin, transcript of the Panel 's meeting with the parties and the experts, day 3, p. 42).  
1808 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83 
(citing  Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 55).  
1809 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83.  
1810 Robert Griffin's response to Panel question No. 160 for the experts.  
1811 Robert Griffin's response s to Panel questions Nos. 108 and 160 for the experts.  
1812 Robert Griffin's response t o Panel question No. 158 for the experts.  
1813 Robert Griffin's response to Panel question No. 95 for the experts.  
1814 Fernando Pliego Alfaro's response s to Panel questions Nos. 107, 108, 109, 110 and 158 for 
the experts.  WT/DS524/R  
- 262 - 
  general and vague statements of mere possibility of adverse effects occurring ; statements which 
constitute neither a quantitative nor a qualitative assessment of probability" .1815 In this context, the 
Appellate Body considered that the existence of unknown and uncertain elements does not justify a 
departure from the requirements of Articles 5.1, 5.2 and 5.3, read together with paragraph  4 of 
Annex A, for a risk asses sment.1816 
7.960.   The Panel will analyse below the evidence used by Costa Rica in Reports ARP -002-2017 and 
ARP-006-2016 with respect to the diversion from intended use of seeds from avocados for 
consumption and the alleged practices of planting seeds from fruit for  consumption and of using 
Hass rootstock, as well as the evidence presented throughout the proceedings . It will also address 
Mexico's claim regarding the viability of the practice of using Hass rootstock.  
7.4.5.3.3.4   Sources cited in support of the assertions concerni ng diversion from intended 
use in Reports ARP -002-2017 and ARP -006-2016  
7.961.   Mexico  refers to the following inferences in ARP -002-2017 and ARP -006-2016 regarding 
diversion from intended use that it considers unfounded:  
a. The practice of using Hass rootstock incre ases the likelihood of using seed from avocado 
imported for consumption.  
b. Cultural practices create a situation in which a producer may use seed from outside his or 
her farm . The seeds of fruit consumed (CONSULSANTOS (2017)), waste from wholesale 
markets an d avocado processors can be a ready source of avocado seed of unknown 
quality.  
c. People who consume good quality avocado and have space to cultivate this fruit are likely 
to plant the seed (CONSULSANTOS (2017)).  
d. There are records of expert testimony (CONSULS ANTOS (2017)) that demonstrate 
diversion from intended use ; however, there are no statistics available on the quantity of 
imported fruit from which the seed is extracted for propagation purposes.1817 
7.962.   Mexico asserts that, drawing from these inferences, Costa Rica did not base its analysis on 
an assessment of probability, but solely on theoretical constructs, presumptions and the mere 
possibility that the seed of an avocado imported for consumption would be diverted to planting.1818 
7.963.   Mexico further asserts that CONSULSANTOS (2010) and CONSULSANTOS (2017), cited in 
the PRA, were the only documents to serve as the basis for justifying the alleged existence of the 
cultural practice of using the seed of imported Hass avocados to grow avocado plants.1819 
7.964.   Mexico sta tes that the CONSULSANTOS (2010) and CONSULSANTOS (2017) studies : (i) are 
not sufficient to estimate the incidence of instances  in which farmers acquire avocado pits from fruit 
previously imported for consumption ; (ii) are not a source representative of th e entire territory of 
Costa  Rica; (iii) do not provide information on the probability of a producer using seed obtained from 
wholesale markets or avocado processors for propagation purposes ; and (iv)  do not provide the 
specific information required to asse ss the probability that the seeds obtained from markets come 
from avocado fruit imported for consumption.1820 
7.965.   Mexico asserts that Costa Rica provides no evidence that seed from fresh avocados for 
consumption imported from Mexico is used for propagation ; that this reference cannot be found in 
CONSULSANTOS (2010) ; and that, instead, the author includes a chart showing the average 
percentage of avocado trees acquired by nursery and by rootstock seed . In Mexico's view, it follows 
 
1815 Appellate Body Report, Australia – Salmon, para. 129 (citing Panel  Report , Australia – Salmon , 
para. 8.83).  
1816 Appellate Body Report, Australia – Salmon , para. 130.  
1817 Mexico's first written submission, para. 327.  
1818 Mexico's first written submission, para. 328.  
1819 Mexico's second written submission, para. 74.  
1820 Mexico's second written submission, para. 131 (referring to CONSULSANTOS (2010), 
(Exhibit  MEX-119); and CONSULSANTOS (2017), (Exhibit MEX -118)). WT/DS524/R  
- 263 - 
  that propagation by seed other th an that acquired from nurseries or one's own farm is minimal1821, 
that rootstock seed is obtained from the farms themselves, and that nowhere in the census does it 
say that these seeds are acquired or obtained from fresh avocados for consumption that are imported 
from Mexico.1822 
7.966.   Mexico adduces that since the censuses make no direct mention of the use of seeds of 
imported fresh avocados as propagation material, Costa Rica has no scientific basis that explains 
percentages or the probability that this hypothes is will occur .1823 Mexico adds that the 
CONSULSANTOS (2010) report fails to provide scientific evidence specific enough to support the 
argument concerning a high level of risk.1824 
7.967.   Costa Rica  argues that diversion from intended use is a cultural practice that was 
documented by CONSULSANTOS in 2010 and 2017, and has been observed by the 2019 study on 
cultural practices in planting and managing avocado seeds in Costa Rica .1825 Costa Rica notes that 
the CONSULSANTOS (2010) study concluded that in all the cantons exa mined there was a greater 
tendency to obtain trees via rootstock seed than to acquire them from nurseries, and that the 
selecting of buds or seed for rootstock by producers who engage in grafting is a widespread practice 
in the Los Santos subregion .1826 Costa Rica adds that it has been noted that it is common for 
producers, especially those that are less technically advanced, not to acquire their certified 
propagation material from nurseries, but to use seed that is sometimes of unknown origin.1827 
7.968.   For Costa Ri ca, because the practice of diversion from intended use is difficult to document 
accurately, no statistics are yet available indicating the quantity of imported fruit from which the 
seed is extracted for propagation purposes ; however, the practice of using  the Hass variety as 
rootstock is a factor that increases the probability of the diversion from intended use of seeds of 
imported Hass avocados . Costa Rica adds that, although diversion from intended use is difficult to 
ascertain in a scientific laboratory , it poses a risk in human societies as they actually exist, such as 
that of Costa Rica.1828 
7.969.   Costa Rica states that several reports find that the practice of diversion from intended use 
in respect of avocado seed exists and is common in Costa Rica ; that it h as been documented that 
many producers sow seeds directly in the ground for subsequent grafting, or prepare containers for 
transplanting into the field and grafting, or sow seeds in bags for grafting prior to their 
transplantation1829, and that, in such case s, the origin of the seed is not always known.1830 
7.970.   Costa Rica adds that the IPPC itself recognizes that the practice of diversion from intended 
use is rarely documented or reported, but that anecdotal evidence suggests it is occurring in most 
parts of the wo rld and is considered most serious when products designated for consumption end 
up being used for planting, so that any associated pests may be introduced into the open 
environment unchecked . According to Costa Rica, while the IPPC document indicates that the 
responsibility for diversion from intended use, and its consequences, falls to the NPPO of the 
importing country, it also states that the NPPO is allowed to monitor trade, as a compliance 
procedure to ensure import requirements are met, and that concer n about diversion from intended 
use is affecting both importing and exporting parties, and recommends caution against inclusion of 
 
1821 Mexico's first written submission, para. 334 (referring to CONSULSANTOS (2010),  
(Exhibit MEX -119)). 
1822 Mexico's first written submission, para. 335.  
1823 Mexico's first written submission, para. 337.  
1824 Mexico's response to Panel question No. 161, para. 120.  
1825 Costa Rica's first written submission, para. 5.130 (referring to CONSULSANTOS (2010) , 
(Exhibit  MEX-119); and CONSULSANTOS (2017), (Exhibit MEX -118)); second written submission, para. 3.39 
(citing CONSULSANTOS (2017), (Exhibit MEX -118); and Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019), (Exhibit CRI -44)). 
1826 Costa Rica's first written submission, para. 5.130 (citing CONSULSANTOS (2010),  
(Exhibit MEX -119)). 
1827 Costa Rica's second written submission, para. 3.39 (citing CONSULSANTOS (2010), 
(Exhibit  MEX-119); Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), 
(Exhibit  CRI-44); and Manual for Nurseries (2017), (Exhibit CRI -43)). 
1828 Costa Rica's first written submission, para. 5.130; second written submission, para. 3.39.  
1829 Costa Rica's response to Panel question No. 14, para. 2  (citing CONSULSANTOS (2010), 
(Exhibit  MEX-119)). 
1830 Costa Rica's response to Panel question No. 14, para. 2 (citing Manual for Nurseries (2017), 
(Exhibit  CRI-43), p. 20).  WT/DS524/R  
- 264 - 
  phytosanitary measures aimed at preventing diversion from intended use or managing associated 
risks, without linking them to the risk assessment . Costa Rica asserts that, where appropriate, 
diversion from intended use was expressly included in the risk assessment, taking into account the 
information available, and the degree of probability attributed to both diversion from inten ded use 
and the conclusion regarding the establishment of ASBVd was medium .1831 Costa Rica adds that 
Mexico takes into consideration diversion from intended use in its risk assessment for potatoes.1832 
7.971.   The Panel  observes that regarding diversion from intended use and the use of 
Hass rootstock, Reports ARP -002-2017 and ARP -006-2016 cite CONSULSANTOS (2010)1833, 
Garbanzo  Solís (2011)1834, CONSULSANTOS (2017)1835 and "Diversion from intended use" 
(2016) .1836 The Panel will discuss this evidence below.  
7.972.   The report CONSULSANTOS (2010)  is an avocado census directed at areas producing 
highland avocados, which focuses on the Los Santos zone and its surrounding area . The overall 
objective of the census is to construct a detailed socio -economic profile of highl and avocado 
producers and production systems in the Los Santos, Frailes and Corralillo zone.1837 
7.973.   CONSULSANTOS (2010) indicates that it uses as a source 972 surveys from the same 
number of farms, and information provided by 15 producers over the telephone .1838 The report 
CONSULSANTOS (2010) indicates, inter alia , the number of farms by district, the planted area by 
canton, the predominant cultivar (Hass), how long the avocado orchards have been in existence, 
the sown area and number of trees planted on farms, th e most common production systems, the 
percentage of farms that have electricity and a cadastral plan, where producers obtain their planting 
materials, pruning activity and soil analysis, the weed control methods used, the months when crops 
are harvested, t he number of kilograms of fruit per mature tree, environmental factors, whether 
producers are technically proficient, and training and technical assistance requirements.1839 
7.974.   CONSULSANTOS (2010) indicates that Hass is the predominant variety in the area, 
accounting for over 90 % of production1840, and that an overall total of 228,533 planted trees were 
reported for the entire area, most of which were of the Hass cultivar.1841 
7.975.   CONSULSANTOS (2010) also indicates that, with the exception of the canton of Guarco, 
where  most producers tended to obtain their planting materials through a nursery, in the other 
cantons there is a greater tendency to obtain trees via rootstock seed .1842 Regarding the place or 
person from which producers obtain their rootstock, according to the report CONSULSANTOS (2010), 
producers said they obtained their rootstock from the farm itself or the surrounding area .1843 
According to CONSULSANTOS (2010), the selecting of buds and seeds for rootstock by producers 
who engage in grafting is a widespread pra ctice (more than 75 %) among avocado producers in the 
Los Santos subregion.1844 
 
1831 Costa Rica's first written submission, para. 5.131 (citing IPPC Secretariat , "Diver sion from intended 
use" (2016), (Exhibit MEX -124), p. 16).  
1832 Costa Rica's first written submission, paras.  5.132 -5.133 (citing Servicio Nacional de Sanidad, 
Inocuidad y Calidad Agroalimentaria (SENASICA), Extracto del análisis de riesgo de plagas para la i mportación 
de tubérculos de papa ( Solanum tuberosum  L.) a México (2012), (Exhibit CRI -31), p. 9; and Servicio Nacional 
de Sanidad, Inocuidad y Calidad Agroalimentaria (SENASICA), Medidas fitosanitarias para importación de papa 
fresca de EEUU y Canadá a Méx ico, publicado el 7 de abril de 2012, (Exhibit CRI -32)); second written 
submission, para. 3.40.  
1833 CONSULSANTOS (2010), (Exhibit MEX -119). 
1834 Garbanzo Solís (2011), (Exhibit MEX -125). 
1835 CONSULSANTOS (2017), (Exhibit MEX -118). 
1836 IPPC Secretariat , "Diversion from intended use" (2016), (Exhibit MEX -124). 
1837 CONSULSANTOS (2010), (Exhibit MEX -119), pp. 6 -7. 
1838 CONSULSANTOS (2010), (Exhibit MEX -119), p. 58. See also CONSULSANTOS (2010), 
(Exhibit  MEX-119), p. 8.  
1839 CONSULSANTOS (2010), (Exhibit MEX -119), pp. 58 -62. 
1840 CONSULSANTOS (2010), (Exhibit MEX -119), p. 18.  
1841 CONSULSANTOS (2010), (Exhibit MEX -119), p. 21.  
1842 CONSULSANTOS (2010), (Exhibit MEX -119), p. 24. See also CONSULSANTOS (2010), 
(Exhibit  MEX-119), p. 59 and figure 20.  
1843 CONSULSANTOS (2010), (Exhibit MEX -119), p. 25.  
1844 CONSULSANTOS (2010), (Exhibit MEX -119), p. 26.  WT/DS524/R  
- 265 - 
  7.976.   CONSULSANTOS (2010) notes the existence of four avocado planting systems in Los  Santos : 
traditional monoculture planting system1845, modernized monoculture plantation system1846, 
coffee-avocado companion planting system1847 and avocado -coffee companion planting system .1848 
When defining these systems, consideration was given to whether producers are aware of the origin 
of rootstock and the sowing method when grafting .1849 Producers using the  traditional monoculture 
planting system indicate that they are sometimes aware of the origin of rootstock and the sowing 
method, that they use criollo or Hass rootstock from the farm, and that they mostly sow directly ; 
producers using the modernized monoc ulture planting system indicate that they are generally or 
always aware of the origin of rootstock and the sowing method, and that they use rootstock that is 
sometimes more select and of greater value ; producers using the coffee -avocado companion 
planting system indicate that they are sometimes aware of the origin of rootstock and the sowing 
method, and that they use 50 % rootstock and 50 % nursery products ; and producers using the 
avocado -coffee companion planting system indicate that they are gener ally aware of the origin of 
rootstock and the sowing method, that they use criollo or Hass rootstock, and that they mostly sow 
directly.1850 
7.977.   In the Panel's view, CONSULSANTOS (2010) confirms that Hass rootstock is used, and that 
Hass is the predominant varie ty in the Los Santos zone, despite there being no explicit mention of 
the use of Hass on Hass, as held by Costa Rica throughout the dispute . The document does not 
mention whether the avocado seeds come from fresh avocados for consumption, imported or 
other wise, and does not specify what proportion of the rootstock seed is of the Hass variety or other 
varieties . Nor does CONSULSANTOS (2010) provide evidence to support the assertion in the reports 
concerning the existence of the practice of using seeds from i mported Hass avocados to grow new 
plants despite the fact that the avocados were originally imported for human consumption.1851 
7.978.   Exhibit Garbanzo Solís (2011 ) is an avocado handbook, published by MAG of Costa  Rica, that 
compiles information on good cultivatio n practices  for the Hass variety . The author thanks avocado 
crop producers in the Frailes de Desamparados region and its surrounding areas for the information 
they enabled him to compile .1852 The document discusses the cultivation of avocados of the Hass 
variety and addresses climate, soil, land selection, the acquisition of trees or plant material, how to 
establish an orchard, good agricultural practices, agronomic management and quality control.  
 
1845 Refers to an avocado orchard that is farmed (pruning, planting distance, disease and pest control, 
soil management, etc.) on a low -intensity basis by the prod ucer. The farmer is interested, but has limited 
technical knowledge with regard to obtaining a high level of fruit productivity and quality. 
(CONSULSANTOS  (2010), (Exhibit MEX -119), p. 35).  
1846 Refers to an avocado orchard that has been farmed intensively, w here shape and production 
pruning takes place, planting distances are shorter, disease and pest control is based on agrochemicals of a 
more specific nature sometimes not widely available in the area, and soil management and conservation 
practices are appli ed. The farmer has technical knowledge of avocados acquired through their own locally and 
internationally enhanced experience. (CONSULSANTOS (2010), (Exhibit MEX -119), p. 35).  
1847 Refers to a producer whose family has, for generations, dedicated its farm to cultivation  practices 
focusing on the establishment and productivity of coffee crops in the Los Santos zone, and who, in recent 
years, has become interested in incorporating avocado as a companion crop for the coffee crop in order to 
replace traditional sh ade and/or improve plot productivity. The farmer is interested, but has very limited 
technical knowledge with regard to the specific requirements for obtaining a high level of fruit productivity and 
quality. (CONSULSANTOS (2010), (Exhibit MEX -119), pp. 35 -36). 
1848 Refers to a producer who has shown an interest in identifying and implementing avocado farming 
practices that help to ensure a good level of fruit productivity and quality. The producer has a tendency to 
phase out coffee crops in plots where avocado  trees are entering their production phase, and incorporates the 
use of fertilizer, pest and disease control, and good soil management and conservation practices conducive to 
healthy avocado trees. He or she receives or seeks training and technical assista nce in respect of avocado 
growing, has and applies reasoned technical knowledge as regards specific avocado requirements and is able to 
determine how to divide the plot between coffee and avocados. (CONSULSANTOS (2010), (Exhibit MEX -119), 
p. 36). 
1849 CONSULS ANTOS (2010), (Exhibit MEX -119), p. 36, table 7.  
1850 CONSULSANTOS (2010), (Exhibit MEX -119), p. 36, table 7.  
1851 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 19.  
1852 Garbanzo Solís (2011), (Exhibit MEX -125). WT/DS524/R  
- 266 - 
  7.979.   The Panel notes that Garbanzo Solís (2011) refers to the decis ion to plant seed and to graft 
directly in the field as the working method preferred by many producers .1853 However, there is no 
specific mention of rootstock seed being of the Hass variety, nor of its origin.1854 
7.980.   The CONSULSANTOS (2017 ) document is a 2019 aff idavit that includes a communication, 
dated 1 6 March  2017, from Mr Rodrigo Jiménez Robles, representative of the consulting firm 
CONSULSANTOS S.R.L., to Mr Marco Vinicio Jiménez Salas, Executive Director of the SFE, in which 
Mr Jiménez Robles notes, as rep resentative of CONSULSANTOS S.R.L., the company that conducted 
the georeferenced survey of avocado -producing farms in the Los Santos zone in 2009 and 2010, 
together with the diagnostic study of this activity, and as a long -standing private advisor on avoca do 
farming in Costa Rica, that "the avocado producer under review very often uses seeds from the fruit 
they consume, either to set up nurseries at home or for selling in small quantities, and for planting 
directly in fields and subsequent grafting."1855 
7.981.   The Panel notes that CONSULSANTOS (2017) refers to the use of seed of fruit for 
consumption for setting up nurseries at home, for selling or for growing plants for grafting . However, 
as mentioned above, this is not reflected in the CONSULSANTOS (2010) cens us referred to in the 
affidavit . CONSULSANTOS (2017) is an affidavit by the representative of CONSULSANTOS S.R.L. 
and provides no evidence to support the assertion concerning the use of fruit for consumption for 
propagation purposes.  
7.982.   The document "Diversion from intended use" (2016 ) is a paper published within the 
framework of the IPPC that reviews the issue of diversion from intended use after import of plants, 
plant products and other regulated articles, in order to estimate the extent of this is sue and to 
evaluate the necessity for further guidance.1856 
7.983.   The document drafted within the IPPC framework is a study that defines the concept of 
diversion from intended use and provides examples of relevant situations . While the study seeks to 
define the ex tent to which diversion from intended use exists, it fails to define the scope of such 
diversion ; it notes that concern about diversion from intended use affects both importing  and 
exporting parties ; and it includes considerations regarding how both partie s address diversion from 
intended use, and the division of responsibilities between them.  
7.984.   The document concludes that the widespread use of measures to avoid consequences of 
possible diversion indicates that diversion from intended use does impact on plant  health and trade, 
and merits further guidance in order to achieve a technically justified, transparent and harmonized 
approach . The document adds that the extent to which diversion from intended use is actually 
occurring and increasing pest risk in import ing countries remains unclear.1857 
7.985.   With regard to the above -mentioned documents, it appears that CONSULSANTOS (2010) 
mentions the use of Hass rootstock ; that the document "Diversion from intended use" (2016) 
confirms the existence of diversion from intended use in general, but notes that the extent to which 
it occurs remains unclear ; and that CONSULSANTOS (2017) is the only source that mentions the 
use of seed from fruit for consumption for propagation purposes in Costa Rica, but consists of an 
affidavit that  is not supported by evidence.  
7.986.   Therefore, even if evidence of the use of Hass rootstock in Costa  Rica can be found, th e 
Panel finds that there is insufficient scientific evidence  in Reports ARP -002-2017 and ARP -006-2016 
on the existence of diversion from i ntended use of seed s from fresh fruit for consumption, and that 
there are no estimates, even in qualitative terms, of the scale on  which this diversion occurs in 
Costa  Rica. This prevented the risk analyst from conducting either a qualitative or quantitati ve 
assessment of the probability of entry, establishment or spread of ASBVd in Costa Rica that would 
give due  consider ation to this  diversion from intended use.  
 
1853 Garbanzo Solís (2011), (Exhibit MEX -125), p. 24.  
1854 Garbanzo Solís (2011), (Exhibit MEX -125), p. 20.  
1855 CONSULSANTOS (2017), (Exhibit MEX -118). 
1856 IPPC Secretariat , "Diversion from intended use" (2016), (Exhibit MEX -124), p. 23.  
1857 IPPC Secretariat , "Diversion from intended use" (2016), (Exhibit MEX -124), p. 23.  WT/DS524/R  
- 267 - 
  7.4.5.3.3.5   Documents cited in support of the assertions concerning diversion from 
intended use not included in Reports ARP -002-2017 and ARP -006-2016  
7.987.   Throughout the proceedings, Costa Rica has submitted exhibits that post -date Reports 
ARP-002-2017 and ARP -006-2016, or that predate but were not included in those reports, which it 
asserts substantiate the diversion from intended use of fresh avocados in Costa Rica and the practice 
of using Hass rootstock, in particular the grafting of Hass on Hass.  
7.988.   Mexico  states that the new evidence provided by Costa Rica still does not prove that the 
skin and seeds from a symptomatic avocado fruit pose a risk of entry, establishment or spread of 
ASBVd within the territory of Costa Rica.1858 
7.989.   Mexico states that the report , Cultural practices in sowing and managing avocado seeds in 
Costa Rica  (2019) , post-dates the measure, and is designed specifically to justify ex post the 
circumstances that, according to the PRAs, justified the imposition of the measures by Costa Rica, 
but that were not duly substantiated on the basis of CONSULSANTOS (2010) and CONSULSANTOS 
(2017) .1859 Mexico as serts that this document : (i) notes the absence of systematic studies relating 
to the cultural management of avocado seed in Costa Rica before 2019 ; (ii) confirms that it is highly 
unlikely for someone to be aware of the origin of the avocado they are buyi ng, which means that it 
would have been difficult for Costa Rica to have been able to calculate a high risk of probability of 
entry, establishment and spread deriving from the diversion from intended use of imported 
avocados ; (iii) states  that most of the seeds are obtained from the farms themselves or from nearby 
nurseries, and notes that at the APACOOP nursery all the seeds used to produce rootstock are 
obtained from the cooperative's farm, which selects the best specimens according to size, but asserts 
that the criollo avocado tree works very well for grafting ; (iv) restates that only 10 % of the seed 
could come from "another origin", i.e. most producers obtain their rootstock from their own seed 
(65%) or purchased seed (24 %), without specifying whether the purchased seed derives from the 
pits of avocados imported for consumption ; and (v)  shows that the material used on farms is mostly 
criollo avocado material obtained from various sources and that only a very small part of it comes 
from "another origin".1860 
7.990.   Regarding the five affidavits from farmers, Mexico notes that these testimonies, while 
reflecting the opinion of private individuals, appear to be unobjective and unrepresentative, and are 
therefore not sufficient to confirm a cultural practice of diversion from intended use due to  the 
importation of fresh avocados for consumption in Costa Rica.1861 
7.991.   Mexico indicates that the evidence submitted ex post  by Costa Rica confirms that : 
(i) Costa  Rica could have gathered information enabling its phytosani tary authority to assess in an 
objective, methodological and impartial manner the probability of the entry, establishment and 
spread of ASBVd through fresh avocados imported for consumption ; (ii) Costa Rica has availed itself 
of the WTO dispute settlement process to address the errors and flaws in its measures and to try to 
justify them ex post facto ; and (iii)  even with the new evidence most probably designed ex professo , 
Costa Rica cannot objectively demonstrate that fresh avocados imported for consumptio n pose a 
high risk in terms of the entry, establishment and spread of ASBVd.1862 
7.992.   Mexico submits that while Costa Rica has tried to remedy the lack of information proving 
that cultural practices result in the diversion from intended use of avocado pits obtain ed from fruit 
imported for consumption, such evidence is not applicable in this dispute.1863 
7.993.   Mexico asserts that WTO dispute settlement proceedings are not the right time to be 
justifying ex post  the adoption of phytosanitary measures, as Costa Rica seeks to  do by attempting 
to validate and justify the appropriateness of its measures on the basis of scientific evidence that 
was not considered and included in the PRAs, and by publishing and implementing new legal 
 
1858 Mexico's second written submission, para. 75.  
1859 Mexico's second written submission, para. 76.  
1860 Mexico's second written submission, para. 77 (citing Cultural practices in sowing and managi ng 
avocado seeds in Costa Rica  (2019), (Exhibit CRI -44)). 
1861 Mexico's second written submission, para. 78.  
1862 Mexico's second written submission, paras.  80-81. 
1863 Mexico's second written submission, para. 134 (citing México, Cuadro sobre la aplicabilidad 
de evidencia  presentada por Costa Rica  (Mexico, Table on the applicability of evidence) , (Exhibit MEX -245)). WT/DS524/R  
- 268 - 
  provisions that try to justify, once again ex post, a risk analysis lacking scientific rigour and 
objectivity . Mexico submits that, insofar as this is the case, the Panel should ignore this evidence.1864 
7.994.   As part of its arguments under Article  5.2 of the SPS  Agreement  regarding available scientific 
eviden ce, Mexico states that it is submitting a comparative table displaying the literature cited by 
Costa Rica in its response to Panel question No. 191865, and another table listing all the evidence 
submitted by Costa Rica during the proceedings, which, accordin g to Mexico, should be disregarded 
on account of being information submitted ex professo  and prepared specifically so that Costa  Rica 
can justify its measures during these proceedings.1866 
7.995.   Costa Rica  contends that the Costa Rican population's own cultural practices in respect of 
seed sowing and seed management are a key factor in determining the risk of the introduction of 
ASBVd in its territory, and submits a study that it claims documents the charac teristics of avocado 
seed sowing and management as a cultural practice for avocado reproduction and, in particular, the 
characteristics pertaining to the re -sowing or diversion from intended use of seeds from fruit 
intended for consumption .1867 According to Costa Rica, this study shows that the practice of 
exchanging and experimenting with different seed varieties, and the habit of sowing seeds from 
different products consumed in the home, mean that sowing avocado seeds is usually considered a 
natural and har mless practice, and that it may continue to occur despite Costa Rica's efforts to 
prohibit these behaviours in order to minimize the associated risks.1868 
7.996.   According to Costa Rica, although there are no studies analysing the effectiveness of this 
practice in aggregate or macroeconomic terms1869, the study , Cultural practices in sowing and 
managing avocado seeds in Costa Rica  (2019) , noted the existence of the practice of grafting on to 
Hass rootstock, and reported that farmers consider Hass -on-Hass g rafting to be a good combination 
because of its resilience and quality of the fruits obtained .1870 Costa Rica asserts that the farmers 
made same observation in their affidavits.1871 
7.997.   Costa Rica contends that diversion from intended use is a deep -rooted cultural  practice in 
Costa Rica, especially in the highland area where the Hass variety is grown1872, and that, while it is 
difficult to document, Costa Rica has continued in its efforts to do so . Costa Rica asserts that, in 
2019, the Costa Rican government commissi oned a study on seed management in Costa Rica, and 
that the SFE continues to collect information on the magnitude of diversion from intended use, while 
training programmes for farmers are being provided to try to raise more awareness about good 
agricultura l practices . The impact of domestic regulations prohibiting the sowing  of seeds from 
avocado s imported from countries with ASBVd is also being monitored.1873 
 
1864 Mexico's opening statement at the first meeting of th e Panel, para. 8.  
1865 In Panel question No. 19, the Panel asked Costa Rica to submit all the documents mentioned in 
the bibliography of Report ARP -002-2017 and its datasheet that had not yet been submitted as exhibits.  
1866 Mexico's second written submission, p ara. 191 (citing Mexico, Table on the applicability of evidence , 
(Exhibit MEX -245)). 
1867 Costa Rica's opening statement at the first meeting of the Panel, para. 10 (referring to Cultural 
practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit CRI -44)). 
1868 Costa Rica's opening statement at the first meeting of the Panel, para. 11.  
1869 Costa Rica's response to Panel question No. 12, para. 1.  
1870 Costa Rica's response to Panel question No. 11, para. 3 (citing Cultural practices in sow ing and 
managing avocado seeds in Costa Rica  (2019), (Exhibit CRI -44), p. 14).  
1871 Costa Rica's response to Panel question No. 11, para. 3 (citing Declaración Jurada de Juan Gamboa 
Robles, 23 de septiembre de 2019 ( Affidavit of Juan Gamboa Robles  (2019)) , (Exhibit  CRI-45); Declaración 
Jurada de Francisco Fallas Serrano, 23 de septiembre de 2019 ( Affidavit of Francisco Fallas Serrano  (2019)) , 
(Exhibit CRI -46); Affidavit of Francisco Cordero Navarro  (2019) , (Exhibit  CRI-47); Declaración Jurada de Daniel 
Ureña Z umbado, 23 de septiembre de 2019 ( Affidavit of Daniel Ureña Zumbado  (2019)) , (Exhibit CRI -48); and 
Declaración Jurada de Francisco Elizondo Ureña, 23 de septiembre de 2019 ( Affidavit of Francisco Elizondo 
Ureña  (2019)) , (Exhibit  CRI-49)). 
1872 Costa Rica's response to Panel question No. 169, para. 197.  
1873 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 82 (referring to 
Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit CRI -44), and citing 
Decreto Nº 41995 -MAG del Segundo Vicepresidente en el ejercicio de la presidencia de la República y el 
Ministro de Agricultura y Ganadería, " Reglamento para regular el uso de semilla de aguacate ( Persea 
americana Mill.) para propagación, extraídas de fruto s frescos importados para consumo, de países con 
presencia de avocado sunblotch viroid (ASBVd)", del 23 de septiembre de 2019, publicado en La Gaceta 
Nº 196, de 16 de octubre de 2019 ( Regulation governing  the use of avocado seed s (2019) ), (Exhibits MEX-174 
and CRI-53)). WT/DS524/R  
- 269 - 
  7.998.   Costa Rica notes that several reports find that the practice of the diversion from intended 
use of a vocado seed exists and is common in Costa Rica .1874 Costa Rica adds that, for example, 
avocado wholesalers confirm the existence of the practice whereby avocado producers purchase 
quantities of avocados that are not fit for sale to consumers (because they ar e bruised or overripe) 
and use them to establish their own nurseries1875; and that the farmers themselves acknowledge in 
their affidavits that "avocado farming started out using seeds of uncertain origin, including seeds 
obtained from wholesale markets where  avocado fruit was sold".1876 
7.999.   Costa Rica asserts that the agricultural practice of grafting the Hass variety on to Hass 
rootstock is very widespread in Costa Rica and has so far yielded positive results, citing in this 
respect the Manual for Nurseries (2017).1877 
7.1000.   Costa Rica further asserts that nothing prevents the Panel from taking into consideration 
the most recent information as part of its objective assessment of the matter .1878 For Costa Rica, 
the ability to conduct an objective assessment of  the facts would be limited if a panel were unable 
to consider new studies in order to verify whether a risk identified at a certain point is still present 
or is increasing or decreasing . Costa Rica adds that any evidence post -dating the imposition of the 
measures, which confirms the reasonableness of the conclusions reached in the risk analysis 
underpinning those measures, is evidence that a panel may take into consideration in its review .1879 
For Costa Rica, the scientific literature post-dating  Costa Rica' s risk assessment confirms the 
importance of ASBVd and the risk posed by avocado fruit.1880 
7.1001.   As a preliminary matter, the Panel  will address Mexico's argument that the Panel should 
ignore scientific evidence that was not considered and included in the PRAs, b ecause it is evidence 
with which, in Mexico's view, Costa Rica is attempting to justify ex post  a risk analysis lacking in 
scientific rigour and objectivity.1881 
7.1002.   With regard to evidence in support of a claim challenging measures that are within a panel's 
terms of reference, the Appellate Body has explained that a panel is not precluded from assessing a 
piece of evidence for the mere reason that it predates or post -dates its establishment, and that a 
panel enjoys a certain discretion to determine the relevance  and probative value of a piece of 
evidence that predates or post -dates its establishment.1882 
7.1003.   The Panel considers that the above statement by the Appellate Body may also be applicable 
to the evidence submitted by the respondent . In this Panel's view, it is not precluded from assessing 
the evidence that was submitted by Costa Rica during the proceedings, which post -dates Reports 
ARP-002-2017 and ARP -006-2016 (or even that predating and not included in those reports) . 
However, in assessing this evidence and de termining its relevance and probative value, the Panel 
will consider the fact that this evidence was not used for the risk assessments contained in Reports 
ARP-002-2017 and ARP -006-2016, and that Costa Rica has not submitted any subsequent risk 
assessment using this new evidence.  
7.1004.   The Panel will now address the documents cited by Costa Rica in support of the assertions 
on diversion from intended use that were not included in Reports ARP -002-2017 and ARP -006-006: 
the Manual for Nurseries (2017)1883, the report Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019)"1884, the affidavits submitted by Costa Rica, and Los Santos Zone 
(2007).1885 
 
1874 Costa Rica's response to Panel question No. 14, para. 2.  
1875 Costa Rica's response to Panel question No. 14, para. 2 (citing Cultural practices in sowing and 
managing avocado seeds in Costa Rica  (2019), (Exhibit CRI -44), p. 15).  
1876 Costa Rica's response to Panel question No. 14, para. 2 (citing Affidavit of Francisco Fallas Serrano  
(2019) , (Exhibit  CRI-46)). 
1877 Costa Rica's first written submission, para. 3.6 (citing Manual for Nurseries (2017), p. 30).  
1878 Costa Rica's response to Panel ques tion No. 102.  
1879 Costa Rica's response to Panel question No. 102.  
1880 Costa Rica's second written submission, para. 3.44.  
1881 Mexico's opening statement at the first meeting of the Panel, para. 8.  
1882 Appellate  Body Report, EC – Selected Customs Matters , para. 188. 
1883 Manual for Nurseries (2017), (Exhibit CRI -43). 
1884 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44). 
1885 Los Santos Zone (2007), (Exhibit MEX -97). WT/DS524/R  
- 270 - 
  7.1005.   The Manual for Nurseries (2017)  contains technical information on nursery management in 
Costa Rica, including seed selection and grafting practices.1886 
7.1006.   Throughout the proceedings, Costa Rica cites the Manual for Nurseries (2017) to support 
its argument that the origin of the seed is not always known .1887 The Manual for Nurseries states 
that, where seeds have been in contact with the soil or are of unknown provenance, they should be 
treated with lukewarm water at 50°C for around five minutes1888, which does not directly prove 
Costa  Rica's assertion that the origin of the seed is not always known . The Manual for Nurseries also 
recommends selecting seeds from trees that are good producers, and states that all nurseries should 
consider keeping and verifying a register in which the provenance o f the propagation material is 
recorded.1889 
7.1007.   During the proceedings, Costa Rica also cites this evidence to support its assertion that, in 
Costa Rica, the agricultural practice of grafting the Hass variety on to Hass rootstock is very 
widespread and has so fa r yielded positive results .1890 The Manual for Nurseries (2017) states that 
there have been positive experiences of using rootstock from the Guatemala, Hass and some criollo 
varieties1891, but does not specifically mention the use of Hass on Hass or indicate t hat this is a 
widespread practice.  
7.1008.   The report "Cultural practices in sowing and managing avocado seeds in Costa Rica (2019 )" 
of 10 October  2019 was drafted by the Centre for Research into Culture and Development of the 
State University of Distance Educatio n of Costa Rica.1892 
7.1009.   The report states that its objective is to document the characteristics of avocado seed 
sowing and management as a cultural practice in Costa Rica . It describes itself as an exploratory 
and descriptive report, based on a qualitative meth odology that is useful for learning more about 
the nature and characteristics of social phenomena . The report also states that it seeks to document 
the main avocado reproduction practices used in Costa Rica, in particular those relating to the 
resowing or diversion from intended use of seeds from fruit intended for consumption.1893 
7.1010.   With regard to methodology, the report notes that, initially, no systematic studies relating 
to the cultural management of avocado seed in the country were found to exist . The repo rt indicates 
that semi -structured interviews were therefore used to record the expert opinion of 21  people 
involved in the production and marketing of avocados or professionally linked to this area, and of 
one consumer who took part in an interview at an a gricultural fair.1894 
7.1011.   According to this study, it is highly unlikely that a person knows the origin of the avocados 
they buy, except when purchased directly from a domestic producer.1895 
7.1012.   The section on avocado reproduction and seed management by producers firs t addresses 
the subject of nurseries . An agronomist and official from the National Seed Office, which provides 
four nurseries with support in the certification process for genetic material for avocado propagation, 
states  that Hass and Guatemala rootstock are used in the Hass avocado grafting process, and that 
 
1886 Manual for Nurseries (2017), (Exhibit CRI -43). 
1887 Costa Rica's first written submission, para. 3.5; second written submission, para. 3.39; response to  
Panel  question No.  14, para. 2 (citing Manual for Nurseries (2017), (Exhibit CRI -43), p. 20).  
1888 Manual for Nurseries (2017), (Exhibit CRI -43), p. 20.  
1889 Manual for Nurseries (2017), (Exhibit CRI -43), pp. 19 and 36.  
1890 Costa Rica's first written submission, para. 3.6 (citing Manual for Nurseries (2017),  (Exhibit CRI -43), 
p. 30).  
1891 Manual for Nurseries (2017), (Exhibit CRI -43), p. 30.  
1892 Cultural practices in sow ing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44). 
1893 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44),  
p. 2. 
1894 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44),  
p. 2. 
1895 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
pp. 5-6. WT/DS524/R  
- 271 - 
  these varieties are promoted because they are very adaptable, flower more and produce more 
fruit.1896 
7.1013.   The report notes that INEC, Crops (2015) indicates that 65 % of far ms producing avocados 
do so using their own seed, 24 % using bought seed, and 10 % using seed of "other" origin.1897 
7.1014.   The report also notes that research into lowland avocados found that only 20 % of avocado 
trees and varieties in lowland areas came from nurseri es or had been obtained already grafted, while 
in most cases producers predominantly use their own seed or seed that they have collected.1898 
7.1015.   Regarding production in highland areas, the report indicates, citing 
CONSULSANTOS  (2010), that only in modernized av ocado orchards does most of the propagation 
material come from nurseries, while in traditional avocado orchards and avocado -coffee plantations, 
the predominant approach is to plant seeds directly . In coffee -avocado plantations, both practices 
are found wit h the same frequency . The report adds that, in terms of Costa Rica's territory, only in 
the canton of  El Guarco do the majority of avocado producers obtain their planting material from 
nurseries, while in the Los Santos zone, Desamparados and Corralillo de  Cartago, trees are 
reproduced mainly using rootstock seed, which is obtained from the farms themselves or their 
surrounding areas.1899 
7.1016.   In the report, a small -scale highland producer states  that it is common for the same farm 
to grow both grafted and non -grafted avocado trees, and that such trees may come from the farm's 
own seed, from municipal nurseries, from other producers as a gift or as part of an exchange, or 
from public institutions by way of donations .1900 Regarding the exchange of seeds, the report 
mentions that:  
a. A number of farmers interviewed say that, in some cases, seeds of unknown genetics are 
not trusted, while other producers exchange and reproduce seeds without any regard for 
this concern.1901 
b. It was noted that producers often try to reproduce in highland areas seed that has been 
given to them by lowland farms and vice versa, with relative success, meaning that seed 
mobility is common in national territory and seen as a form of experimentation and 
adaptation that is part of farming tra dition.1902 
c. Two interviewees said that they enjoyed participating in seed exchanges and in visit s to 
farms throughout the national territory, and that this had enabled them to improve their 
knowledge and production practices.1903 
7.1017.   The report further indicates t hat producers reproduce rootstock mainly by directly sowing 
their own seed .1904 The report notes that the interviewees said that grafts were made on to criollo 
 
1896 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 11. 
1897 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12 (citing INEC, Crops (2015), (Exhibit CRI -63)). 
1898 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12. 
1899 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1900 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12. 
1901 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12. 
1902 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12. 
1903 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 12. 
1904 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
pp. 12-13. WT/DS524/R  
- 272 - 
  rootstock, as well as Hass rootstock, and that the use of Hass rootstock also seemed to yield good  
results .1905 In this regard, the report presents the following testimonies:  
a. One producer believes that the best combination for a fruit tree is Hass with Hass, because 
of its resilience and the quality of the fruit, and that is the graft he usually uses to speed 
up and guarantee production.1906 
b. Another producer said that he did not know how grafting was handled on other farms, 
although he felt that Hass on criollo varieties or Hass on Hass was probably used, which 
is the system he produced with and which he ha d started using by accident.1907 
7.1018.   According to one interviewee, some producers graft avocado trees that have sprouted of 
their own accord regardless of the variety.1908 
7.1019.   Regarding the diversion from intended use of fruit for consumption, the report contains the 
following testimonies:  
a. One producer says that she has 10 trees grown from the seeds of avocados that she ate 
herself, interspersed with trees that that were given to her already grafted.1909 
b. Traders appeared to confirm the existence of the pract ice of using avocados sold for 
consumption as a source of seed for reproduction purposes . The report adds that one seller 
believes that seeds from avocados that have overripened or been bruised prior to being 
sold are often used for sowing, and that other sellers said they knew that some individuals 
occasionally bought quantities of overripe avocados and used them to start up 
nurseries.1910 
7.1020.   As regards the reproduction of avocados and the management of seed by non -producers, 
the report notes that, according to  an agronomist and her research in lowland areas, the 
reproduction of avocados by non -farmers is quite common because people like to consume the fruit, 
the seed is very easy, and where the seed is fresh, it is ideal for reproduction . The agronomist says 
that people continue to use seed a lot for propagation purposes because they do not know how to 
graft, and so they generally eat the avocado and sow the seed, because avocado seeds cannot be 
kept for a long time . She notes that, in lowland areas, most people  who cultivate avocados, 80 % of 
them, do so using seed because someone gave it to them and told them that it was very good, 
or because they ate the fruit and saw that it was good.1911 
7.1021.   The report also presents the testimony of a person who sells organic produ cts door -to-door 
in the Greater Metropolitan Area . This person believes that his customers plant the seeds of the 
avocados they buy as a way of raising the urban population's awareness of agriculture, and that this 
is a growing trend, with home and communi ty vegetable gardens in different places.1912 
 
1905 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019 ), (Exhibit  CRI-44), 
p. 14. 
1906 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 14. 
1907 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 14. 
1908 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
pp. 14-15. 
1909 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 15. 
1910 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 15. 
1911 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 15. 
1912 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 16. WT/DS524/R  
- 273 - 
  7.1022.   The report notes the comment that it is not unusual for an intelligent and experienced 
producer to be told by a relative to come and see their tree, to see that the avocado is very good, 
to take it and to remove its seed.1913 
7.1023.   The report states that one older man shared his own experience, which confirmed that 
some urban residents are interested in having a connection with agriculture and, in particular, 
avocado trees close to their homes, and recounted  that he had t wo seeds that were germinating, 
and that the seed is planted directly and no grafting is carried out.1914 
7.1024.   The report concludes that commercial avocado production has different characteristics 
depending on the altitudinal zone in which it takes place, the varieties used, and the experience and 
judgement of those involved . The report adds that the results of the rural cultural practice of 
exchanging and experimenting with different varieties of seeds, the habit of planting the seeds of 
various products consu med in the home, and the appreciation of avocados as a foodstuff, mean that 
planting the seeds of avocados intended for consumption is usually considered a natural and 
harmless practice.1915 
7.1025.   The Panel notes that, with the report Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019), Costa Rica seeks to substantiate the diversion from intended use by 
both producers and non -producers, and the use of Hass on Hass . The report contains assertions 
regarding the exchange of seeds, the use of H ass on Hass, the care of trees that germinate 
spontaneously, and the use of seed from avocados for market consumption . It was, however, 
prepared in 2019 mainly on the basis of the testimonies of 21 people, whose representativeness in 
relation to the PRA ar ea is not sufficiently explained, and, since it post -dates Reports  ARP-002-2017 
and ARP -006-2016, was not considered at the time of the preparation of those reports . Therefore, 
this information does not form part of the scientific basis used in the assessm ent and reasoning of 
the risk assessor.  
7.1026.   In order to substantiate the diversion from intended use and the use of Hass on Hass, 
Costa  Rica also submits the following five affidavits.  
7.1027.   In the Affidavit of Juan Gamboa Robles , of 2 3 September  2019, the farmer fr om 
León Cortés states that, for the purpose of his agricultural activity, plants are produced using the 
grafting system, which involves the use of rootstock or stock of the Hass variety and cuttings or 
buds for grafting of the same variety ; that this practice has achieved very good results in the field 
for many years, as well as there being genetic compatibility in terms of the materials used ; and that 
one of the main reasons for grafting Hass on to Hass is the high demand for this type of plant among 
farmers . He adds that he is aware that, in the area where he lives, it is customary for many people, 
after having purchased avocado fruit in the local market, and given that the avocados have certain 
optimal characteristics such as their size, colour, text ure and taste, to plant them in their gardens 
or on farms, with a view to propagating this plant.1916 
7.1028.   In the Affidavit of Francisco Fallas Serrano , of 2 3 September  2019, the producer and 
nurseryman from Pastora de Tarrazú states that he has used Hass seed as  rootstock to be grafted 
with Hass and with other varieties ; and that he is aware that avocado farming started out using 
seeds of uncertain origin, including seeds obtained from wholesale markets where avocado fruit was 
sold.1917 
7.1029.   In the Affidavit of Francisc o Cordero Navarro , of 2 3 September  2019, the farmer from 
Pastora de Tarrazú and manager of the nursery at the Tarrazú Cantonal Agricultural Centre states 
that seeds were used as criollo avocado rootstock from when the nursery was first established ; that 
 
1913 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 16. 
1914 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 16. 
1915 Cultural practices i n sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 18. 
1916 Affidavit of Juan Gamboa Robles  (2019) , (Exhibit CRI -45). 
1917 Affidavit of Francisco Fallas Serrano  (2019) , (Exhibit CRI -46). WT/DS524/R  
- 274 - 
  seeds were offered for sale to the Cantonal Agricultural Centre by local residents, then planted and 
later grafted with different varieties ; and that the Hass variety has been grafted since the 1990s.1918 
7.1030.   In the Affidavit of Daniel Ureña Zumbado , of 2 3 Septemb er 2019, the farmer from 
Santa  María de Dota states that he has grafted the Reed variety on to Hass rootstock on his property ; 
and that he knows producers and nursery workers who graft Hass on to Hass.1919 
7.1031.   In the Affidavit of Francisco Elizondo Ureña , of 2 3 September  2019, the farmer from 
San Juan de San Marcos de Tarrazú, who produces avocados for his own use, states that, for the 
purpose of his agricultural activity, plants are produced using the grafting system, which involves 
the use of rootstock or stock  of the Hass variety and cuttings or buds for grafting of the same 
variety.1920 
7.1032.   The Panel notes that the above -mentioned affidavits seek to support Costa Rica's assertions 
that the country's farmers graft Hass on to Hass and sometimes use seeds of uncertain origin or 
from fruit bought at markets . However, these are individual affidavits from five people, whose 
representativeness in relation to the PRA area is not explained, and, since they post -date 
Reports  ARP-002-2017 and ARP -006-2016, were not considered a t the time of the preparation of 
those reports . Therefore, this information does not form part of the scientific basis used in the 
assessment and reasoning of the risk assessor.  
7.1033.   Los Santos Zone (2007)  is a report containing information on the avocado agric ultural chain 
in Costa Rica, particularly in the Los Santos zone, and includes data on its development, the climate 
and the edaphoclimatic requirements for Hass avocados, national distribution and cultivation areas, 
genetic material, production, transport,  storage and distribution, and marketing.1921 
7.1034.   Costa Rica cites the Los Santos Zone (2007) report when asserting that producers in 
Costa  Rica initially used criollo rootstock, but that criollo trees were never very good for growing 
avocados, and that therefor e, subsequently, in the early 1990s, the Hass avocado began to be used 
as rootstock, this being one of the best for the soil in the area .1922 Costa Rica also cites Los  Santos 
Zone (2007) in its assertion that grafting Hass on to Hass rootstock is a widespread agricultural 
practice in Costa Rica.1923 
7.1035.   The report notes that commercial avocado growing was not very profitable until the Hass 
variety began to be used, and that with the introduction of the Hass variety in 1985 -1986 through 
the Tarrazú Cantonal  Agricultural Centre the activity started to improve, with material being 
reproduced in nurseries and directly in the field . The report indicates that this led to the majority of 
producers changing the crowns (grafts) of other varieties to Hass . Regarding rootstock, the report 
adds that criollo trees were used in the region, which were never very good for growing avocados, 
and that, subsequently, in the early 1990s, the Hass avocado began to be used as rootstock, this 
being one of the best for the soil in t he area.1924 
7.1036.   The Panel observes that the Los Santos Zone (2007) report supports Costa Rica's assertion 
concerning the use of Hass as rootstock in the Los Santos region, indicating that Hass had shown 
itself to be one of the best for the soil in the area, but  does not support the assertion that grafting 
Hass on to Hass rootstock is a widespread agricultural practice in Costa Rica . The Panel recalls that, 
in any case, the report is not a source for Reports ARP -002-2017 and ARP -006-2016, and that this 
informatio n therefore does not form part of the scientific basis used in the assessment and reasoning 
of the risk assessor.  
7.1037.   The Panel considers that Costa Rica has made efforts during the course of these proceedings 
to document diversion from intended use and to rei nforce its evidence concerning the use of Hass 
as rootstock by submitting additional information . This information is not, however, reflected or 
 
1918 Affidavit of Francisco Cordero Navarro  (2019) , (Exhibit CRI -47). 
1919 Affidavit of Daniel Ureña Zumbado  (2019) , (Exhibit CRI -48). 
1920 Affidavit of Francisco Elizondo Ureña  (2019) , (Exhibit CRI -49). 
1921 Los Santos Zone (2007), (Exhibit MEX -97). 
1922 Costa Rica's first written submission, paras.  3.6 and 5 .122; second written submission, para. 3.39; 
specific comments on the experts' responses to Panel questions Nos. 17, 62 and 107 -110 for the experts.  
1923 Costa Rica's first written submission, para. 5.125.  
1924 Los Santos Zone (2007), (Exhibit MEX -97), p. 7.  WT/DS524/R  
- 275 - 
  analysed in the risk assessment contained in Reports ARP -002-2017 and ARP -006-2016, which form 
the basis for Co sta Rica's phytosanitary requirements.  
7.1038.   Furthermore, while Costa Rica's efforts appear to be on the right track, in this Panel's view, 
the evidence provided is still insufficient to document the diversion from intended use of fresh fruit 
for consumption in such a way as to allow for a qualitative or quantitative assessment of the 
probability of entry, establishment or spread of ASBVd in Costa Rica that properly considers such 
diversion from intended use . In addition, there are still no estimates, whether qua litative or 
quantitative, concerning the magnitude  of diversion from intended use.  
7.1039.   It should be added that the experts consulted had no direct knowledge of the use of Hass 
as rootstock or of the diversion from intended use of avocados in Costa Rica specifi cally. 
7.4.5.3.3.6   Discussion on the viability of the use of Hass as rootstock  
7.1040.   To refute the assertions contained in Reports ARP -002-2017 and ARP -006-2016 on the use 
of Hass as rootstock, Mexico  argues that no country in the world uses or mentions the Hass variety 
as rootstock in the industrial production of avocados .1925 Mexico points out that, in its industry's 
experience, the use of Hass as rootstock produces weak, thin, and poor -quality seedlin gs with small 
roots. In Mexico's view, Hass avocado seeds are not a viable technological alternative for use as 
rootstock on commercial orchards because the fruit thus produced does not retain the favourable 
characteristics of the Hass cultivar.1926 
7.1041.   In respo nse to Costa Rica's assertion that its avocado production is not highly sophisticated 
and there are no extensive, modern plantations, Mexico contends that Costa Rica has not only 
increased its production, but has also substantially improved its domestic pr ogrammes for 
modernization and the development of good practices .1927 In support of its argument, Mexico 
submits a time series analysis of the technological development of the production system of 
avocados and other crops such as coffee in Costa Rica, in whi ch Mexico states that Costa  Rica has 
increased its production for domestic consumption, and that the rise in production has allowed it to 
increase its exports by 420 %.1928 The document also refers to the  National Plan for Strengthening 
the Avocado Sector in Costa Rica (2019).1929 
7.1042.   Mexico notes that the use of Hass seed affects the plant's vigour, and hence its germination, 
and that a seed from an avocado native to Costa Rica will be better suited to the territory's 
conditions.1930 
7.1043.   Mexico considers that, by reading the statements of the expert Fernando  Pliego  Alfaro 
holistically, it is very easy to conclude that grafting Hass on Hass is not a common practice in 
developed agricultural sectors because commercially viable results cannot be obtained from a 
seedling identified as being of medium quality.1931 
7.1044.   For its part, Costa Rica  submits that the agricultural practice of grafting the Hass variety 
onto Hass rootstock is very widespread and has yielded positive results in terms of both volume and 
 
1925 Mexico's first written submission, para. 22.  
1926 Mexico's response to Panel question No. 11, para. 33 (citing Declaración Jurada del Dr Daniel Téliz 
Ortiz, 4 de diciembre de 2019 ( Affidavit  of Dr Daniel Téliz Ortiz  (2019)) , (Exhibit  MEX-187)); second written 
submission, para. 86 (citing Affidavit of Dr Daniel Téliz Ortiz  (2019) , (Exhibit  MEX-187)). 
1927 Mexico's comments on Costa Rica's response to Panel questions, pp. 12 -13 (citing Mexico, Avocado 
and coffee production in Costa Rica  (2020) , (Exhibit MEX -286)). 
1928 Mexico, Avocado and coffee production in Costa Rica (2020), (Exhibit MEX -286), p. 3.  
1929 Mexico, Avocado and coffee production in Costa Rica (2020), (Exhibit MEX -286), pp. 5 -7 (referring 
to Ministerio de Agricultura y Ganadería  (MAG)  de Costa Rica e  Instituto Interamericano de Cooperación para la 
Agricultura (IICA), Representación Costa Rica, "Plan Nacional de Fortalecimiento del Sector Aguacatero", 26 de 
junio 2019 ( MAG, IICA, National Avocado Production Plan  (2019) ), (Exhibit CRI -1)). 
1930 Mexico's co mments on Costa Rica's response to Panel question No. 166, para. 1.  
1931 Mexico's comments on Costa Rica's response to Panel question No. 166, para. 3 (citing Fernando 
Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, p p. 61-63). WT/DS524/R  
- 276 - 
  quality of fruit1932, and that grafts of Hass on Hass are considered to be a good combination because 
of their strength and the quality of the fruit produced.1933 
7.1045.   Costa Rica adds that the practice of grafting Hass onto Hass must be understood in context 
and in light of the ch aracteristics of avocado crops in Costa Rica, where avocado crops are grown by 
small farmers mainly for their own consumption and as a secondary agricultural activity to 
coffee -growing, and where most avocados producers are small -scale farmers and, in many  cases, 
with little technical knowledge .1934 According to Costa Rica, avocado production in the country is not 
highly sophisticated nor are there modern orchards, and its avocado production is sustained by a 
large number of small -scale farmers with limited r esources.1935 
7.1046.   Costa Rica states that it is indisputable that no farmer in any country would use rootstocks 
that do not work, even though agricultural practices may be improving and progressing with the 
development of the industry concerned, and that, notwith standing the possible theoretical discussion 
about the best varieties of seed to produce a rootstock, in Costa Rica, farmers successfully use the 
Hass seed to obtain a rootstock and graft Hass onto it . In Costa Rica's view, this is the existing 
practice an d it should be considered – as it indeed was – in the risk analysis as a factor that increases 
the risk of diversion from intended use of the seeds of Hass avocados for consumption.1936 
7.1047.   The Panel  notes that the experts have no direct knowledge of the use of Hass as rootstock 
in Costa Rica, but they have commented on the viability of the practice in general.  
7.1048.   The avocado cultivation expert, Fernando Pliego Alfaro, states that the Hass variety can be 
used as rootstock, but it is not a very common practice in the  avocado industry because seeds of 
other varieties give better plants, and that the practice is widespread when seeds of other varieties 
are unavailable and where the plant breeding industry is not very well developed . Mr Pliego  Alfaro 
adds that the clonal  Hass variety is never used as rootstock because it does not make sense to do 
so; that Hass seeds can be used which, once germinated, are grafted with the Hass variety, albeit 
with possibly poor agronomic performance ; and that it is not a very widespread p ractice .1937 For his 
part, the expert Ricardo Flores Pedauyé is of the view that it is not common, but if the rootstock is 
used, whether it is good or not will depend on soil adaptation, and he agreed that the results varied 
according to territory . Mr Flores  Pedauyé add s that, in modern fruit cultivation, close attention is 
generally paid to the material used as rootstock, but this is perhaps not the case among small 
producers in Costa Rica.1938 
7.1049.   The expert Fernando Pliego Alfaro reiterates that using the Hass variety as rootstock is not 
good practice and those who understand avocados would not use it, but it depends on the level of 
development of the country's avocado industry .1939 Regarding the sowing of avocado seeds, 
Mr Pliego Alfaro states that someone w ho plants a seed in a backyard or garden will probably not 
graft it, and someone who understands avocados and cultivation would not be interested in growing 
an avocado plant from seed because it would have no commercial viability.1940 
7.1050.   This shows that, in the  experts' view, the use of Hass as a rootstock is possible, but does 
not yield positive results and is not a practice that is used in developed industries.  
7.1051.   As regards whether Costa Rica's industry is technically sophisticated, the Panel notes that 
the CONS ULSANTOS (2010) report states that the type of avocado farmer in the area of study, 
i.e. the Los Santos, Frailes and Corralillo zone, are small producers .1941 The report states that only 
 
1932 Costa Rica's first written submission, paras.  3.6, 5.122 and 5.125; second written submission, 
para. 3.42; and response to Panel question No. 166, para. 190.  
1933 Costa Rica's second written submission, para. 3.39.  
1934 Costa Rica's specific comments on Panel question No. 62 for the experts.  
1935 Costa Rica's specific comments on Panel questions Nos. 12 and 13 for the experts.  
1936 Costa Rica's response to Panel question No. 166, para. 190.  
1937 Fernando Pliego Alfaro's response s to Panel questions Nos . 17 and 18 for the experts.  
1938 Ricardo Flores Pedauyé's response s to Panel questions Nos. 17 and 18 for the experts.  
1939 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, 
p. 16. 
1940 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, 
p. 16. 
1941 CONSULSANTOS (2010), (Exhibit MEX -119), p. 21.  WT/DS524/R  
- 277 - 
  4.2% of all producers surveyed appear to fall into the "technically sophisticated" category, meeting 
at least eight of the variables established.1942, 1943 
7.1052.   The Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019) report 
also states that, as  reported in the Agricultural Census, 76 % of farms produce avocado mainly for 
on-farm consumption and production techniques appear to not be very sophisticated.1944,1945, 
7.1053.   The Panel does not consider Mexico's argument concerning the viability of the use of Hass  
rootstock to be decisive in this case because the situation and practices of avocado producers in 
Costa Rica might differ from those of producers in Mexico . Therefore, considering that the Panel's 
task is to analyse the scientific basis for the risk asses sment, the Panel's analysis as set out above 
focused on how Costa Rica documented its agricultural practices in relation to diversion from 
intended use, and not on Mexico's arguments rejecting the use of Hass as rootstock.  
7.4.5.3.3.7   The relevance of spontaneous germ ination in Reports ARP -002-2017 and 
ARP-006-2016  
7.1054.   As mentioned above, Mexico  submits that fresh avocados imported for consumption are 
not, in themselves, the pathway for the entry, establishment or spread of the viroid given that, in 
any event, it would be a subsequent occurrence, in other words, the diversion from intended use or 
the discarding of the seed, a factor that was not considered by Costa Rica in its PRAs.1946 
7.1055.   Mexico submits that, as diversion from intended use and spontaneous germination play a 
dominant role in the risk analysis, any errors and omissions with regard to these elements affect the 
reliability of the risk analysis and the probability calculation.1947 
7.1056.   Mexico considers that Costa Rica assigned fundamental value to diversion from intended 
use as a cultural practice and as spontaneous germination . However, the analysis in its PRAs does 
not reflect this concern and instead gives a pretext for regarding this factor as an issue of 
uncertainty.1948 
7.1057.   Costa Rica  asserts that spontaneous germination did  not carry the same weight as 
diversion from intended use in the assessment of the factors and probabilities . Costa Rica points out 
that the risk analyst highlighted the country's unique climatic conditions and the capacity of avocado 
seeds to germinate wi thout further requirements or processing as a major issue.1949 
7.1058.   Costa Rica further notes that its risk assessment found that, in addition to tropical dry 
forests, the main life zones in the country are tropical and premontane moist and wet forests, and 
that, as Mexico acknowledges, for recalcitrant seeds such as those of avocados, moisture is the most 
critical factor that determines seeds' viability and longevity because they are sensitive to desiccation . 
Costa Rica adds that its wet climate prevents des iccation of avocado seeds which, furthermore, are 
less likely to be affected by fluctuations in humidity prior to germination.1950 
 
1942 The variables established were: whether pruning is carried out, whether soil analyses are conducted, 
whether leaf a nalyses are conducted, whether agricultural lime is added to the soil, whether biological controls 
are applied, whether seeds are selected, whether buds are selected, the planting distance, fruit yield per tree, 
and whether records are kept. (CONSULSANTOS (2010), (Exhibit MEX -119), p. 40)  
1943 CONSULSANTOS (2010), (Exhibit MEX -119), pp. 40 -41. 
1944 Referring to the Agricultural Census, the report states that on more than 70 % of farms no 
insecticide, fungicide, or other type of pesticide is used; that more than 40 % used no fertilizer of any kind; and 
that less than 8 % have some kind of irrigation system. ( Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019), (Exhibit CRI -44), p. 7)  
1945 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), p. 
7 (referring to INEC, Crops (2015), (Exhibit CRI -63); and INEC, Agricultural statistical atlas (2015), 
(Exhibit  CRI-64)). 
1946 Mexico's second written submission, para. 124.  
1947 Mexico's comments on Costa Rica's response to Panel question No. 163, para. 3.  
1948 Mexico's response to Panel question No. 163, para. 134.  
1949 Costa Rica's response to Panel question No. 163, para. 186; comments on Mexico's response to 
Panel question No.  163, para. 92 (citing ARP -002-2017, (Exhibit MEX -84), p. 7).  
1950 Costa Rica's first written submission, para. 5.121.  WT/DS524/R  
- 278 - 
  7.1059.   Costa Rica adds that, when it mentions germination of seeds, it is referring solely to places 
that are conducive to germination , and that this would include backyards but not industrial landfill 
sites, for example.1951 
7.1060.   The Panel  observes that Reports ARP -002-2017 and ARP -006-2016 state that avocado can 
be grown at altitudes from sea level up to 2,500 masl ; that temperature and rainf all are the two 
most critical factors for crop development ; that, with regard to temperature, the cultivars used 
behave differently depending on their genetics, which allows them to adapt to most of the national 
territory ; that 1,200  mm of rainfall annuall y, distributed evenly throughout the year, are sufficient 
to meet its water needs1952; and that excess precipitation during the flowering and fruit setting 
stages reduces yield and causes the fruit to fall.1953 
7.1061.   Reports ARP -002-2017 and ARP -006-2016 also note t hat, in the cantons of  
León Cortés,  Tarrazú and Dota, the avocado seeds of fruits that fall on the ground are left to 
germinate in the field by themselves . When producers find them, they tend the plants and then graft 
them to obtain a new, low -cost plant.1954 
7.1062.   Reports ARP -002-2017 and ARP -006-2016 mention that, according to Holdridge's (1987) 
classification of climatic zones, the main life zones in Costa Rica are tropical moist forest, tropical 
dry forest, tropical wet forest, premontane moist forest and premo ntane wet forest1955; that the life 
zones of tropical dry forest have a marked dry season, during which avocado seeds dry up when 
they fall to the ground and do not germinate ; that the dry season runs from December to May ; and 
that the rest of the year is ra iny, with weather conditions optimal for the germination of the seed 
without human assistance.1956 
7.1063.   Reports ARP -002-2017 and ARP -006-2016 add that there are endemic avocado varieties in 
Costa Rica1957, which are both wild and cultivated ; that, unlike other parts of the world, a series of 
optimal climatic conditions for the germination of avocado seeds exist in Costa Rica ; that in 
Costa  Rica these seeds do not need any special treatment or care to ensure their germination ; that 
the seeds germinate without hum an assistance when they fall naturally or are discarded in gardens, 
the countryside and fields where avocado is cultivated1958; and that this situation does not arise in 
other countries, leading to considerable disparities with the possible regulations adopt ed by countries 
with different climatic conditions that import fresh avocado fruit for human consumption.1959 
7.1064.   Reports ARP -002-2017 and ARP -006-2016 state that, in the probability tables, in the 
section on the intended use of fresh fruit for consumption, the Costa Rican authorities, on the 
understanding that the fruit is imported with the intended use of consumption, will assign it the 
corresponding values in the PRA . Reports ARP -002-2017 and ARP -006-2016 clarify, however, that, 
as the seed and skin are not co nsumed, the potential of this waste to introduce and subsequently 
spread quarantine pests is analysed1960; and that diversion from intended use was considered 
 
1951 Costa Rica's response to Panel question No. 165, para. 188.  
1952 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing Garbanzo Solís (2011), (Exhibit MEX -125)); 
ARP-006-2016, (Exhibit MEX -85), p. 4 (citing Garbanzo Solís (2011), (Exhibit MEX -125)). 
1953 ARP-002-2017, (Exhibit MEX -84), p. 4; ARP -006-2016, (Exhibit MEX -85), p. 4.  
1954 ARP-002-2017, (Exhibit MEX -84), pp. 5 -6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1955 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing Holdridge (1982), (Exhibit CRI -122)); ARP -006-2016, 
(Exhibit  MEX-85), p. 7 (citing Holdridge (1982), (Exhibit CRI -122)). Reports ARP -002-2017 and ARP -006-2016 
refer to Holdridge (1987), but the corresponding exhibit, submitted by Costa Rica, is dated 1982.  
1956 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing CON SULSANTOS (2010), (Exhibit MEX -119)). 
1957 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
1958 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
1959 ARP-002-2017, (Exhibit MEX -84), p. 7; ARP -006-2016, (Exhibit MEX -85), p. 7.  
1960 ARP-002-2017, (Exhibit MEX -84), p. 8; ARP -006-2016, (Exhibit MEX -85), p. 11.  WT/DS524/R  
- 279 - 
  because, given the quantity of fruit that is imported, the NPPO would be hard -pressed to be able to  
track the fruit after import1961 and the viable seed borne therein.1962 
7.1065.   In the section on the probability of entry of ASBVd in Reports ARP -002-2017 and 
ARP-006-2016, the probability of transfer to a suitable host was considered high, inter alia , since 
the pro bability related to the risks from by -products and waste was also deemed to be high, after it 
was determined that the waste of fresh avocado fruit are the skins and seeds ; that, as it contains a 
viable seed, there is a risk of pest introduction through the waste1963; and that the germination of a 
seed from a symptomless fruit would introduce the pest into the PRA area.1964 
7.1066.   In the section on the probability of establishment of ASBVd of Reports ARP -002-2017 and 
ARP-006-2016, the probability related to availabilit y of suitable hosts, alternate hosts and vectors 
in the PRA area was deemed to be low, after it was determined that the viroid has been found 
exclusively in Persea americana  Mill.1965 Reports ARP -002-2017 and ARP -006-2016 note that, in the 
case of seeds that germinate from imported avocado fruit, either because the waste (seed) was 
disposed of in a place suitable for seed germination or because it was diverted from its intended 
use, the pest would already be systemic in the host plant's tissue.1966 
7.1067.   As also stated in the section on the probability of establishment of ASBVd, the probability 
related to suitability of environment was deemed to be high, after it was determined that the 
conditions this pest needs to survive are those required by the host , the avoc ado tree1967; that the 
avocado is a plant native to Mesoamerica1968; and that the environment of the PRA area is favourable 
for this pest.1969 
7.1068.   In the section of Reports ARP -002-2017 and ARP -006-2016 on the probability of spread of 
ASBVd, the probability related to the suitability of the natural or managed environment for natural 
spread of the pest was deemed to be high, after it was determined that the environment is ideal for 
the spread of the pest, given that host plants are found across the PRA area.1970 
7.1069.   In the sections on entry and spread of ASBVd, the probability related to the intended use 
of the commodity was deemed to be medium , after it was determined that its intended use is 
consumption.1971 
7.1070.   In light of the foregoing, the Panel notes that the introductory se ction of Reports 
ARP-002-2017 and ARP -006-2016 mentions that Costa Rica's weather conditions are ideal for 
avocado seeds that fall or are discarded to germinate without human assistance, and that the 
potential of avocado waste to introduce and spread ASBVd  was analysed . The Panel notes that the 
sections on the probability of entry, establishment and spread include considerations regarding 
Costa  Rica's ideal environment for ASBVd and the germination of discarded seeds.  
7.1071.   In this Panel's view, considering the m anner in which Reports ARP -002-2017 and 
ARP-006-2016 deal with topics related to spontaneous germination in both their introductory section 
 
1961 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing IPPC Secretariat, "Diversion from intended use" 
(2016), (Exhibit  MEX-124)); ARP -006-2016, (Exhibit MEX -85), pp. 11 -12 (citing IPPC Secretariat , "Diversion 
from intended use" (2016), (Exhibit MEX -124)). 
1962 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing Spalding et al. (1976), (Exhibit MEX -133)); 
ARP-006-2016, (Exhibit MEX -85), p. 12 (citing Spalding et al. (1976), (Exhibit MEX -133)). 
1963 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 18.  
1964 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), pp. 18 -19 (citing Ploetz et al. (2011), (Exhibit MEX-56)). 
1965 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Horne (1934), (Exhibit CRI -138)); ARP -006-2016, 
(Exhibit  MEX-85), p. 19 (citing Horne (1934), (Exhibit CRI -138)). 
1966 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 19 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
1967 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 19.  
1968 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
1969 ARP-002-2017, (Exhibit MEX -84), pp. 38 -39 (citing Holdridge (1982), (Exhibit CRI -122)); 
ARP-006-2016, (Exhibit MEX -85), p. 19. Report ARP -002-2017 refers to Holdridge (1987), but the 
corresponding exhibit, submitted by Costa Rica, is dated 1982.  
1970 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing INEC, Crops (2015), (Exhibit CRI -63); and INEC, 
Agricultural statistical atlas (2015), (Exhibit CRI -64)); ARP -006-2016, (Exhibit MEX -85), p. 20 (cit ing INEC, 
Crops (2015), (Exhibit CRI -63); and INEC, Agricultural statistical atlas (2015), (Exhibit CRI -64)). 
1971 ARP-002-2017, (Exhibit MEX -84), pp. 38 and 40; ARP -006-2016, (Exhibit MEX -85), pp. 18 and 21.  WT/DS524/R  
- 280 - 
  and in the assessment of the probability factors and elements, and as Costa Rica confirms 
(by pointing out that the risk analyst highlighted the country's unique climatic conditions and the 
capacity of avocado seeds to germinate without further requirements or processing as a major 
issue), there is no doubt that spontaneous germination is an important premise of the ris k 
assessment, which permeates the assessment of the probability of entry, establishment and spread 
of ASBVd in Reports ARP -002-2017 and ARP -006-2016.  
7.1072.   The Panel considers spontaneous germination to be an aspect to which great importance is 
attached in the a ssessment of certain elements of the analysis and in the probability estimates . If 
spontaneous germination as a result of the disposal of seeds of fresh avocados for consumption were 
not taken into considerat ion, it would appear that Costa Rica would have significantly fewer concerns, 
or maybe even none at all, regarding the entry, establishment and spread of ASBVd via the pathway 
of fresh fruit imported for consumption, in relation to gardens, backyards, landfill sites and areas 
with wild trees.  
7.4.5.3.3.8   The import ance of documenting spontaneous germination in Reports 
ARP-002-2017 and ARP -006-2016  
7.1073.   México  submits that the practice of diversion from intended use should be documented in 
the PRA, especially because Costa Rica presents diversion from intended use as an argument for 
increasing the risk and bases its analysis on diversion from intended use and s pontaneous 
germination .1972 According to Mexico, Costa Rica failed to evaluate the uncertainty arising from 
diversion from intended use due to cultural practices and spontaneous germination, such that the 
assessment cannot be categorized as reliable or accurate .1973 Mexico adds that the lack of scientific 
evidence should not be justified simply on the grounds of uncertainty, particularly if the alleged risk 
is based precisely on that factor.1974 
7.1074.   Mexico states that there are no quantitative or qualitative dat a in the PRA on the probability 
of entry, establishment and spread of ASBVd arising from the diversion from intended use of 
imported avocados from which seed is extracted for planting and propagation purposes, or seeds 
that germinate spontaneously in natur al areas, in backyards, in gardens, on farms, at waste disposal 
centres, in rubbish dumps and at landfill sites.1975 
7.1075.   Mexico states that the risk assessment does not consider data related to uncertainty, and 
that the experts pointed out that Costa Rica should  have documented the practice of diversion from 
intended use in its risk assessment, which confirms that the mere mention of the practice does not 
equal compliance with Article  5.1 of the SPS  Agreement  or the relevant international standards.1976 
7.1076.   Mexico cons iders that Costa Rica assigned fundamental value to diversion from intended 
use as a cultural practice and as regards spontaneous germination . However, the analysis in its PRAs 
does not reflect this concern, but instead gives a pretext for regarding this f actor as an issue of 
uncertainty.1977 
7.1077.   Costa Rica  submits that the natural germination of seeds on wasteland or in backyards is 
common in Costa Rica, which was taken into account as a risk factor for the establishment of 
ASBVd.1978 
7.1078.   With regard to waste, Costa R ica points out that, in accordance with ISPM No. 11, the 
introduction of the viroid through waste was considered to be the combination of the probabilities of 
entry and establishment, and the germination of the seed was considered to be highly likely, both  
spontaneously (owing to climatic conditions and waste management) and as a result of diversion 
from intended use (which is a common and very widespread practice in Costa Rica) . Costa Rica adds 
that it is its understanding that the experts would have welco med the inclusion of estimates to 
 
1972 Mexico's specific comments on the experts' responses to Panel questions Nos. 107, 108, 111 
and 113 for the experts.  
1973 Mexico's specific comments on the experts' responses to Panel question No. 95 for the experts.  
1974 Mexico's response to Panel question No. 161, para. 118.  
1975 Mexico's response  to Panel question No. 161, para. 119.  
1976 Mexico's response to Panel question No. 163, para. 139.  
1977 Mexico's response to Panel question No. 163, para. 134.  
1978 Costa Rica's second written submission, para. 3.38.  WT/DS524/R  
- 281 - 
  determine the probability of introduction via diversion from intended use and waste in the PRA, and 
that the estimates are useful when reliable data are available for a previous period that can be used 
as a benchmark to ju dge what will happen in a subsequent period, but that in Costa Rica such 
baseline data do not exist.1979 
7.1079.   Costa Rica does not regard the acknowledgement of the absence of data relating to a 
specific point in the PRA as a methodological flaw that invalidates t he risk analysis exercise . On the 
contrary, as the expert Robert Griffin pointed out, it is important to detect the uncertainties because 
"if we know what the uncertainties are, then we can address those uncertainties with research" .1980 
Costa Rica refers to  the point made by Mr Griffin that "[the risk analysis] process [should always be] 
open to evolution and improvement … It should never be static, it always needs to be open for 
improvement and for new and better information, different methodologies, whatev er is appropriate, 
but should never be a static process" .1981 Costa Rica states that a country cannot be expected to 
refrain from adopting phytosanitary measures against the risk of introduction of a pest until it has 
obtained all necessary information to di spel the existing uncertainties.1982 
7.1080.   The Panel  asked the experts how the risk arising from the disposal of fruit for consumption 
infected with ASBVd should be assessed in a risk analysis.  
7.1081.   The expert Robert Griffin states that the issue with the disposal of A SBVd -infected fruits is 
the potential for the seed to be disposed of in a way that allows for germination . According to the 
expert, because avocado seeds are not consumed and are relatively large and hard, the majority 
will go into domestic garbage ; and that because they are also organic, some may be recycled in 
compost or simply discarded into the environment . Mr Griffin considers that, from a PRA standpoint, 
some estimate is needed for the proportions of each scenario, and some knowledge is needed 
regar ding the garbage disposal system . It is not good enough to simply assume that deviation will 
be 100 %. There must be a good faith effort to characterize the situation with reasonable estimates 
and assumptions in the absence of hard data.1983 
7.1082.   In accordance wit h the expert's statements, and given the importance of spontaneous 
germination for the calculation of probabilities in Reports ARP -002-2017 and ARP -006-2016, the 
Panel considers that Costa Rica should have documented the occurrence of spontaneous germinati on 
and estimated its probability.  
7.1083.   In the Panel's view, while it is an area of uncertainty that is difficult to document, Costa  Rica 
should have gathered evidence to substantiate the existence of spontaneous germination, estimated 
its scale in either quanti tative or qualitative terms, and documented the degree of uncertainty, as in 
the case of diversion from intended use.  
7.1084.   The Panel recalls that the existence of unknown and uncertain elements does not justify a 
departure from the requirements of Articles 5.1,  5.2 and 5.3, read together with paragraph  4 of 
Annex A, for a risk assessment.1984 
7.1085.   The Panel will now analyse the evidence put forward by Costa Rica, in 
Reports  ARP-002-2017 and ARP -006-2016 and throughout the proceedings, in relation to the 
spontaneous ger mination of discarded seeds of fresh avocados for consumption . It will also briefly 
address Mexico's argument concerning the occurrence of spontaneous germination in Costa  Rica. 
 
1979 Costa Rica's specific comments on the experts ' responses to Panel questions Nos. 107 -110 for 
the experts.  
1980 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, p.  42). 
1981 Costa  Rica's comments on Mexico's response to Panel question No. 161, para. 83 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p.  55). 
1982 Costa Rica's comments on Mexico's response to Panel question No. 161, par a. 83.  
1983 Robert Griffin's response to Panel question No. 110 for the experts.  
1984 Appellate Body Report, Australia – Salmon , para. 130.  WT/DS524/R  
- 282 - 
  7.4.5.3.3.9   Sources cited in support of the statements regarding spontaneous 
germination i n Reports ARP -002-2017 and ARP -006-2016  
7.1086.   Mexico  argues that Costa Rica failed to demonstrate in its PRAs with scientific evidence 
that its climatic conditions are conducive to the germination of the seeds of fruit imported for 
consumption from Mexico.1985 
7.1087.   Mexico indicates that Costa Rica failed to consider in its PRAs the differences between the 
sites in which the seeds could be discarded, since it only justifies its claim by referring to 
New Zealand 's assertion that it "considers the waste generated by avo cado imports (skin and seed) 
to be a pathway" (Biosecurity, 1998), without the SFE providing any further evidence or documents 
on this assertion.1986 
7.1088.   As part of its arguments on whether the risk assessment is appropriate to the 
circumstances, Mexico asserts that the climatic conditions in the Los Santos zone are not a 
circumstance that justifies an increased probability of ASBVd transmission .1987 Mexico submits that, 
while Costa Rica considers that its climatic conditions are optimal for the germination of avoc ado 
seeds without human assistance, its arguments are contradictory and based on a socio -economic 
census of production that cannot be considered to be valid scientific evidence for establishing an 
objective, scientific and logical link between the transmis sion of ASBVd and the probability of a seed 
germinating because it may be discarded on the ground.1988 
7.1089.   Also as part of its arguments on whether the risk assessment is appropriate to the 
circumstances, Mexico argues that two references to CONSULSANTOS (2010) are the only sources 
cited by Costa Rica to prove that the climatic conditions of its territory are conducive to the 
germination of avocado seeds without human assistance . In Mexico's view, the two statements 
contradict each other by, on the one hand, refe rring to a seasonal limitation on seed germination 
and, on the other hand, stating that the seeds may germinate naturally at any time due to 
Costa  Rica's climatic circumstances.1989 
7.1090.   Mexico contends that these citations are incorrect because the climate is not the only factor 
that needs to be considered in order for a germination process to be successful . Indeed, other factors 
must be considered in addition to the climate, such as elevation, soil quality and characteristics, soil 
moisture, seed vi ability, the decomposition process, and seed disinfection and sowing methods . 
Mexico adds that it would appear that Costa Rica is seeking only to protect wild avocados, when the 
PRAs show that it wishes to protect commercial orchards.1990 
7.1091.   Costa Rica  submits that it conducted its risk assessment on the basis of the available 
scientific evidence relating to ASBVd, and that it found that scientific evidence exists to show that 
Costa Rica's climatic conditions are suitable for the germination of an avocado plant throughout most 
of the year .1991 Costa Rica states that the edaphoclimatic requirements for Hass avocados are an 
elevation of 1,000 -2,000 masl, a temperature of 16 -18°C, and rainfall of 1,200  mm per year1992, 
and that, as reflected in the CONSULSANTOS study (2 010), the elevation in the Los Santos zone is 
1,200 -1,900 masl, the average annual temperature is 19°C, and the average rainfall is 2,400  mm 
per year.1993 
 
1985 Mexico's first written submission, para. 418.  
1986 Mexico's comments on Costa Rica's response to Panel question No. 165, pa ra. 1.  
1987 Mexico's first written submission, p. 93.  
1988 Mexico's first written submission, para. 390.  
1989 Mexico's first written submission, paras.  391-392. 
1990 Mexico's first written submission, paras.  393-394. 
1991 Costa Rica's first written submission, paras.  5.121 and 5.152; second written submission, para. 3.55 
(citing Galindo Tovar et al. (2008), (Exhibit MEX -22); CONSULSANTOS (2010), (Exhibit MEX -119), p. 15; and 
O'Neal Katzy Coto, "Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (29 de mayo de 2019) 
("Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019)), (Exhibit CRI -58)). 
1992 Costa Rica's first written submission, para. 5.121 (citing Los Santos Zone (2007), (Exhibit MEX -97), 
p. 8). 
1993 Costa Rica's first writ ten submission, para. 5.121 (citing CONSULSANTOS (2010),  
(Exhibit MEX -119), p. 15). WT/DS524/R  
- 283 - 
  7.1092.   Costa Rica notes that its risk assessment found that, in addition to tropical dry forest, the 
main life  zones in the country are tropical and premontane moist and wet forests1994, and that, for 
recalcitrant seeds such as those of avocados1995, moisture is the most critical factor that determines 
seeds' viability and longevity because they are sensitive to desic cation . Costa Rica adds that its wet 
climate prevents the desiccation of avocado seeds, which, furthermore, are less likely to be affected 
by fluctuations in humidity prior to germination.1996 
7.1093.   The Panel  observes that Reports ARP -002-2017 and ARP -006-2016 ref er to Holdridge 
(1982 )1997, CONSULSANTOS (2010 )1998 and Garbanzo Solís (2011 )1999 when discussing Costa  Rica's 
favourable conditions for spontaneous germination.  
7.1094.   Reports ARP -002-2017 and ARP -006-2016 cite Garbanzo Solís (2011) to describe the 
climatic requiremen ts for avocado cultivation, highlighting that avocados can be grown at elevations 
from sea level up to 2,500 masl ; that temperature and rainfall are the two most critical factors for 
crop development ; that, with regard to the temperature, the cultivars used behave differently 
depending on their genetics, which allows them to adapt to most of the national territory ; and that 
1,200  mm of rainfall annually, distributed evenly throughout the year, are sufficient to meet its 
water needs.2000 
7.1095.   Garbanzo Solís (2011 ) states that a number of high -altitude varieties such as Ettinger and 
Puebla belong to the Mexican race, that the varieties of the Guatemalan race are adapted to 
high- and mid -elevation areas (Hass, Fujikawa, and Pinkerton), that a number of lo w-altitude 
varieties (Catalina) belong to the West Indian race, and that identifying the race allows for it to be 
known at which elevation the selected variety may be planted .2001 Garbanzo Solís (2011) indicates 
that, when grown for commercial purposes, the Hass variety prefers elevations of 1,200 masl to 
1,800 masl, but that these may vary depending on the prevailing microclimate ; that there are 
difficulties associated with producing this variety at elevations below 1,100 masl ; and that there are 
areas in th e country at elevations of up to 2,500 masl, which, owing to their favourable climatic 
conditions, are suitable for growing and producing Hass avocados . According to Garbanzo Solís 
(2011), the ideal amount of rainfall for Hass avocado cultivation is not mo re than 1,500  mm, 
distributed evenly throughout the year, although this may vary depending on the area.2002 
7.1096.   The Panel notes that Reports ARP -002-2017 and ARP -006-2016 indicate that avocados may 
be grown from sea level and that 1,200 mm of rainfall annually, distributed evenly throughout the 
year, are sufficient, which does not correspond exactly with what is described in Garbanzo  Solís 
(2011) . In addition, Garbanzo Solís (2011) presents specific information on the edaphoclimatic 
requirements for Hass avocados  in particular rather than for avocados in general, as 
Reports  ARP-002-2017 and ARP -006-2016 appear to do . Although Garbanzo Solís (2011) states that 
knowing the race indicates at which elevation the selected variety may be planted, the Panel finds 
no supp ort for the assertion that the cultivars used behave differently depending on their genetics, 
which allows avocados to adapt to most of the national territory . Furthermore, this document is a 
manual of good practices relating to the cultivation of the Hass  variety, which, although it mentions 
the above information on the edaphoclimatic requirements for the cultivation of the Hass variety, 
does not refer directly to Costa Rica's edaphoclimatic conditions being optimal for the spontaneous 
germination of avoca do seeds, and Reports ARP -002-2017 and ARP -006-2016 do not explain this 
inference.  
7.1097.   Reports ARP -002-2017 and ARP -006-2016 refer to the classification of climatic zones in 
Holdridge (1987) to describe those zones in Costa Rica . Holdridge (1982 ) is an entire book on the 
 
1994 Costa Rica's first written submission, para. 5.121 (citing Instituto Meteorológico Nacional Gestión de 
Desarrollo, "Regiones y subregiones climáticas de Costa Rica" (Cli matic regions and subregions of Costa Rica), 
(Exhibit CRI -29), p. 17).  
1995 Costa Rica's first written submission, para. 5.121 (citing Ellis (1991), (Exhibit MEX -35), p. 1119).  
1996 Costa Rica's first written submission, para. 5.121 (citing Chin  et al. (1989), (Exhibit MEX -130), 
pp. 18-19). 
1997 Holdridge (1982), (Exhibit CRI -122). 
1998 CONSULSANTOS (2010), (Exhibit MEX -119). 
1999 Garbanzo Solís (2011), (Exhibit MEX -125). 
2000 ARP-002-2017, (Exhibit MEX -84), p. 4 (citing Garbanzo Solís (2011), (Exhibit MEX -125)); 
ARP-006-2016, (Exhibit MEX -85), p. 4 (citing Garbanzo Solís (2011), (Exhibit MEX -125)). 
2001 Garbanzo Solís (2011), (Exhibit MEX -125), pp. 19 -20. 
2002 Garbanzo Solís (2011), (Exhibit MEX -125), p. 23.  WT/DS524/R  
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  classification of life zones in general .2003 Reports ARP -002-2017 and ARP -006-2016 mention that, 
according to Holdridge's (1987) classification of climatic zones, the main life zones in Costa  Rica are 
tropical moist forest, tropical  dry forest, tropical wet forest, premontane moist forest, and 
premontane wet forest .2004 However, the reports do not contain specific evidence on the 
edaphoclimatic conditions in the various regions of Costa Rica.  
7.1098.   It appears that Reports ARP -002-2017 and AR P-006-2016 seek to substantiate through 
Garbanzo Solís (2011) and Holdridge (1987) that Costa Rica's climatic conditions are optimal for the 
germination of avocado seeds, from which it can be inferred that spontaneous germination does 
occur in the country . However, in this Panel's view, the description of the edaphoclimatic 
requirements for avocados, on the basis of the requirements for Hass avocados indicated by 
Garbanzo Solís (2011), and the classification of climatic zones in Costa Rica, allegedly based on 
Holdridge's (1987) classification of life zones, without support from additional, more specific 
information on the edaphoclimatic conditions necessary for the germination of the seeds and from 
greater details on Costa Rica's regions, does not constitute  sufficient evidence of the spontaneous 
germination of avocado seeds throughout Costa Rica's territory.  
7.1099.   CONSULSANTOS (2010 ) states that the climate in the Los Santos zone is characterized by 
well-defined rainy (seven months, from May to November) and dry ( December to April) seasons, 
which is conducive to coffee flowering, and that the average rainfall is 2,400  mm per year, with an 
average temperature of 19°C.2005 
7.1100.   CONSULSANTOS (2010) also indicates that it is well known that the majority of soils in the 
Los Sa ntos subregion are highly acidic, and that there is a need to supplement th e absorption of 
nutrients from the soil via foliar application to the zone's crops . CONSULSANTOS (2010) adds that, 
in the case of avocados, which are a demanding species in terms of  the nutrients required for them 
to grow and develop successfully, attention should be paid to directing producers towards making 
greater efforts in determining nutrient availability .2006 With regard to the environmental factors, 
CONSULSANTOS (2010) conclude s that wind, excessive rainfall, cloud cover and high temperatures 
appear to have an adverse effect on avocado cultivation, but that the type of soil and the gradient 
were not identified as very negative factors ; and that, among the environmental problems faced by 
the various communities, the most frequently mentioned were excessive rainfall, the presence of 
rubbish, climate change, strong winds, deforestation, soil erosion, overuse of agrochemicals, and 
water and soil pollution.2007 
7.1101.   Other than  the foregoing explanations of the edaphoclimatic conditions in the Los  Santos 
zone in Costa Rica and of how the climate there is conducive to coffee flowering, the Panel finds no 
references in CONSULSANTOS (2010) that document the existence of climatic conditions that a re 
optimal for the spontaneous germination of avocado seeds, or any other explanations relating to 
this germination . The Panel finds nothing in CONSULSANTOS (2010) that supports the assertion 
that, in the cantons of León Cortés, Tarrazú and Dota, the avoca do seeds of fruits that fall on the 
ground are left to germinate in the field by themselves .2008 Moreover, there is nothing in 
CONSULSANTOS (2010) that supports the assertion in Reports ARP -002-2017 and ARP -006-2016 
that the seeds germinate without human assistance when they fall naturally or are discarded in 
gardens, the countryside and fields where avocado is cultivated.2009 
7.1102.   Therefore, in the view of this Panel, there is insufficient scientific evidence in 
Reports  ARP-002-2017 and ARP -006-2016 on the  occurrence of spontaneous germination, and there 
are no estimates, even in qualitative terms, of the scale on which this spontaneous germination 
occurs  in Costa Rica . This prevented the risk analyst from conducting either a qualitative or 
 
2003 Holdridge (1982), (Exhibit CRI -122). 
2004 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing Holdridge (1982), (Exhibit CRI -122)); ARP -006-2016, 
(Exhibit  MEX-85), p. 7 (citing Holdridge (1982), (Exhibit CRI -122)). Reports ARP -002-2017 and ARP -006-2016 
refer to Hold ridge (1987), but the corresponding exhibit, provided by Costa Rica, is dated 1982.  
2005 CONSULSANTOS (2010), (Exhibit MEX -119), p. 15.  
2006 CONSULSANTOS (2010), (Exhibit MEX -119), p. 28.  
2007 CONSULSANTOS (2010), (Exhibit MEX -119), pp. 31, 34 and 60.  
2008 ARP-002-2017, (Exhibit MEX -84), pp. 5 -6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 6 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
2009 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). WT/DS524/R  
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  quantitative ass essment of the probability of entry, establishment or spread of ASBVd in Costa  Rica 
that would give due consideration to spontaneous germination.  
7.4.5.3.3.10   Documents cited in support of the statements on spontaneous germination 
that are not included in Reports ARP -002-2017 and ARP -006-2016  
7.1103.   Throughout the proceedings, Costa Rica has submitted exhibits that post -date 
Reports  ARP-002-2017 and ARP -006-2016, or that predate these reports but were not included 
therein . Through these exhibits, Costa Rica claims to substanti ate the occurrence of spontaneous 
germination of avocado seeds and the suitability of its climatic conditions for this spontaneous 
germination.  
7.1104.   Mexico  submits that, while Costa Rica provided statements and evidence prepared after 
the risk assessment, which  refer to isolated cases in which trees have germinated from pits discarded 
as waste in natural areas or on farms, or as a result of the consumption of food near farms, 
backyards, etc., these situations are within the realm of possibility but are not proba ble, and it is 
impossible to confirm their veracity.2010 
7.1105.   Costa Rica contends that it conducted its risk assessment on the basis of the available 
scientific evidence relating to ASBVd, and found that scientific evidence exists to show that 
Costa  Rica's climat ic conditions are suitable for the natural germination of an avocado seed .2011 
Costa Rica states that the edaphoclimatic requirements for Hass avocados are an elevation of 
1,000 -2,000 masl, a temperature of 16 -18°C, and rainfall of 1200  mm per year2012, and th at, as 
reflected in the CONSULSANTOS study (2010), the elevation of the Los Santos zone 
is 1,200 -1,900  masl, the average annual temperature is 19°C, and the average rainfall is 2,400  mm 
per year.2013 
7.1106.   Costa Rica adds that its risk assessment found that, in addition to tropical dry forest, the 
main life zones in the country are tropical and premontane moist and wet forests2014, and that, for 
recalcitrant seeds such as those of avocados2015, moisture is the most critical factor that determines 
seeds' viability and  longevity because they are sensitive to desiccation . Costa Rica submits that its 
wet climate prevents the desiccation of avocado seeds, which, furthermore, are less likely to be 
affected by fluctuations in humidity prior to germination.2016 
7.1107.   Costa Rica asser ts that the waste disposal sites in the country are often places where waste 
is disposed of without undergoing industrial treatment2017 and that if waste matter is discarded on 
wasteland and the necessary conditions of humidity and temperature exist, the see d can certainly 
germinate spontaneously .2018 Costa Rica adds that the same is true for gardens and backyards on 
 
2010 Mexico's second written submission, para. 138 (citing OR -HN-049-2019 (2019), (Exhibit CRI -69); 
OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); OR-CS-0003-2019 (2019), (Exhibit CRI -71); 
and URCOR -CO-154/2019 (2019), (Exhibit CRI -73)). 
2011 Costa Rica's first written submission, paras.  5.121 and 5.152; second written submission, para.  3.55 
(citing Galindo Tovar et al. (2008), (Exhibit MEX -22); CONSULSANTOS (2010), (Exhibit MEX -119), p. 15; and 
"Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58)). 
2012 Costa Rica's first written submission, para. 5.121 (citing Los Santos Zone (2007), (Exhibit MEX -97), 
p. 8). 
2013 Costa Rica's first written submission, para. 5.121 (citing CONSULSANTOS (2010),  
(Exhibit MEX -119), p. 15). 
2014 Costa Rica's first written submissio n, para. 5.121 (citing Climatic regions and subregions of 
Costa  Rica, (Exhibit CRI -29), p. 17).  
2015 Costa Rica's first written submission, para. 5.121 (citing Ellis (1991), (Exhibit MEX -35), p. 1119).  
2016 Costa Rica's first written submission, para. 5.121 (cit ing Chin et al. (1989), (Exhibit MEX -130), 
pp. 18-19). 
2017 Costa Rica's response to Panel question No. 20, para. 3 (citing Ministerio de Salud de Costa Rica, 
Política Nacional para la Gestión Integral de Residuos 2010 -2021, 1.ª ed (2011) (Ministry of Health of Costa 
Rica, Waste Management (2011)), (Exhibit CRI -28), p. 16); second written submission, para. 3.38 (citing 
Ministry of Health of Costa Rica, Waste Management (2011), (Exhibit CRI -28), p. 16); specific comments on 
the experts' responses to Panel quest ions Nos. 10 and 11 for the experts (citing Ministry of Health of Costa 
Rica, Waste Management (2011), (Exhibit CRI -28), p. 16).  
2018 Costa Rica's response to Panel question No. 20, para. 3 (citing OR -HN-049-2019 (2019), 
(Exhibit  CRI-69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019), 
(Exhibit  CRI-71)); second written submission, para. 3.38 (citing OR -HN-049-2019 (2019), (Exhibit CRI -69); 
OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019), (Exhibit CRI -71)); specific WT/DS524/R  
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  farms, where it is customary for organic waste to be discarded in a particular place with the intention 
of producing homemade compost2019, and that it is very common indeed in the country for some 
avocado trees to grow by themselves, without the producers having planted them in a planned 
way.2020 
7.1108.   The Panel  notes that, in previous statements, Costa Rica cites certain exhibits to support 
the assertio ns regarding spontaneous germination that were not included in Reports  ARP-002-2017 
and ARP -006-2016.  
7.1109.   Specifically, Costa Rica cites : the report Cultural practices in sowing and managing avocado 
seeds in Costa Rica  (2019) ; Exhibits CRI -69 to CRI -73 contain ing reports from the various regions 
of Costa Rica ; the document "Ministry of Health of Costa Rica, Waste Management (2011)" ; the 
"Criollo Avocado" project ; Galindo Tovar et al. (2008) ; "Agronomists rescue the best varieties of 
criollo avocado" ; Climatic regions and subregions in Costa Rica ; Ellis (1991) ; and Chin  et al. (1989) . 
The Panel will analyse these documents below.  
7.1110.   The report Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019 ) 
of 10 October  2019, described in secti on 7.4.5.3.3.5 above, indicates that it is very common for 
some avocado trees to grow by themselves, without the producers having planted them in a planned 
way. Those interviewed comment that this is what nature intended and it happens : there will always 
be a squirrel that eats from a tree and then leaves the seed somewhere and, depending on where 
on the farm the trees sprout, they are removed, transplanted or left to grow .2021 The report also 
indicates that some producers said that the trees were already the re when they bought the farms 
since some of the trees are 80 years old, and that others said that the trees grew by themselves, 
which means that animals moved the seeds before discarding them, the seeds then found a suitable 
place to grow, or that an avoca do fell from a tree in a neighbour's backyard and the seed 
germinated.2022 
7.1111.   The report states that, during a brief group interview with members of the National Avocado 
Commission, it was mentioned that there were avocado trees on land that is not used for agr icultural 
production, including a large Hass avocado tree that grew by itself, and that there is a risk that a 
Hass tree will sprout spontaneously . The report also states that another individual told the story of 
a Hass tree next to a low wall where the mu nicipality's workers would always sit to eat lunch . There 
used to be another tree there, and at midday the workers always stopped and sat down for lunch in 
the shade, taking out the food they had brought . The individual believed that one of the workers 
may have left behind the seed of the avocado that he was eating because the Hass tree started to 
grow there.2023 
7.1112.   The report concludes that it is common to find avocado trees in gardens, backyards, public 
parks, and communal areas, in both rural and urban areas and in avocado -producing and 
non-producing areas, and that, in some cases, these trees were planted intentionally and in other 
cases it is unknown how they ended up in their location . The report adds that the climatic and soil 
characteristics of the nation al territory probably facilitate the spontaneous germination of seeds that 
 
comments on the experts' responses to Panel questions Nos. 10 and 11 for the experts (citing  
OR-HN-049-2019 (2019), (Exhibit CRI -69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and  
OR-CS-0003-2019 (2019), (Exhibit  CRI-71)). 
2019 Costa Rica's response to Panel question No. 20, para. 4 (citing OR -PC-034-2019 (2019), 
(Exhibit  CRI-72); URCOR -CO-154/2019 (2019), (Exhibit CRI -73); and Universidad de Costa Rica (UCR), 
Ministerio de Agricultura y Ganadería (MAG), Comisión Asesora sobre  Degradación de Tierras (CADETI), 
Ministerio de Ambiente y Energía (MINAE), "El Aguacate Criollo" (UCR, "The Criollo Avocado"),  
(Exhibit CRI -74)); second written submission, para. 3.38 (citing OR -PC-034-2019 (2019), (Exhibit CRI -72); 
URCOR -CO-154/2019 (20 19), (Exhibit  CRI-73); and UCR, "The Criollo Avocado", (Exhibit CRI -74)). 
2020 Costa Rica's second written submission, para. 3.38 (citing Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), (Exhibit CRI -44), p. 14).  
2021 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 14. 
2022 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
pp. 15-16. 
2023 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 16. WT/DS524/R  
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  were discarded after the fruit was consumed ; and that, under very rudimentary conditions of 
humidity and temperature, these seeds reproduce without human intervention.2024 
7.1113.   The Panel o bserves that, through the report Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), Costa Rica seeks to substantiate the existence of spontaneous 
germination as this report contains statements regarding trees that grew by themselves because 
animals carried the seeds or grew from the waste of avocado fruit for consumption . Although this 
report points out that it is very common for some avocado trees to grow by themselves, without the 
producers having planted them in a planne d way, it does not substantiate this assertion with 
sufficiently reliable evidence.  
7.1114.   In addition, the report was prepared in 2019 mainly on the basis of the testimonies of 
21 people, whose representativeness in relation to the area of the PRA is not suffici ently explained . 
The report includes accounts indicating that it is not known how avocado trees grew, and was not 
considered when preparing Reports ARP -002-2017 and ARP -006-2016 because it post -dates them . 
As a result, this information does not form part o f the scientific basis used for the risk analyst's 
assessment and reasoning.  
7.1115.   Costa Rica asserts that the waste disposal sites in the country are often places where waste 
is disposed of without undergoing industrial treatment2025, and that if the waste matter  is discarded 
on wasteland and the necessary conditions of humidity and temperature exist, the seed can certainly 
germinate spontaneously .2026 Costa Rica adds that the same is true for gardens and backyards on 
farms, where it is customary for organic waste t o be discarded in a particular place with the intention 
of producing homemade compost .2027 To support these assertions, Costa Rica refers to 
Exhibits  CRI-69 to CRI -73 containing reports from the various regions of Costa Rica, to the document 
"Ministry of Hea lth of Costa Rica, Waste Management" (2011) and to the "Criollo Avocado" project.  
7.1116.   Document OR-HN-049-2019 (2019)  is a report dated 2 0 November  2019, prepared by the 
Northern Huetar Regional Operational Unit at the request of the head of the SFE's Departmen t of 
Regional Operations, which indicates that the authors carried out visits and interviews as requested 
in this region . The document contains information on a sanitary landfill site, and photos that are said 
to relate to the spontaneous germination of di scarded avocado seeds alongside roads and to waste 
used as compost in the Northern Huetar region.2028 
7.1117.   With regard to the photographs of an avocado tree, under which there are captions 
indicating that it is an avocado tree by the side of a road , the document states that a housewife 
mentioned that the seed was discarded after the fruit's flesh had been eaten, which led to its 
germination and development .2029 The document also states that a farmer commented that he uses 
fruit and vegetable waste supplied to him by  a fruit and vegetable seller as compost for his crops, 
and refers to a number of photographs allegedly showing avocado trees amid fruit and vegetable 
waste used as compost for crops.2030 
 
2024 Cultural practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44), 
p. 18. 
2025 Costa Rica's response to Panel question No. 20, para. 3 (citing Ministry of Health of Co sta Rica, 
Waste Management (2011), (Exhibit CRI -28), p. 16); second written submission, para. 3.38 (citing Ministry of 
Health of Costa Rica, Waste Management (2011), (Exhibit CRI -28), p. 16); specific comments on the experts' 
responses to Panel questions Nos. 10 and 11 for the experts (citing Ministry of Health of Costa Rica, Waste 
Management (2011), (Exhibit CRI -28), p. 16).  
2026 Costa Rica's response to Panel question No. 20, para. 3 (citing OR -HN-049-2019 (2019), 
(Exhibit  CRI-69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019),  
(Exhibit CRI -71)); second written submission, para. 3.38 (citing OR -HN-049-2019 (2019), (Exhibit CRI -69); 
OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019), (Exhibit CRI -71)); specific 
comments on the experts' responses to Panel questions Nos. 10 and 11 for the experts (citing  
OR-HN-049-2019 (2019), (Exhibi t CRI-69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and  
OR-CS-0003-2019 (2019), (Exhibit  CRI-71)). 
2027 Costa Rica's response to Panel question No. 20, para. 4 (citing OR -PC-034-2019 (2019), 
(Exhibit  CRI-72); URCOR -CO-154/2019 (2019), (Exhibit CRI -73); and UCR, "The Criollo Avocado", 
(Exhibit  CRI-74)); second written submission, para. 3.38 (citing OR -PC-034-2019 (2019), (Exhibit CRI -72); 
URCOR -CO-154/2019 (2019), (Exhibit CRI -73); and UCR, "The Criollo Avocado", (Exhibit CRI -74)). 
2028 OR-HN-049-2019 (2019), (Exhibit CRI -69), p. 3.  
2029 OR-HN-049-2019 (2019), (Exhibit CRI -69), p. 4.  
2030 OR-HN-049-2019 (2019), (Exhibit CRI -69), p. 5.  WT/DS524/R  
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  7.1118.   Document OR-BR-FUN-0014-2019 (2019 ) is a report dated 2 0 November  2019, prepared 
by the Brunca Regional Unit and addressed to the head of the SFE's Department of 
Regional  Operations . The document contains information on waste disposal sites and photographs 
that are said to relate to the spo ntaneous germination of avocado seeds alongside roads and in 
backyards in the Brunca region.2031 
7.1119.   The report discusses the consumption of food on farms2032, but does not mention the 
spontaneous germination of avocado seeds as a result of food being discarded.  
7.1120.   As regards what is referred to as the presence of volunteer avocado trees, the report 
indicates that, in the region, it is common to find avocado trees in various areas of the cantons, be 
they backyards, farms, or roadsides, inter alia . As evidence of this,  the report adds that various 
avocado trees were successfully located in the aforementioned areas, which it is claimed can be seen 
in four pictures included in the report.2033 
7.1121.   Document OR-CS-0003-2019 (2019 ) is a report dated 2 1 November  2019, prepared by the 
Southern Central Unit, which contains information on rubbish dumps and photographs that are said 
to relate to the spontaneous germination of avocado seeds alongside roads and in backyards in the 
Southern Central region.2034 
7.1122.   The report discuss es how farmers typically have lunch and/or breakfast on the farms, and 
mentions that they leave the organic waste to decompose on the farm .2035 The report does not 
mention the spontaneous germination of avocado seeds as a result of food being discarded.  
7.1123.   The document indicates that it contains evidence of avocado trees sprouting alongside 
roads and in backyards, and presents a series of photographs that are said to be of avocado trees 
in both of these locations.2036 
7.1124.   Document OR-PC-034-2019 (2019 ) is a report dat ed 20 November  2019, prepared by the 
Department of Regional Operations of the Central Pacific region and addressed to the head of the 
SFE's Department of Regional Operations . The document contains information on a waste disposal 
site and photographs that a re said to relate to the spontaneous germination of avocado seeds 
alongside roads and in backyards in the Central Pacific region.2037 
7.1125.   The report indicates that there is only one waste disposal site in the area of influence and 
that it has been modernized . The manager of the site stated  that the waste treatment system means 
that no germinative plant material is produced.2038 
7.1126.   With regard to the presence of avocado trees alongside roads or in backyards, the report 
states that a journey was undertaken along two nat ional highways in two cantons in which avocado 
crops are planted ; that no avocado trees were observed alongside the road ; and that, on one of the 
highways, two trees were seen in backyards, which it is claimed can be seen in the pictures 
reproduced in the document together with their coordinates.2039 
7.1127.   Document URCOR -CO-154/2019 (2019 ) is a report dated 2 0 November  2019, prepared by 
the Eastern Central Operational Unit and addressed to the head of the SFE's Department of Regional 
Operations . The document contains information on waste disposal sites and photographs that are 
said to relate to the spontaneous germination of avocado seeds in backyards in the Eastern Central 
region.2040 
 
2031 OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70). 
2032 OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70), pp. 10 -12. 
2033 OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70), p. 12.  
2034 OR-CS-0003-2019 (2019), (Exhibit CRI -71). 
2035 OR-CS-0003-2019 (2019), (Exhibit CRI -71), pp. 7 -8. 
2036 OR-CS-0003-2019 (2019), (Exhibit CRI -71), pp. 9 -11. 
2037 OR-PC-034-2019 (2019), (Exhibit CRI -72). 
2038 OR-PC-034-2019 (2019), (Exhibit CRI -72), p. 3.  
2039 OR-PC-034-2019 (2019), (Exhibit CRI -72), p. 4.  
2040 URCOR -CO-154/2019 (2019), (Exhibit CRI -73). WT/DS524/R  
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  7.1128.   The report states that farm workers eat and may discard any food was te anywhere on the 
property ; and that the Tarrazú Cantonal Agricultural Centre saw a case of an avocado tree, 
approximately 10 years old, that had sprouted from a seed that had been discarded on a coffee 
plantation . Photographs claiming to show this tree a re included.2041 
7.1129.   With respect to the evidence of trees that have sprouted spontaneously both alongside 
roads and in backyards, the report also states that it was only possible to establish from one 
individual's statement that a tree had sprouted spontaneousl y on the coffee plantation at the Tarrazú 
Cantonal Agricultural Centre, but that this tree was not of the Hass variety . Those people consulted 
in relation to backyards reported that the trees had been planted . The report presents five 
photographs identifie d as photographs of avocado trees in backyards .2042 The document includes a 
photograph of a backyard in which there appears to be an avocado tree.2043 
7.1130.   The Panel notes that the five aforementioned reports contain information on the treatment 
of waste and presen t photographs that purport to substantiate the existence of avocado trees that 
germinated spontaneously in places where fruit and vegetable waste was used as compost for crops, 
as well as alongside roads, on farms and in backyards . However, they are photog raphs for which 
either no explanations are given, or for which the explanations are insufficient, regarding the 
spontaneous germination of the photographed trees, and that lack the systematic  nature needed to 
support a conclusion concerning the spontaneous  germination of avocado seeds at waste disposal 
sites, in backyards, on farms, and alongside roads . There is also no explanation of the 
representativeness of the photographs in relation to each region . Moreover, the reports constitute 
evidence that post -dates the preparation of Reports ARP -002-2017 and ARP -006-2016, therefore 
they do not form part of the scientific basis used for the risk analyst's assessment and reasoning.  
7.1131.   The document Ministry of Health of Costa Rica, Waste Management (2011 ) contains the 
National Policy for the Integrated Management of Waste 2010 -21, including the strategies for waste 
management in Costa Rica .2044 The document indicates that, outside of the Greater Metropolitan 
Area, a high percentage of waste is disposed of in rubbish dumps , which are nothing more than 
places where waste is discarded without any means to mitigate the damage that its decomposition 
causes to the environment or health .2045 This confirms Costa Rica's assertion that the waste disposal 
sites in the country are often  places where waste is disposed of without undergoing industrial 
treatment.2046 
7.1132.   Costa Rica refers to the UCR's document "The Criollo Avocado " to substantiate the 
germination of avocado seeds in gardens and backyards on farms, where it is customary for organi c 
waste to be discarded in a particular place with the intention of producing homemade compost .2047 
It also does so to indicate that the vast majority of those interviewed in the study state that their 
criollo avocado trees "sprouted by themselves on the farms"2048, and that it has been found that 
seeds can germinate without human assistance (as, by nature, they are meant to do).2049 
7.1133.   The document "The Criollo Avocado" is a project that makes an inventory and details the 
characteristics, propagation and conservation of criollo avocado trees, undertaken by the UCR in 
collaboration with the agricultural extension agencies of the Ministry of Agriculture and Livestock in 
San Mateo, Orotina and Esparza ; the Advisory Commission on Land Degradation (CADETI) ; the 
Ministry of the Environment and Energy (MINAE) ; members of the Association of Avocado Producers 
 
2041 URCOR -CO-154/2019 (2019), (Exhibit CRI -73), p. 6.  
2042 URCOR -CO-154/2019 (2019), (Exhibit CRI -73), pp. 6 -10. 
2043 URCO R-CO-154/2019 (2019), (Exhibit CRI -73), p. 5.  
2044 Ministry of Health of Costa Rica, Waste Management (2011), (Exhibit CRI -28). 
2045 Ministry of Health of Costa Rica, Waste Management (2011), (Exhibit CRI -28), p. 16.  
2046 Costa Rica's response to Panel question No.  20, para. 3 (citing Ministry of Health of Costa Rica, 
Waste Management (2011), (Exhibit CRI -28), p. 16); second written submission, para. 3.38 (citing Ministry of 
Health of Costa Rica, Waste Management (2011), (Exhibit CRI -28), p. 16); specific comments o n the experts' 
responses to Panel questions Nos. 10 and 11 for the experts (citing Ministry of Health of Costa Rica, Waste 
Management (2011), (Exhibit CRI -28), p. 16).  
2047 Costa Rica's response to Panel question No. 20, para. 4 (citing UCR, "The Criollo Avoc ado", 
(Exhibit  CRI-74)); second written submission, para. 3.38 (citing UCR, "The Criollo Avocado", (Exhibit CRI -74)). 
2048 Costa Rica's response to Panel question No. 94, para. 2 (citing UCR, "The Criollo Avocado", 
(Exhibit  CRI-74)). 
2049 Costa Rica's second written submission, para. 3.70 (citing UCR, "The Criollo Avocado", 
(Exhibit  CRI-74)). WT/DS524/R  
- 290 - 
  of San Jerónimo de Esparza ; and other producers from the Jesús María and Barranca river basins . 
The document states that its main objective is to carry out a s urvey of the local criollo avocado trees, 
and that a total of 36 criollo avocado trees in San Mateo, Orotina and Esparza were assessed.2050 
7.1134.   The document highlights, inter alia , the following general characteristics of the criollo 
avocado trees studied : 60% of the trees are located in household backyards or gardens ; over 50 % 
of the trees were planted from seeds ; and, with respect to the origin of these criollo avocado trees, 
88% of the owners interviewed mentioned that they sprouted on the properties by themse lves or 
they acquired them in the same area.2051 
7.1135.   The Panel notes that, among the characteristics of the criollo avocado trees studied, the 
"Criollo Avocado" report mentions trees in household backyards or gardens, but not that they 
germinated spontaneously o r from discarded organic waste as Costa Rica claims . This report 
confirms that those interviewed mentioned that criollo avocado trees sprouted by themselves on the 
properties, but this evidence relates only to the criollo avocado tree, which is native to C osta Rica. 
Even if this evidence were applicable to other avocado varieties, such as the Hass variety, this report 
was not considered when preparing Reports ARP -007-2017 and ARP -006-2016, therefore it does not 
form part of the scientific basis used for the  risk analyst's assessment and reasoning.  
7.1136.   Costa Rica also cites Galindo Tovar et al. (2008 )2052, "Agronomists rescue the best varieties 
of criollo avocado"2053, Climatic regions and subregions in Costa Rica2054, Ellis (1991 )2055 and Chin 
et al.  (1989 )2056 to substantiate its statements relating to the climatic conditions and the natural 
germination of avocado seeds in Costa Rica.  
7.1137.   Galindo Tovar et al. (2008 ) is an article that contains information on avocado diversity and 
its origins in Mesoamerica, its spr ead and domestication .2057 Agronomists rescue the best varieties 
of criollo avocado  is a news item from the UCR that provides information on the work of 
two researchers to create a bank of criollo avocado germplasm and mentions the presence of trees 
in backy ards, which appears to refer to criollo avocado trees.2058 
7.1138.   The Panel notes that neither of these two items of evidence directly addresses the question 
of whether Costa Rica's climatic conditions are suitable for the natural germination of an avocado 
seed.2059 Likewise, this matter is not addressed in the exhibits on the climatic conditions in Costa  Rica 
(Climatic regions and subregions in Costa Rica) and recalcitrant seeds (Ellis (1991) and Chin et al. 
(1989)), which the Panel will address below.  
7.1139.   Climatic regions and subregions in Costa Rica  describes Costa Rica's climatic conditions, 
establishing seven basic regions : the Northern Pacific, Central Pacific, Southern  Pacific, 
Southern  Mountainous, Central Valley, Northern, and Atlantic regions .2060 The document mentions 
for the various regions and subregions the existence of tropical dry forest, tropical moist forest, 
subtropical moist forest, subtropical wet forest, lower montane moist forest, lower montane wet 
forest, montane wet forest, and lower mon tane rain forest .2061 Costa Rica's description of its 
climatic  zones does not correspond exactly with that in "Climatic regions and subregions in 
Costa  Rica", since it states that, in addition to tropical dry forest, the main life zones are tropical 
and prem ontane moist and wet forests.2062 
 
2050 UCR, "The Criollo Avocado", (Exhibi t CRI-74), p. 4.  
2051 UCR, "The Criollo Avocado", (Exhibit CRI -74), p. 5.  
2052 Galindo Tovar et al. (2008), (Exhibit MEX -22). 
2053 "Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58). 
2054 Climatic regions and subregions of Costa Rica, (Exhibit CRI -29). 
2055 Ellis (1991), (Exhibit MEX -35). 
2056 Chin et al. (1989), (Exhibit MEX -130). 
2057 Galindo Tovar et al. (2008), (Exhibit MEX -22). 
2058 "Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58). 
2059 Costa Rica's first written submission, paras.  5.121 and 5.152; second written submission, para. 3.55 
(citing Galindo Tovar et al. (2008), (Exhibit MEX -22); CONSULSANTOS (2010), (Exhibit MEX -119), p. 15; and 
"Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58)). 
2060 Climatic regions and subregions of Costa Rica, (Exhibit CRI -29), pp. 1 -2. 
2061 Climatic regions and subregions of Costa Rica, (Exhibit CRI -29), pp. 6, 9, 12 -13, 17, 20, 24, 28 -29. 
2062 Costa Rica's first written submission, para. 5.121 (citing Climatic regions and subregions of 
Costa  Rica, (Exhibit CRI -29), p. 17).  WT/DS524/R  
- 291 - 
  7.1140.   The articles by Ellis (1991 ) and Chin et al. (1989 ) address the matter of orthodox and 
recalcitrant seeds .2063 Ellis (1991) states that recalcitrant seeds do not survive desiccation2064, and 
Chin et al. (1991) notes that these s eeds are sensitive to desiccation and chilling injury .2065 Neither 
of the two documents refers to the effect of Costa Rica's wet climate on avocado seeds in the sense 
that it prevents the desiccation of these seeds.  
7.1141.   The Panel also notes that, with the except ion of the article by Galindo Tovar et al. (2008), 
which is cited in Reports ARP -002-2017 and ARP -006-2016 for the assertion that the avocado tree 
is native to Costa Rica2066, these documents are not sources for Reports ARP -002-2017 and 
ARP-006-2016, therefore the information contained therein does not form part of the scientific basis 
used in the risk analyst's assessment and reasoning.  
7.1142.   The Panel considers that Costa Rica has made efforts during the course of these proceedings 
to document the occurren ce of spontaneous germination through the submission of additional 
information . However, this information is neither reflected nor analysed in the risk assessment 
contained in Reports ARP -002-2017 and ARP -006-2016, which form the basis of Costa  Rica's 
phytosanitary requirements.  
7.1143.   Furthermore, while Costa Rica has sought to gather further information on spontaneous 
germination subsequent to  Reports ARP-002-2017 and ARP -006-2016, this Panel is of the view that 
the evidence provided remains insufficient to document spontaneous germination due to the lack of 
a systematic, disciplined and objective investigation and analysis . This does not allow for an 
assessment, whether qualitative or quantitative, to be made of the probability of entry, 
establishment or spread of ASBVd in Costa Rica that properly considers this spontaneous 
germination . In addition, there are still no estimates, either qualitative or quantitative, of the 
magnitude of spontaneous germination.  
7.4.5.3.3.11   Discussion of the occurrence of spo ntaneous germination  
7.1144.   To refute the assertions contained in Reports ARP -002-2017 and ARP -006-2016 on 
spontaneous germination, Mexico  submits that, given the recalcitrant nature of avocado seeds, for 
them to germinate, specific conditions must be met and pro cesses followed during the collection, 
storage and cultivation phases in order to increase or preserve their viability .2067 Mexico states that 
it does not deny that a pit may germinate naturally, but it argues that the recalcitrant nature of a 
seed, particul arly if it is a discarded pit, affects the viability of the embryo due to the conditions to 
which the fruit is exposed from the moment it is cut down until it reaches the final consumer 
(including being transported, displayed for sale, refrigerated).2068 
7.1145.   As part of its arguments on whether the risk assessment is appropriate to the 
circumstances, Mexico also submits that an avocado seed does not germinate in such a spontaneous 
manner because it is a recalcitrant seed .2069 Mexico reiterates that other factors nee d to be 
considered in addition to the climate in order to ensure that an avocado seed germinates . It adds 
that, in a commercial orchard, human intervention is necessarily required for seed pretreatment, so 
that the plant that germinates is the best specime n for obtaining economic benefits.2070 
7.1146.   For Mexico, if Costa Rica had considered the product's specific characteristics, such as the 
recalcitrant nature of the seed, the risk assessment would have been conducted differently and 
would likely have reached a dif ferent conclusion with regard to the probability of entry, establishment 
and spread of ASBVd.2071 
 
2063 Ellis (1991), (Exhibit MEX -35); Chin et al. (1989), (Exhibit MEX -130). 
2064 Ellis (1991), (Exhibit MEX -35), p. 1119.  
2065 Chin et al. (1989), (Exhibit MEX -130), p. 18.  
2066 See, for example, ARP -002-2017, (Exhibit MEX -84), p. 37 (citing Galindo Tovar et al. (2008), 
(Exhibit  MEX-22)); ARP -006-2016, (Exhibit MEX -85), p. 18 (citing Galindo Tovar et al. (2008),  
(Exhibit MEX -22)). 
2067 Mexico's first written submission, para. 28.  
2068 Mexico's first written submission, para. 28; second written submission, para. 72.  
2069 Mexico's first wri tten submission, para. 396.  
2070 Mexico's first written submission, para. 397.  
2071 Mexico's first written submission, para. 398.  WT/DS524/R  
- 292 - 
  7.1147.   Mexico notes that the assertions in Costa Rica's PRA are contradictory since, on the one 
hand, they refer to a seasonal limitation on seed germination, and, on the other hand, state that 
Costa  Rica's climatic circumstances mean that seeds may germinate naturally at any time . Mexico 
adds that, in addition to the climate, factors for germination would include, inter alia , elevation, soil 
quality and characteristics , soil moisture, seed viability, the decomposition process, and seed 
disinfection and sowing methods.2072 
7.1148.   Mexico also argues that, given that the proposed use of the fruits is for consumption, the 
waste will primarily be discarded in household bins and then in waste disposal sites, in most cases 
far from any susceptible hosts .2073 For Mexico, the probability of the discarded avocado seed 
germinating at a waste disposal site is virtually nil .2074 Mexico notes that rubbish dumps or waste 
disposal sites, by the ir very nature, do not offer the conditions required to ensure the germination 
of seeds.2075 
7.1149.   For its part , Costa Rica  submits that the natural tropical conditions of the country mean 
that recalcitrant avocado seeds are able to spontaneously germinate and sur vive2076; and that its 
wet climate prevents the desiccation of avocado seeds.2077 
7.1150.   Costa Rica states that, for most of the year, its climatic conditions are suitable for the 
germination of avocado seeds, and that its risk assessment found that the main life zon es in the 
country are tropical dry forests and tropical and premontane moist and wet forests, and that, for 
recalcitrant seeds such as those of avocados, moisture is the most critical factor that determines 
their longevity and viability . According to Costa  Rica, its wet climate prevents the desiccation of 
avocado seeds .2078 Costa Rica adds that its climatic conditions mean that avocado seeds are 
extremely adaptable, even in low -fertility, weathered and highly acidic soils ; and that its natural 
tropical condit ions make it easy for recalcitrant avocado seeds to spontaneously germinate and 
survive, therefore it is essential to consider these conditions when assessing the risks associated 
with the germination of seeds of Hass avocado imported from countries where ASBVd is 
present.2079, 2080 
7.1151.   Costa Rica notes that the edaphoclimatic requirements for Hass avocados are an elevation 
of 1,000 -2,000 masl, a temperature of 16 -18°C, and rainfall of 1,200  mm per year .2081 Costa Rica 
asserts that it is an empirical fact that the cl imatic conditions necessary for avocado growing are 
found in much of its territory .2082 According to Costa Rica, the country's warm and wet climate is 
particularly good for avocados, with the Los Santos zone and the low -lying "Bajura" area being 
particularly  suitable for their cultivation, and where the majority of Costa  Rican avocado production 
takes place.2083 
 
2072 Mexico's first written submission, paras.  392-394. 
2073 Mexico's opening statement at the first meeting of the Panel, para. 45.  
2074 Mexico's response to Panel question No. 20, para. 44.  
2075 Mexico's second written submission, para. 62.  
2076 See, for example, Costa Rica's opening statement at the first meeting of the Panel, para. 9; 
response to Panel question No. 7, para. 4; response to Panel q uestion No. 8, para. 3.  
2077 Costa Rica's response to Panel question No. 6, para. 4; second written submission, para. 5.121.  
2078 Costa Rica's first written submission, para. 5.121 (citing Los Santos Zone (2007), (Exhibit  MEX-97), 
p. 8; CONSULSANTOS (2010), (Exhibit MEX -119), p. 15; Climatic regions and subregions of Costa Rica, 
(Exhibit  CRI-29), p. 17; Ellis (1991), (Exhibit MEX -35), p. 1119; and Chin et al. (1989), (Exhibit MEX -130), 
pp. 18-19); response to Panel question No. 6, para. 4; response to Panel qu estion No. 7.  
2079 Costa Rica adds that the avocado varieties adapt very well to elevations between 0 masl and 
2,500  masl, with temperatures between 5°C and 28°C, requiring average rainfall of 660  mm to 1,500  mm 
per year and relative humidity of around 80 %, and that this is precisely the description of the climate in the 
avocado -producing areas in Costa Rica and in a large part of the country's territory. (Costa  Rica's opening 
statement at the first meeting of the Panel, para. 9).  
2080 Costa Rica's opening statem ent at the first meeting of the Panel, para. 9.  
2081 Costa Rica's response to Panel question No. 6, para. 1 (citing Los Santos Zone (2007), 
(Exhibit  MEX-97), p. 8).  
2082 Costa Rica's response to Panel question No. 6, para. 1 (citing "Agronomists rescue the best varieties 
of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58)). See also Costa Rica's  response to Panel question No. 7, 
para. 4.  
2083 Costa Rica's response to Panel question No. 6, para. 3 (citing Los Santos Zone (2007), 
(Exhibit  MEX-97); Climatic regions and subregions of Costa Rica, (Exhibit CRI -29); and Beatriz García, "El 
aguacate español, el único reducto en Europa del 'oro verde'",  Libertad Digital  (7 de Mayo 2017), 
(Exhibit  CRI-59)). WT/DS524/R  
- 293 - 
  7.1152.   Costa  Rica also contends that an untreated seed does not lose viability immediately after 
its extraction from the fruit .2084 In Costa  Rica's view, avocado seeds do not require any type of 
scarification treatment, treatment with chemical products such as growth promoters, or controlled 
conditions in order to germinate, and especially not in the places from which avocado trees originate 
and where they propagated naturally for centuries.2085 
7.1153.   Costa  Rica adds that waste disposal sites are often places where waste is di sposed of 
without undergoing industrial treatment and that, in these cases, if the waste matter is discarded 
on wasteland and the necessary humidity and temperature conditions exist, the seed can certainly 
germinate.2086 
7.1154.   The Panel  notes that this matter has been discussed extensively with the experts, and 
particularly with Fernando Pliego Alfaro, who is an expert on avocado cultivation.  
7.1155.   The expert Fernando Pliego Alfaro considers Costa  Rica's assertions that its climatic 
conditions are optimal for the germina tion of avocado seeds to be correct . Mr Pliego Alfaro adds that 
while the climatic conditions across most of Costa  Rica are suitable for germination, the seeds would 
not germinate in areas with a very marked dry season or probably only those that fall at t he end of 
the dry season would do so .2087 According to the expert  Ricardo Flores Pedauyé, these assertions 
seemed overly optimistic . He states  that, while Costa  Rica's conditions may be conducive to 
spontaneous germination, they are not the ideal conditions that prevail in controlled environments, 
in which all avocado seeds still do not germinate . For Mr Flores Pedauyé, these conditions may be 
better than in other environments, but they are not optimal .2088 The expert Pablo Cortese, for his 
part, considers that , while it is unlikely that a seed from the fruit of a commercially cultivated plant 
will germinate spontaneously when it is discarded in a field or in household compost, it could 
happen.2089 
7.1156.   Fernando Pliego Alfaro, Ricardo Flores Pedauyé and Pablo Cortese a ll agree that avocado 
seeds are recalcitrant2090 and that this recalcitrant nature affects the viability of avocado seeds . 
Mr Pliego Alfaro notes that the recalcitrant nature of the seed means that its life is relatively short 
and it maintains its capacity t o germinate for only a few months .2091 Mr Flores Pedauyé point s out 
that this recalcitrant nature makes germination difficult, and that a fraction of the seeds fail to 
thrive .2092 Mr Cortese, for his part, considers that this recalcitrant nature affects viabil ity, which 
declines sharply if the seed is not stored under the right conditions, and that the seed is affected by 
desiccation, high humidity and the cold, which makes it susceptible to losing viability and 
decomposing.2093 
7.1157.   With regard to the specific impact  of the recalcitrant nature of avocado seeds in Costa  Rica, 
Mr Pliego Alfaro contends that discarded avocado seeds may germinate naturally in Costa  Rica's 
climate and soil conditions .2094 Mr Flores Pedauyé, on the other hand, explain s that while Costa  Rica's 
wet climate is favourable, excessive humidity is not.2095 
 
2084 Costa Rica's specific comments on Panel question No. 23 for the experts.  
2085 Costa Rica's response to Panel question No. 15, para. 3.  
2086 Costa Rica's response to Panel question No. 20, para. 3 (citing OR -HN-049-2019 (2019), 
(Exhibit  CRI-69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019), 
(Exhibit  CRI-71)); second written submission, para. 3.38 (citing OR -HN-049-2019 (2019), (Exhibit CRI -69); 
OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and OR -CS-0003-2019 (2019), (Exhibit CRI -71)); specific 
comments on the experts' responses to Panel questions Nos. 10 and 11 for the experts (citing  
OR-HN-049-2019 (2019), (Exhibit CRI -69); OR-BR-FUN-0014-2019 (2019), (Exhibit CRI -70); and  
OR-CS-0003-2019 (2019), (Exhibit  CRI-71)). 
2087 Fernando Plie go Alfaro's response s to Panel questions Nos. 8, 9, 10, 14, 19 and 24 for the experts.  
2088 Ricardo Flores Pedauyé's response s to Panel questions Nos. 8, 9, 10, 14, 19 and 24 for the experts.  
2089 Pablo Cortese's response to Panel question No. 24 for the experts . 
2090 Responses  of Fernando Pliego Alfaro, Ricardo Flores Pedauyé and Pablo Cortese to Panel 
questions  Nos. 2 and 3 for the experts.  
2091 Fernando Pliego Alfaro's response s to Panel questions Nos. 4 and 34(d) for the experts.  
2092 Ricardo Flores Pedauyé's response s to Panel questions Nos. 4 and 34(d) for the experts.  
2093 Pablo Cortese's response s to Panel questions Nos. 4 and 34(d) for the experts.  
2094 Fernando Pliego Alfaro's response to Panel question No. 5 for the experts.  
2095 Ricardo Flores Pedauyé's response to Pane l question No. 5 for the experts.  WT/DS524/R  
- 294 - 
  7.1158.   Mr Pliego Alfaro notes that seeds may certainly germinate if the soil moisture level and 
ambient temperature are right .2096 He clarifies that this statement is based on observat ions in 
avocado farms (orchards), where it is not uncommon to find seedlings from seeds that have 
germinated from ripe fruit that has been blown down by the wind or caused to fall by some other 
factor and ended up partly buried under vegetation cover ; and that some, but not all, seeds may 
germinate . Mr Pliego Alfaro is of the view that, if seeds are discarded in a garden and end up buried 
in the vegetation cover, as occurs in orchards, these seeds could also germinate, although only a 
small percentage would  do so . For Mr Pliego Alfaro, the situation at waste disposal sites and in 
backyards where homemade compost is produced is very different, since, in these cases, the organic 
waste fermentation processes mean that the temperature and aeration conditions are  not right, and 
it is very difficult for germination to occur .2097 Mr Flores Pedauyé, for his part, indicate s that the 
seeds may germinate, but he does not believe that the majority would.2098 
7.1159.   The Panel observes that Costa  Rica has a range of edaphoclimatic co nditions in the various 
regions of the country, as is reflected in the document "Climatic regions and subregions in 
Costa  Rica".2099 However, in Reports ARP -002-2017 and ARP -006-2016, spontaneous germination 
has been treated as a phenomenon that can occur in  all areas of Costa  Rican territory, throughout 
every season of the year, and in the edaphoclimatic conditions of the whole country, which 
Costa  Rica presents as being optimal . Costa  Rica mentions its different life zones only in the 
introductions to Repor ts ARP -002-2017 and ARP -006-2016, and that the life zones of tropical dry 
forest have a marked dry season, during which the avocado seeds would dry up when they fall to 
the ground and would not germinate.2100 
7.1160.   The Panel finds no explanation in Reports ARP -002-2017 and ARP -006-2016 regarding how 
the various edaphoclimatic conditions (including temperature, elevation, humidity and soils) in the 
different regions of the country would affect the assignment of probabilities to the various factors 
and elements of th e probability of entry, establishment and spread of ASBVd in Costa  Rica. 
7.1161.   With regard to the recalcitrant nature of avocado seeds, the Panel considers that this is one 
of the characteristics that determines the specific edaphoclimatic conditions conducive t o the 
germination of avocado seeds . Therefore, the consideration of this recalcitrant nature forms part of 
the consideration of the edaphoclimatic conditions.  
7.1162.   In addition, among Costa  Rica's premises that Mexico considers to be baseless, Mexico 
mentions th at Costa  Rica considers that all avocado pits will germinate, become established, and 
successfully take root to produce avocado seedlings, which will grow and develop into trees.2101 
7.1163.   Mexico confirms that it is possible for seeds to germinate on rubbish dumps or wasteland, 
but that it is also important for them to become established in the ground otherwise the seed will 
simply begin to germinate but it will fail to take root in the ground, which means that the plant will 
not develop and become pro ductive . In Mexico's view, were the opposite true, waste disposal sites 
across the world, and particularly those in countries that are centres of origin for avocados, would 
be full of avocado trees at different stages of growth.2102 
7.1164.   The expert Fernando Plieg o Alfaro indicates that, once the avocado plant has germinated, 
its vigour and size will depend on the soil characteristics, with the biggest and most vigorous plants 
being those that grow in nutrient -rich soils or in poor soils that have been properly fer tilized.2103 
7.1165.   Asked how easy it is for a seed taken from a fresh avocado fruit imported for consumption 
to germinate, for the germinated seed to produce a seedling, and for this seedling to grow and 
become a productive tree, Mr Pliego Alfaro replied that it i s not easy, but it can happen . Moreover, 
Mr Pliego Alfaro states that Costa  Rica's climate means that if the humidity and temperature 
 
2096 Fernando Pliego Alfaro's response to Panel question No. 11 for the experts.  
2097 Fernando Pliego Alfaro's clarification with respect to his response to Panel question No. 11 for 
the experts.  
2098 Ricardo Flores Pedauyé's response to Panel question No. 11 for the experts.  
2099 Climatic regions and subregions of Costa Rica, (Exhibit CRI -29). 
2100 ARP-002-2017, (Exhibit MEX -84), p. 7 (citing CONSULSANTOS (2010), (Exhibit MEX -119)); 
ARP-006-2016, (Exhibit MEX -85), p. 7.  
2101 Mexico, transcript of the Panel's meeting with the parties and the experts, day 1, p. 9.  
2102 Mexico's specific comments on the experts' responses to Panel question No. 11 for the experts.  
2103 Fernando Pliego Alfaro's response to Panel question No. 10(c) for th e experts.  WT/DS524/R  
- 295 - 
  conditions are right, particularly in the rainy season, and the plant becomes established and is not 
removed, then it can indeed happen, although the probability is low, but it can happen . According 
to Mr Pliego Alfaro, once the plant is established in the ground and once the germination process is 
complete, the plant will grow to a greater or lesser extent depending on facto rs such as the soil 
conditions, but it will not die and will take several years to form flowers, if it is a seed plant, and 
then bear fruit.2104 
7.1166.   Mr Pliego Alfaro adds that the most delicate phase is the seed germination and seedling 
establishment process . Therefore, according to him, if the seed falls at a time when the soil is not 
waterlogged, but there is sufficient humidity and an acceptable temperature, and a seedling of half 
a metre or a metre or so becomes established, that seedling, depending on the co nditions, may 
grow to a greater or lesser extent, but it is already viable.2105 
7.1167.   The Panel notes that, in addition to the flaws in Costa  Rica's consideration of the 
edaphoclimatic conditions conducive to the germination of seeds, there is no analysis, 
charact erization or evidence in the reports of the conditions conducive to the subsequent 
development of the embryo, or of the probabilities of this embryo becoming a developed plant that 
grows into a tree capable of bearing fruit . In the Panel's view, the lack o f consideration of the 
edaphoclimatic conditions conducive to the development of the avocado tree after germination 
affects the assessment of the availability of host plants, and thus the probability of spread of ASBVd.  
7.1168.   In the Panel's view, in reaching a g eneralized conclusion on spontaneous germination, 
without considering in the assessment of the elements and factors of the probability analysis the 
differences in the edaphoclimatic conditions in the various regions of the country and the different 
situati ons in which a seed could be discarded (for example, on a farm, in a garden, or at a waste 
disposal site), Reports ARP -002-2017 and ARP -006-2016 overestimated the probability of 
spontaneous germination occurring in the entire PRA area . The Panel also finds  that there is a failure 
to take into account the edaphoclimatic conditions conducive to the development of the avocado 
tree after germination, which affects the assessment of the availability of host plants, and thus the 
probability of spread of ASBVd.  
7.4.5.3.3.12   Conclusion to the section  
7.1169.   With regard to the diversion from intended use and the spontaneous germination in 
Reports  ARP-002-2017 and ARP -006-2016, the Panel concludes that:  
a. There is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the existence of the diversion from intended use of seeds from fresh fruit for consumption, 
and there are no estimates, even in qualitative terms, of the scale on which this diversion 
occurs in Costa  Rica, which prevented the risk analyst from cond ucting either a qualitative 
or quantitative assessment of the probability of entry, establishment or spread of ASBVd 
in Costa  Rica that would give due  consider ation to  this diversion from intended use.  
b. There is insufficient scientific evidence in Reports A RP-002-2017 and ARP -006-2016 on 
the occurrence of spontaneous germination, and there are no estimates, even in 
qualitative terms, of the scale on which this spontaneous germination occurs in Costa  Rica, 
which prevented the risk analyst from conducting eith er a qualitative or quantitative 
assessment of the probability of entry, establishment or spread of ASBVd in Costa  Rica 
that would give due  consider ation to  this spontaneous germination.  
c. In reaching a generalized conclusion on spontaneous germination, with out considering in 
the assessment of the elements and factors of the probability analysis the differences in 
the edaphoclimatic conditions in the various regions of the country and the different 
situations in which a seed could be discarded (for example, o n a farm, in a garden, or at 
a waste disposal site), Reports ARP -002-2017 and ARP -006-2016 overestimated the 
probability of spontaneous germination occurring in the entire PRA area . There is also a 
failure to take into account the edaphoclimatic conditions  conducive to the development 
 
2104 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, 
p. 36. 
2105 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, 
p. 65. WT/DS524/R  
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  of the avocado tree after germination, which affects the assessment of the availability of 
host plants, and thus the probability of spread of ASBVd.  
7.4.5.3.4   Whether the likelihood  of entry, establishment and spread was evaluated  in 
Reports ARP -002-2017 and ARP -006-2016  
7.1170.   Mexico  claims that Costa  Rica's measures are not based on a risk assessment within the 
meaning of paragraph 4 of Annex A to the SPS  Agreement .2106 Mexico notes that the "evaluation of 
the likelihood" must be understood as a systematic and reasoned calculation of the incidence  of 
possible favourable instances , and that Costa  Rica should have calculated, in a systematic and 
reasoned manner, the incide nce of possible favourable instances  in relation to the entry, 
establishment and spread of ASBVd in Costa  Rican territory as a result of the importation of fresh 
avocados for consumption from Mexico.2107 
7.1171.   Mexico notes that, for each stage identified along the  pathway, information should have 
been collected so as to determine or estimate, qualitatively or quantitatively, each and every step 
that the pit of a fresh avocado originally imported for consumption would have to go through in order 
for the risk to beco me a reality.2108 
7.1172.   Costa  Rica submits that Mexico has failed to demonstrate how Costa  Rica's risk assessment 
is inconsistent with the definition in paragraph 4 of Annex A to the SPS  Agreement2109, and indicates 
that each and every one of the factors identified by Mexico was considered by the risk analyst, taking 
into account the information and scientific evidence available.2110 
7.1173.   The Panel will analyse below the various factors and elements of Costa  Rica's risk 
assessment, beginning with the evaluation of the likelihood  of entry, followed by the evaluation of 
the likelihood of establishment, and concluding with the evaluation of the likelihood of spread.  
7.4.5.3.4.1   Evaluation of the likelihood of entry  
7.1174.   Mexico  submit s that Costa  Rica should have calculated, in a systemic and reasoned 
manner, the situations that it considered to be conducive  and possible in which ASBVd could move 
from the point of origin to within Costa  Rica through the pathway of fresh avocados import ed for 
consumption from Mexico.2111 
7.1175.   Mexico asserts that it is not possible to draw from the PRAs an analysis evaluating the 
probability of entry of ASBVd according to the various pathways of transmission, or its dispersal 
ability to move from the pathway to a host in Costa  Rican territory.2112 
7.1176.   Mexico contends that, had Costa  Rica considered information on the conditions and events 
that occur along the pathway of fresh avocados imported for consumption, it would have found that 
the probability of entry is negligible, if not nil .2113 
7.1177.   For Mexico, th e lack of specific evidence cited for the purposes of the risk analysis of the 
pathway means that it is questionable that Costa  Rica has objectively evaluated the likelihood  of risk 
of entry of ASBVd into its territory through the pathway of fresh avocados  imported for consumption, 
and, as a result of failing to collect  specific scientific evidence or generat e the necessary information, 
the outcome of the risk assessment was the over -estimation of this risk .2114 
7.1178.   Mexico adds that it would appear from the revie w of the risk assessment and the verification 
of its results that Costa  Rica assumed that 100% of the fresh avocados imported from Mexico are 
carriers of the asymptomatic variant of ASBVd, and that all the avocado pits will be used either by 
 
2106 Mexico's first written subm ission, para. 382; second written submission, para. 169.  
2107 Mexico's first written submission, para. 272.  
2108 Mexico's response to Panel question No. 158, para. 106.  
2109 Costa Rica's second written submission, para. 3.23.  
2110 Costa Rica's comments on Mexico's response to Panel question No. 158, para. 64.  
2111 Mexico's first written submission, paras.  273 and 314.  
2112 Mexico's first written submission, paras.  283-284. 
2113 Mexico's second written submission, para. 116.  
2114 Mexico's second written submission, paras.  125 and 127.  WT/DS524/R  
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  individuals, w ho plant the pits in their backyards, or by farmers, or will be discarded, presuming also 
that all such pits will spontaneously germinate at waste disposal sites.2115 
7.1179.   Costa  Rica submits that it correctly evaluated the probability that ASBVd would enter its 
territory and move from the pathway (fresh fruit for consumption from Mexico) to a suitable host, 
leading to the establishment and spread of ASBVd and its disease.2116 
7.1180.   Costa  Rica asserts that it evaluated the probability of entry of ASBVd in accordance with 
the factors contained in the manual, which is based on ISPM No.  112117, and that, on the basis of 
the scientific evidence available at the time of the risk assessment, it found: that ASBVd is present 
in Mexico and is not subject to any specific regulations; t hat, as a viroid that is systemic in the plant 
tissue, ASBVd survives transport and storage; that pest management procedures are unable to 
detect fruits with asymptomatic ASBVd; and that the germination of seeds from symptomless fruit 
leads to the emergenc e of avocado trees with ASBVd.2118 
7.1181.   Costa  Rica indicates that the probability that ASBVd may enter Costa  Rica through the 
pathway of imported avocados is high due to the country's specific climatic conditions and the 
cultivation practices , and that these elements were fully assessed in its PRA.2119 
7.1182.   Costa  Rica notes that, on the basis of coherent reasoning and respe ctable scientific 
evidence, it found: the prevalence of ASBVd in Mexico; the existence of  symptomless fruit with 
ASBVd, in which the viroid cannot be visually detected; the presence of the viroid with infective 
capacity in the seeds; the viability of the s eeds after transport and storage; the high transmission 
potential of the seeds of symptomless fruit; and the capacity of the seeds to germinate in Costa  Rican 
soil naturally (waste) or intentionally (diversion from intended use). Costa  Rica adds that Mexic o has 
failed to demonstrate that the conclusions reached by Costa  Rica in relation to the "high" probability 
of entry of ASBVd do not find sufficient support in the existing scientific evidence.2120 
7.1183.   The Panel  will address the parties' foregoing arguments on the likelihood  of entry of ASBVd 
in Costa  Rica when analysing each of the factors and elements considered by Costa  Rica in its risk 
assessment to determine this probability of entry. In this connection, Reports ARP -002-2017 and 
ARP-006-2016 considered four  factors: (i)  the probability of the pest being associated with the 
pathway at origin; (ii)  the probability of survival during transport and storage; (iii)  the probability 
of pest surviving existing pest management procedures; and (iv)  the probability of t ransfer to a 
suitable host. Reports ARP -002-2017 and ARP -006-2016 assigned a high risk to each of these four 
factors on the basis of the consideration of certain elements2121 within each factor, and the 
assignment of points to each of these elements.  
7.1184.   Mexico  notes that it analyses the PRAs in light of ISPM No.  11, since Article  5.1 of the 
SPS Agreement  requires that the risk assessment be conducted on the basis of the techniques of 
the relevant international organizations, and the PRAs themselves indicate that  they have been 
prepared in a manner that is harmonized with ISPM No.  11.2122 
7.1185.   Mexico contends that, in accordance with ISPM No.  11, Costa  Rica should have: 
(i) identified the entry pathway; (ii)  evaluated the probability of the pest being associated with the  
pathway at origin; (iii)  evaluated the probability of survival during transport or storage; 
(iv) evaluated the probability of pest surviving existing pest management procedures; and 
 
2115 Mexico's second written submission, para. 125.  
2116 Costa Rica's first written submission, para. 5 .92. 
2117 Costa Rica's first written submission, para. 5.93.  
2118 Costa Rica's first written submission, para. 5.94.  
2119 Costa Rica's opening statement at the first meeting of the Panel, para. 8 (citing Cultural practices in 
sowing and managing avocado seeds in Co sta Rica  (2019), (Exhibit CRI -44); Affidavit of  Juan Gamboa  Robles  
(2019) , (Exhibit CRI -45); Affidavit of  Francisco Fallas Serrano  (2019) , (Exhibit CRI -46); Affidavit of  
Francisco  Cordero Navarro  (2019) , (Exhibit CRI -47); Affidavit of  Daniel Ureña Zumbado  (2019) ,  
(Exhibit CRI -48); and Affidavit of  Francisco  Elizondo Ureña  (2019) , (Exhibit CRI -49)). 
2120 Costa Rica's first written submission, para. 5.126.  
2121 The Panel notes that the parties refer to factors included within the factors being analysed. In  order 
to ensure the clarity of its analysis, the Panel will refer to these factors within the factors as "elements".  
2122 Mexico's first written submission, para. 285.  WT/DS524/R  
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  (v) evaluated the probability of transfer to a suitable host.2123 Mexico submits that Costa  Rica did 
not follow these steps.2124 
7.1186.   The Panel  notes that Costa  Rica's risk assessment follows the structure mentioned by 
Mexico for the evaluation of the likelihood of entry. The only step that Mexico indicates is not included 
in the section on the evaluation of the likelihood of entry is the identification of the relevan t pathway 
for the entry of ASBVd into Costa  Rican territory.  
7.1187.   Mexico  asserts  that Costa  Rica failed to identify the relevant pathways for the entry of 
ASBVd into its territory, in accordance with section 2.2.1.1 of ISPM No. 11.2125 Mexico contends that 
it is not possible to find a description or evaluation of the hypothetical pathways for the entry of 
ASBVd in relation to fresh avocados for consumption, and that the PRAs do not support with scientific 
evidence or testimonies the fact that the hypothetical path way of fresh avocados imported for 
consumption from Mexico is a new or potential pathway for the entry of ASBVd.2126 Mexico adds that 
the scientific doctrine cited in the PRAs refers to the pathway of entry through propagation, and 
transmission by mechanical  means or by pollen, but not to the importation of fresh avocados for 
consumption from Mexico. For Mexico, the identification of a pathway must be supported with 
specific scientific evidence, and Costa  Rica should have considered specific information on th e 
conditions and events that occur along the pathways analysed.2127 
7.1188.   Mexico adds that Costa  Rica should have justified the choice of pathway (importation of 
fresh avocados for consumption from Mexico) with scientific evidence that determined, on the basis 
of a systemic and reasoned evaluation, that this pathway is associated with the entry of ASBVd, and 
this evaluation should have been conducted for each variant of ASBVd.2128 
7.1189.   Mexico contends that, as a result, Costa  Rica did not conduct a probability evaluation that 
would allow the risk of entry to be recognized for each of the entry pathways for ASBVd in 
international trade in fresh avocados for consumption from Mexico.2129 
7.1190.   Costa  Rica, for its part, argues that it identified two entry pathways for ASBVd 
(fresh  avocados for consumption and avocado plants for planting) as these are the only two avocado 
products that Costa  Rica imports. Costa  Rica notes that Report ARP -006-2016 identifies both 
pathways and Report ARP -002-2017 only examines the pathway of fre sh avocados because this is 
the only avocado product that Costa  Rica imports from Mexico.2130 
7.1191.   The Panel  notes that Report ARP -002-2017, which was prepared for a number of pests, 
indicates in its initiation stage that the phytosanitary policy under review in the document is that 
covering the importation into Costa  Rica of fresh avocados ( Persea americana  Mill.) for 
consumption.2131 The Report ARP -006-2016 indicates in its initiation stage that the analysis is divided 
into fresh fruit for consumption and plants f or planting.2132 In this Panel's view, the reports identify 
for analysis the pathways that were determined to be relevant by Costa  Rica. 
7.1192.   With regard to Mexico's argument on the lack of scientific evidence on the identification of 
the pathway, in its analysis  of the evaluation of the four aforementioned factors, the Panel will 
examine the scientific evidence used in relation to the evaluation of the likelihood of entry of ASBVd 
through the pathway of fresh avocados for consumption from Mexico.  
7.1193.   Mexico includes in its arguments a table containing a number of assertions made by 
Costa  Rica in the PRA that, according to Mexico, constitute central aspects of the assessment and 
that lack a sufficient scientific basis; and a table that includes Mexico's comments on Costa Rica's 
assertions in Reports ARP -002-2017 and ARP -006-2016, comparing them with the original sources 
 
2123 Mexico's first written submission, para. 288.  
2124 Mexico's first written submission, para.  289. 
2125 Mexico's first written submission, paras.  290-291. 
2126 Mexico's first written submission, para. 292.  
2127 Mexico's first written submission, paras.  290-294; second written submission, para. 115.  
2128 Mexico's first written submission, para. 295.  
2129 Mexico's  first written submission, para. 296.  
2130 Costa Rica's first written submission, paras.  5.102 -5.103; second written submission, para.  3.32. 
2131 ARP-002-2017, (Exhibit MEX -84), p. 10.  
2132 ARP-006-2016, (Exhibit MEX -85), p. 14.  WT/DS524/R  
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  used, which, according to Mexico, demonstrate that Costa  Rica failed to take scientific evidence into 
account when assessing the risk.2133 Mexico also sub mits an exhibit on the evidence cited in the 
PRAs.2134 The Panel takes into account the content of these tables when examining the evaluation 
of the likelihood of entry, establishment and spread and of the associated potential biological and 
economic consequ ences in Reports ARP -002-2017 and ARP -006-2016.  
Probability of the pest being associated with the pathway at origin  
7.1194.   The first factor considered by Reports ARP -002-2017 and ARP -006-2016 is the probability 
of the pest being associated with the pathway at ori gin. This probability was determined to be high 
after considering the following five elements: (i)  the prevalence of the pest in the source area; 
(ii) the occurrence of the pest in a life stage that would be associated with commodities, containers, 
or conv eyances; (iii)  the volume and frequency of movement along the pathway; (iv)  seasonal 
timing; and (v)  pest management, cultural and commercial procedures applied at the place of origin.  
7.1195.   Mexico  asserts that Costa  Rica failed to correctly evaluate the probability of ASBVd being 
associated at origin with the pathway of fresh avocados imported for consumption from Mexico. 
Mexico contends that, in accordance with section 2.2.1.2 of ISPM No.  11, Costa  Rica should have 
deter mined the probability of the pest being associated with the pathway at origin, but the PRAs do 
not show that Costa  Rica has conducted the corresponding evaluation nor do they contain scientific 
evidence to support the claims that characterize the probabili ty of entry of a pest being associated 
with the pathway at origin as high.2135 
7.1196.   Mexico claims that Costa  Rica should have:  
a. Evaluated the prevalence of ASBVd and its disease in the source areas of fresh avocados 
for consumption from Mexico, including scientifi c evidence related to this prevalence in 
each of the regions producing fresh avocados for consumption destined for Costa  Rica. 
Mexico states that there is no scientific evidence confirming the presence of ASBVd and 
its disease in the regions that were the source areas of the fresh avocados for consumption 
that were imported into Costa  Rica from Mexico until 2015; and that the only scientific 
evidence in the PRA relates to evaluations that lack representativeness and do not specify 
whether the orchards studi ed produce avocados for export, or whether they exported to 
Costa  Rica. For Mexico, the study by Vallejo Pérez et al. (2017) is not representative of 
either Michoacán or Mexico.2136 Mexico adds that Costa  Rica should have considered the 
origin of the fruit, since the prevalence of ASBVd has not been confirmed in states such 
as Jalisco.2137 Mexico also asserts that the scientific testimonies cited do not refer to 
evidence to estimate the prevalence of the pest in Mexico or the potential economic 
consequences, be cause the SINAVEF report (2010) notes that ASBVd is present in some 
areas and does not indicate a specific prevalence; and the CABI and EPPO databases are 
imprecise sources.2138 
b. Evaluated the occurrence of ASBVd and its disease in a life stage that would be associated 
with commodities, containers or conveyances. According to Mexico, Ploetz et al. (2011) 
refers to the way in which the disease is distributed in avocado plants and not to the life 
stages of ASBVd and its disease, so the PRAs do not suppo rt with scientific evidence the 
life stages of ASBVd and its disease that would be associated with the pathway of fresh 
avocados imported for consumption from Mexico.2139 
 
2133 Mexico's first written submission, paras.  417 and 434.  
2134 Mexico's second written submission, para. 130 (referring to México, Relación de testimonios 
científicos utilizados en los ARP de Costa  Rica (Mexico, List of scientific evidence used in Costa Rica's PRAs) , 
(Exhibit MEX -233)). 
2135 Mexico's first written submission, para. 297.  
2136 Mexico's first written submission, para. 298 (referring to Vallejo Pérez et al. (2017), (Exhibit  MEX-
47)). 
2137 Mexico's second written submission, para. 121 (citing Declaración Jurada de Affidavit of  Ramón 
Ayala Sánchez, (Exhibit  MEX-225)). 
2138 Mexico's second written submission, para. 119 (citing SINAVEF, Update of the inventory list (2010), 
(Exhibit CRI -13)). 
2139 Mexico's first written submission, para. 298 (referring to Ploetz et al. (2011), (Exhibit  MEX-56)). WT/DS524/R  
- 300 - 
  c. Evaluated the volume and frequency of movement along the pathway of fresh avocados 
imported for consumption from Mexico. Mexico asserts that the PRAs refer only to the 
average volume of avocados imported by Costa  Rica, when Costa  Rica should have 
evaluated, either qualitatively or quantitatively, the probability of entry of ASBVd with 
regard  to the volume of symptomatic and symptomless fruit that could be present in each 
consignment imported from Mexico, as well as the frequency of movement along the 
pathway of fresh avocados imported for consumption from Mexico. For Mexico, it is 
apparent fr om the PRAs that Costa  Rica failed to conduct an assessment  of the probability 
of entry of symptomatic and symptomless fruit based on actual and statistical data, and 
that Costa  Rica assumes that: (i)  100% of fresh avocados for consumption imported from 
Mexico are carriers of asymptomatic ASBVd; (ii)  100% of the seeds of these avocados will 
remain viable after the fruit has been consumed; (iii)  100% of these seeds will be used as 
propagati on material in commercial orchards; and (iv)  100% of these seeds will  germinate 
and produce diseased trees which, in turn, will bear fruit in which all variants of ASBVd 
are present.2140 
d. Evaluated the probability of entry based on seasonal timing. Mexico contends that the 
PRAs do not examine the probability of entry of ASBVd based on its seasonality, and 
merely mention that the pest is not seasonal, citing Ploetz et al. (2011), which says that 
symptoms may vary according to the climate, meaning that there is no scientific basis for 
this evaluation.2141 Mexico adds that Costa  Rica should have considered seasonality 
because, at higher temperatures, symptoms are more likely to appear and a symptomless 
fruit is less likely be exported.2142 
e. Evaluated pest management, cultural and commercial procedures applied at the place of 
origin. Mexico submits that Costa  Rica's PRAs merely state that no protection product is 
known to be effective against this pest, that Mexico failed to provide any inform ation on 
nursery regulations, and that selection prior to packing does not eliminate symptomless 
fruit, when the Mexican legislation applicable to the control of the quality and safety of 
avocados for export should have been considered, in addition to othe r measures indicated 
by the scientific doctrine that can be used to control and eradicate the presence of 
ASBVd.2143 According to Mexico, there are legal instruments publicly available in the 
country that should have been considered, and that reduce the prob ability of risk of entry 
of fresh avocados for consumption that could be infected with ASBVd.2144 
7.1197.   As regards the prevalence of ASBVd and its disease in the source areas of fresh avocados 
for consumption from Mexico, as part of its arguments under Article  5.2 of the SPS  Agreement , 
Mexico adds that, although Costa  Rica should have analysed the extent of the occurrence of ASBVd 
and its disease in a particular area or at a particular point in time2145, Costa  Rica does not rely upon 
scientific and representative evi dence or any other type of valid evidence that confirms the specific 
area within Mexico's territory in which ASBVd and its disease are present.2146 Mexico notes that the 
PRAs state that ASBVd is present in Mexico, but do not contain details on its distributi on in the 
country. Mexico contends that, regardless of the fact that this claim fails to address the prevalence 
of the disease in accordance with ISPM No.  11, Costa  Rica should have based its risk analysis on an 
assessment of prevalence, rather than on mer e assertions that lack any precise scientific basis.2147 
7.1198.   Mexico asserts that three of the four sources cited by Costa  Rica to characterize the 
prevalence of ASBVd as high (that is, that ASBVd is widely distributed or present in Mexico) were 
not objectively a nalysed, because: (i)  SINAVEF (2010) notes that ASBVd is present in some areas, 
fails to indicate a specific prevalence2148, and confirms the low or negligible prevalence and limited 
 
2140 Mexico's first written submission, para. 298; second written submission, para. 121.  
2141 Mexico's first written submission, para. 298 (citing Ploetz et al. (2011), (Exhibit  MEX-56)). 
2142 Mexico's second written submission, para. 121.  
2143 Mexico's first written submission, para. 298.  
2144 Mexico's second written submission, para. 119 (citing México, Marco normativo relacionado con la 
industria del aguacate en México (2019)  (Mexico, Regulatory framework related to the avocado industry in 
Mexico (2019)) , (Exhibit MEX -126)). 
2145 Mexico's first w ritten submission, paras.  454-455. 
2146 Mexico's first written submission, para. 456.  
2147 Mexico's first written submission, para. 457.  
2148 Mexico's second written submission, para. 119 (citing SINAVEF, Update of the inventory list (2010), 
(Exhibit  CRI-13)). WT/DS524/R  
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  distribution of ASBVd in Mexico; (ii)  De la Torre et al. (2009) is a study that is unrepresentative and 
was not corroborated by subsequent field samples; (iii)  the statement concerning the study by 
Vallejo Pérez et al. (2017) is false, as Costa  Rica claims that ASBVd has spread across 14% of the 
territory of the state of Michoacá n, when, in the original text, the 14% cited refers to the incidence 
of ASBVd in 4.9 of the 35 trees sampled in an orchard in the municipality of Tingambato, Michoacán, 
and it is also noted that, of another 70 trees sampled located at different points, not  one tested 
positive.2149 
7.1199.   Costa  Rica submits, with regard to ISPM No.  11, that a Member's obligation is not to act 
"in accordance with", but rather, to "take into account" risk assessment techniques developed by 
the relevant international organizations2150, but that, in any event, by following the manual that is 
entirely based on ISPM No.  11, Costa  Rica considered each and every one of the five factors2151 
related to the probability of the pest being associated with the pathway at origin2152: 
a. Costa Rica notes that it took into account the prevalence of the pest in the source area, 
which is a factor listed in Article  5.2 of the SPS  Agreement . Costa  Rica mentions that it 
requested information from Mexico but never received a reply, and therefore use d the 
existing scientific evidence in the literature, which is another factor listed in Article  5.2. 
Costa  Rica states that Report ARP -002-2017 considered and relied upon the undisputed 
fact that ASBVd is present in Mexico. Costa  Rica refers to the studies  by De la Torre et al. 
(2009), to the SINAVEF report (2010), and to the CABI and EPPO databases. With regard 
to the study by Vallejo Pérez et al. (2017), which, according to Costa  Rica, concludes that 
the incidence of the viroid is 14% in Tingambato, Micho acán, Costa  Rica notes that it is 
particularly relevant because it focuses on Michoacán, which is the main Mexican 
avocado -producing area and where 86.3% of the country's avocados are produced, and 
that there is no additional information that Costa  Rica could have evaluated, as no official 
or other study has been conducted in Mexico to determine the prevalence of ASBVd. 
Costa  Rica adds that ASBVd is present in Mexico without being subject to any official 
mechanism that mitigates its spread, so it can be pre sumed that the pest is widely 
distributed. Costa  Rica submits that Vallejo Pérez et al. (2017) points out that the annual 
rate of contagion of ASBVd is 4.75%; and that Mexico has no domestic regulations to 
control the pest, nor has it declared that certain  areas within its territory are free of ASBVd, 
therefore the probability of prevalence of the pest in Mexico was reasonably deemed to be 
high.2153 
b. With regard to the occurrence of the pest in a life stage that would be associated with 
commodities, containers  or conveyances, Costa  Rica submits that its PRA considered the 
study by Ploetz et al. (2011), which indicates that ASBVd is systemic in avocado trees and 
the viroid is therefore present in all tissues of the plant (seeds, leaves, branches, fruit and 
roots).2154 Costa  Rica adds that, although the symptoms caused by ASBVd are more 
pronounced at high temperatures than at low temperatures, the viroid remains active 
regardless of the temperature variations, provided that the plant tissue stays in good 
condition.2155 Costa  Rica further notes that a viroid does not have a "life stage" as such, 
which is taken into account, the "life stage" aspect of ISPM No.  11 is adapted, and 
consideration is given to the fact that the pest is systemic in avocado trees and that the 
seeds of symptomless fruit have a high capacity to transmit the pest to the plants that 
develop from these seeds.2156 Costa  Rica adds that a viroid is present in the tissue of the 
 
2149 Mexico's first written submission, paras.  458-459 (citing SINAVEF, Updated inventory list (2010), 
(Exhibit  CRI-13); Vallejo Pérez et al. (2017) , (Exhibit MEX -47); and De la Torre et al. (2009),   
(Exhibit MEX -70)). 
2150 Costa Rica's first written submission, para. 5.104.  
2151 The Panel notes that it refers to these factors as "elements" throughout its analysis.  
2152 Costa Rica's first written submission, para. 5.105; second written submission, para. 3.32.  
2153 Costa Rica's first written submission, para. 5.106 (citing México, El aguacate en México (2019) , 
(Exhibit  MEX-40), p. 1; De la Torre et al. (2009),  (Exhibit MEX -70); SINAVEF, Update of the inventory list 
(2010), (Exhibit  CRI-13); CABI (2019), (Exhibit CRI -14); EPPO Costa Ric a (2019), (Exhibits CRI -41 and  
MEX-208); EPPO Global Database, World distribution  (2019) , (Exhibit MEX -48); and Vallejo Pérez et al. (2017) , 
(Exhibit MEX -47)); second written submission, para. 3.33.  
2154 Costa Rica's first written submission, para. 5.107 (citing Ploetz et al. (2011), (Exhibit MEX -56), 
p. 5). 
2155 Costa Rica's first written submission, para. 5.107.  
2156 Costa Rica's response to Panel question No. 167, para. 192.  WT/DS524/R  
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  commodity and is not vulnerable to transport or storage processes, and that th is situation 
increases the risk outcome compared to other types of pests in the pathway of fresh fruit 
for consumption, for which several of the aforementioned factors would not contribute to 
the final risk value.2157 
c. With regard to the volume and frequency of movement along the pathway, Costa  Rica 
submits that it considered that the volume of avocados imported is, on average, 12,600 
tonnes, with Mexico being the main country of origin, therefore the volume of Mexican 
avocado imports is very representative.2158 
d. Turning to seasonal timing, Costa  Rica asserts that it found that ASBVd is not seasonal, 
although its symptoms may vary depending on the climate, as established by Ploetz et al. 
(2011); and that the study by Everett  and Siebert (2018) concludes that ASBVd is 
expected to survive wherever avocado trees grow, regardless of the climate.2159 
e. With respect to pest management, cultural and commercial procedures applied at the place 
of origin, Costa  Rica contends that it reques ted information from Mexico on its nursery 
certification and ASBVd control programmes, and on the existence of areas free of ASBVd, 
but Mexico failed to provide information in this regard.2160 Costa  Rica adds that the Marco 
normativo relacionado con la indus tria del aguacate en México  (Regulatory framework for 
the avocado industry in Mexico) provided by Mexico does not include any specific 
regulations for the control and management of ASBVd, and that Mexico failed to provide 
any information relating to the AS BVd management procedures that are currently being 
applied on Mexican cultivars.2161 
7.1200.   With regard to the first element, i.e. the prevalence of the pest in the source area , the 
Panel  notes that Report ARP -002-2017 deemed the probability of this element to be h igh, after 
determining that ASBVd is present without details of its distribution  in Mexico 2162; that the incidence 
rate in Michoacán is 14%2163; and that Mexico has neither declared areas within its territory to be 
pest free areas or areas of low pest prevale nce, nor provided any evidence to this effect.2164 
7.1201.   Report ARP -006-2016, which was prepared for various countries where ASBVd is present, 
also deemed  the probability of this element to be high, after determining the presence of ASBVd in 
these countries. With regard to Mexico, it indicates that ASBVd is present without details of its 
distribution.2165 Report ARP -006-2016 does not explain why a high probability is assigned to the 
prevalence of the pest in the source area for all countries, including Mexico.  
7.1202.   Report  ARP-002-2017 refers to technical and scientific sources that contain relevant 
information on the presence of ASBVd in Mexico. According to Mexico, Costa  Rica should have 
evaluated this element with scientific evidence on each of the avocado -producing regi ons in Mexico. 
However, Mexico does not refer to other studies that contain the detailed information that it 
considers should have been obtained, nor does it appear that Mexico would have helped Costa  Rica 
to gather more information in this regard.2166 The Panel does not reproach Costa  Rica's use of the 
 
2157 Costa Rica's response to Panel question No. 167, para. 193.  
2158 Costa Rica's first written submission, para. 5.108.  
2159 Costa Rica's first written submission, para. 5.109 (referring to Ploetz et al. (2011) ,  
(Exhibit  MEX-56); and K.R. Everett  and B. Siebert, "Exotic plant disease threats to the New  Zealand  avocado 
industry and climatic suitability: A Review", New Zealand  Plant Protection , Vol. 71 (2018), páginas 25 -38 
(Everett and Siebert (2018) ), (Exhibit CRI -27), p. 27).  
2160 Costa Rica's first written submission, para. 5.110 (citin g Solicitud de información a México (2015), 
(Exhibit  CRI-42)). 
2161 Costa Rica's first written submission, para. 5.111 ( citing Mexico, Regulatory framework related to 
the avocado industry in Mexico  (2019) , (Exhibit MEX -126)). 
2162 ARP-002-2017, (Exhibit MEX-84), p. 34 (citing De la Torre et al. (2009),  (Exhibit MEX -70); 
SINAVEF, Update of the inventory list (2010), (Exhibit CRI -13); and CABI, Datasheet report for ASBVd, 
(Exhibit CRI -102)). 
2163 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing Vallejo Pérez et al. (2017) , (Exhibit MEX -47)). 
2164 ARP-002-2017, (Exhibit MEX -84), p. 34.  
2165 ARP-006-2016, (Exhibit MEX -85), p. 14 (citing De la Torre et al. (2009),  (Exhibit MEX -70); 
and SINAVEF, Update of the inventory list (2010), (Exhibit CRI -13)). 
2166 The Panel notes that, in response to Panel question No. 59 on the information provided by Mexico to 
Costa Rica for the preparation of the risk analysis, Mexico cites Exhibits MEX-18, MEX -138 and  MEX-201. 
Exhibit MEX -18, which is  a background overview by Me xico of the measures applied by Costa Rica, does not WT/DS524/R  
- 303 - 
  study by Vallejo Pérez et al. (2017)2167, which reported that the incidence of trees infected in the 
orchards studied in the municipality of Tingambato, Michoacán, is 14%, because it is a relevant 
scientif ic study that, as such, constitutes a respected scientific source. In addition, Mexico itself 
notes that no official or other study has been conducted in the country to determine the prevalence 
of ASBVd and its disease throughout Mexican territory, and tha t only isolated studies are available 
that cannot be representative.2168 
7.1203.   However, Report ARP -002-2017 fails to explain how the assertion on the prevalence of 
ASBVd in Michoacán was used, and what weight was attached to it, considering also that the study 
in question is limited to the municipality of Tingambato, Michoacán. During the proceedings, 
Costa  Rica has contended that ASBVd is present in Mexico without being subject to any official 
mechanism that mitigates its spread, so, according to Costa  Rica, it ca n be presumed that the pest 
is widely distributed. Costa  Rica adds that Vallejo Pérez et al. (2017) points out that the annual rate 
of contagion of ASBVd is 4.75%, and that Mexico has no domestic regulations to control the pest, 
nor has it declared that ce rtain areas within its territory are free of ASBVd, therefore the probability 
of prevalence of the pest in Mexico was reasonably deemed to be high.2169 
7.1204.   The Panel notes that the Report ARP -002-2017 does not address  the rate of contagion and 
the domestic regul ations in Mexico, and Costa  Rica fails to explain why it considers ASBVd to be 
widely distributed in Mexico, when its Report ARP -002-2017 states that there are no details of its 
distribution, and that the incidence of ASBVd in Michoacán is 14%. Moreover, S INAVEF (2010) 
indicates that ASBVd is present in Mexico, but only in certain areas and subject to official control.2170 
Report ARP -002-2017 fails to take into account the distribution of ASBVd in Mexico and the 
statement in SINAVEF (2010) that it is under of ficial control. With regard to De la Torre et al. (2009), 
the study does not appear to reach conclusions on the prevalence or distribution of ASBVd in Mexico, 
only doing so on the presence of the viroid in Mexico.2171 
7.1205.   With respect to the second element, i.e.  the occurrence of the pest in a life stage that would 
be associated with commodities, containers or conveyances , Reports ARP -002-2017 and ARP -006-
2016 deemed the probability of this element to be high, after determining that ASBVd is systemic 
in avocado t rees2172, and is therefore present in all the tissues of the plant (seeds, leaves, branches, 
fruit and roots).2173 
7.1206.   According to Manual NR -ARP-PO-01_M -012174, a high probability is assigned to this element 
where a pest in more than one life stage may occur with t he commodity.  
7.1207.   The statement that the viroid is systemic in avocado trees is found in Ploetz et al. (2011). 
However, Reports ARP -002-2017 and ARP -006-2016 fail to explain the criteria for the probability 
 
contain any specific information on the presence and/or distribution of ASBVd in Mexico, and dates from 2019, 
which is after Reports ARP -002-2017 and ARP -006-2016.  Exhibit MEX -138 contains the technical report of a 
visit to Mexico by an SFE official from Costa Rica. The report states that the official toured avocado plantations 
looking for symptoms of ASBVd, but did not find any, or noted that the sporadic cases of defoliation and 
yellowing leaves at one of the plantations could only be verified by a laboratory. The report indicates that the 
owner of a packing plant claimed that he had seen fruit with symptoms in the field but that fruit with these 
symptoms rarely arrived at the packing plant. The document  states that there are no official surveys 
determining areas where ASBVd is present in Mexico.  Exhibit MEX -201 is a submission in which it is claimed 
that Mexico would have no objection to sending Costa Rica information with which to conduct the PRA 
proced ure, after completion of the documentation procedure of the emergency measure, as well as the 
documentation stating that Costa Rica is free of ASBVd. The submission contains no further information.  
2167 Vallejo Pérez et al. (2017), (Exhibit MEX -47). 
2168 Mexico' s first written submission, para. 57.  
2169 Costa Rica's first written submission, para. 5.106 (citing SINAVEF, Update of the inventory 
list (2010), (Exhibit CRI -13); and Vallejo Pérez et al. (2017) , (Exhibit MEX -47)); second written submission, 
para. 3.33. 
2170 SINAVEF, Update of the inventory list (2010), (Exhibit CRI -13), p. 17.  
2171 De la Torre et al. (2009),  (Exhibit MEX -70). 
2172 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 15 (c iting Ploetz et al. (2011), (Exhibit MEX -56)). 
2173 ARP-002-2017, (Exhibit MEX -84), p. 34; ARP -006-2016, (Exhibit MEX -85), p. 15.  
2174 In paragraph 7.267  above , the Panel indicated that it would read Resolutions DSFE -002-2018 
and DSFE -003-2018, which contain the phytosanitary requirements, in conjunction with Reports ARP-002-2017 
and ARP-006-2016 and Manual NR -ARP-PO-01_M -01. Given that the methodology used to prepare the risk 
assessments contained in the reports is based on the manual, and in order to gain a better understanding of 
the risk assessment process, the Panel will read the reports in  conjunction with the manual.  WT/DS524/R  
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  value assigned or why this systemic distribution woul d be equivalent to a pest in more than one life 
stage being associated with commodities, containers, or conveyances. In addition, the source of 
Costa  Rica's concern is the seed inside the avocado fruit, rather than all its tissues (including leaves, 
branch es, and roots). As can be seen in other points of the analysis, Costa  Rica, throughout Reports 
ARP-002-2017 and ARP -006-2016, uses the assertion that ASBVd is of a systemic nature, citing 
Ploetz et al. (2011), and reaches a variety of conclusions that are not substantiated and whose 
relationship with the systemic distribution of ASBVd is neither explained nor demonstrated.  
7.1208.   Costa  Rica admits that a viroid  does not have a "life stage" as such, but claims that the 
"life stage" aspect of ISPM No.  11 is adapted and consideration is given to the fact that the pest is 
systemic in avocado trees and that the seeds from symptomless fruits have a high capacity to 
transmit the pest to the plants that develop from these seeds.2175 Costa  Rica adds that a viroid is 
present in the tissue of the commodity and is not vulnerable to transport or storage processes, and 
that this situation increases the risk outcome compared to o ther types of pests in the pathway of 
fresh fruit for consumption, for which several of the aforementioned factors would not contribute to 
the final risk value.2176 However, considerations on capacity for transmission by symptomless seeds 
and vulnerability t o transport and storage processes are not found under this point of analysis in 
Reports ARP -002-2017 and ARP -006-2016. Moreover, it is not explained why this element 
("life stage") was included when it was considered that it did not apply to ASBVd, with th e risk also 
being classified as high.  
7.1209.   Reports ARP -002-2017 and ARP -006-2016 deemed the probability of the third element, 
i.e. the volume and frequency of movement along the pathway , to be high, after determining that, 
on average, 12,600 tonnes of avocado a re imported into Costa  Rica annually.2177 
7.1210.   Both reports refer to the same total volume of avocado imports. Although Report ARP -002-
2017 concerns fresh fruit from Mexico in particular, the specific number of Mexican avocados was 
not used. This is confirmed by Costa  Rica's own statement, indicating that, in 2014, it imported a 
total of 12,424 tonnes of fresh avocado, of which 10,299 tonnes were from Mexico.2178 Moreover, 
neither Report ARP -002-2017 nor Report ARP -006-2016 provide further explanations or address th e 
frequency of movement along the pathway.  
7.1211.   Reports ARP -002-2017 and ARP -006-2016 deemed the probability of the fourth element, 
i.e. seasonal timing , to be high, after determining that the pest is not seasonal.2179 
7.1212.   Reports ARP -002-2017 and ARP -006-2016 indica te that "[t]he pest is not seasonal", citing 
Ploetz et al. (2011)2180, but this statement does not appear in the cited source, and there are no 
further explanations.  
7.1213.   As regards the fifth element, i.e. pest management, cultural and commercial procedures 
applied at the place of origin , Reports ARP -002-2017 and ARP -006-2016 deemed the probability of 
this element to be high, after determining that no phytosanitary protection product is known to be 
effective against ASBVd2181; that Mexico failed to provide any information on nursery regulations 
that would reduce the incidence of ASBVd in the field2182; and that selection prior to packing 
 
2175 Costa Rica's response to Panel question No. 167, para. 192.  
2176 Costa Rica's response to Panel question No. 167, para. 193.  
2177 ARP-002-2017, (Exhibit MEX -84), p. 34 (citing SFE, Avocado import statistics 2015 -2017 (2019), 
(Exhibit CRI-140)); ARP -006-2016, (Exhibit MEX -85) (citing SFE, Avocado import statistics 2015 -2017 (2019), 
(Exhibit  CRI-140)). 
2178 Costa Rica's first written submission, para. 5.108.  
2179 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Ploetz et al. (2011) , (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 15 (citing Ploetz et al. (2011) , (Exhibit MEX -56)). 
2180 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 15 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2181 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Hadidi et al. (2003), (Exhibit CRI -121));  
ARP-006-2016, (Exhibit  MEX-85), p. 15 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
2182 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing R eport 025 -2015-ARP-SFE (2015),   
(Exhibit MEX -138)); ARP -006-2016, (Exhibit MEX -85), p. 15 (citing Report 025 -2015-ARP-SFE (2015),   
(Exhibit MEX -138)). WT/DS524/R  
- 305 - 
  eliminates symptomatic fruit (should these fruits reach the packing plant), but symptomless fruit is 
not rejected.2183 
7.1214.   The Panel n otes that, according to Mexico, Costa  Rica should have considered the Mexican 
legislation applicable to the quality and safety controls of avocados for export.  The Panel notes that 
Reports ARP -002-2017 and ARP -006-2016 acknowledge that selection prior to p acking eliminates 
symptomatic fruit (should these fruits reach the packing plant), although it is not explained how this 
statement was taken into consideration when assessing  the probability, which was deemed to be 
high. As regards symptomless fruit, howev er, Mexico fails to demonstrate that it has any relevant 
procedures for ASBVd, and it does not appear that Mexico would have provided Costa  Rica with 
relevant information in this respect.  
Probability of survival during transport or storage  
7.1215.   The second facto r addressed in Reports ARP -002-2017 and ARP -006-2016 was the 
probability of survival during transport or storage. This probability was determined to be high, after 
considering the probabilities of the following four elements as high: (i)  the speed and cond itions of 
transport and duration of the life cycle of the pest in relation to time in transport and storage; (ii)  the 
vulnerability of the life stages during transport or storage; (iii)  the prevalence of pest likely to be 
associated with a consignment; and  (iv) the commercial procedures (for example, refrigeration) 
applied to consignments in the country of origin, country of destination, or in transport or storage.  
7.1216.   Mexico  submits that Costa  Rica failed to correctly evaluate the probability of survival 
during transport or storage of ASBVd, considering as a pathway the importation of fresh avocados 
for consumption from Mexico. Mexico adduces that, pursuant to ISPM No.  11, Costa  Rica failed to 
consider temperatures and the recalcitrant nature of avocado seeds, since it did not evaluate:  (i) the 
speed and conditions of transport of fresh avocados for consumption imported from Mexico and the 
duration of the life cycle of the disease in relation to time in transport and storage; (ii)  the 
vulnerability of the life s tages of ASBVd during transport or storage; (iii)  the probability of the 
prevalence of ASBVd associated with the consignment of fresh avocados for consumption imported 
from Mexico; and (iv)  the probability of the seeds' viability decreasing as a result of commercial 
procedures, such as refrigeration, applied from Mexico to the destination point. Mexico notes that 
Costa  Rica failed to provide scientific evidence to prove the foregoing.2184 
7.1217.   Costa  Rica states that it followed the manual, which is based on ISPM No.  11, and took 
into account all the elements that ISPM No.  11 includes as examples of the factors to be 
considered.2185 For Costa  Rica, it is clear from the PRAs that the factors alluded to by Mex ico were 
indeed considered.2186 
7.1218.   Costa  Rica submits that it considered in the PRAs the speed and conditions of transport and 
storage of avocados and the vulnerability of ASBVd during those processes, finding that as long as 
the plant tissues are in a good con dition, the pest will remain infectious because it is a viroid and is 
systemic in all tissues of the plant. Costa  Rica states  that it is for this reason that the speed and 
conditions of transport and storage have no effect on the survival (infectivity) of the pest, and the 
temperature variation does not impact on ASBVd's infective capacity.2187 
7.1219.   Costa  Rica also states that it considered the viability of the seeds following commercial 
procedures applied to consignments, noting that the effect on seed viability was tested in the 
Wutscher and Maxwell (1969) study on mature Lula avocado fruits, which states that temperatures 
need to be between -6.7°C and -7.8°C for seed viability to be reduced by 50%, and at -8.9°C for 
germination to be reduced to zero. Costa  Rica indicates that, when in transit, at no point are the 
avocados subject to temperatures below 2°C, so refrigeration does not affect viability. Costa  Rica 
adds that the scientific evidence on the germination of seeds of the Lula variety was also taken into 
account, which the study by Spalding et al. (1976) found remains at 100% after the seeds were 
 
2183 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Dorantes et al. (2004), (Exhibit CRI -117)); 
ARP-006-2016,  (Exhibit MEX -85), p. 15 (citing Dorantes et al. (2004), (Exhibit CRI -117)). 
2184 Mexico's first written submission, paras.  303-304. 
2185 Costa Rica's first written submission, para. 5.112; second written submission, para. 3.32.  
2186 Costa Rica's first written submission, para. 5.113.  
2187 Costa Rica's first written submission, para. 5.114 (citing Ploetz et al. (2011), (Exhibit MEX -56), p. 5; 
and Everett and Siebert (2018), (Exhibit CRI -27), p. 27).  WT/DS524/R  
- 306 - 
  stored for two months at 4.4°C in closed polyethylene bags; and that Costa  Rica therefore found 
that the seeds of symptomless avocado fruits are viable for germinat ion after being imported and 
the probability that they will transmit ASBVd is very high.2188 
7.1220.   With respect to the first element, i.e. the speed and conditions of transport and duration of 
the life cycle of the pest in relation to time in transport and storage , the Panel  notes that Reports 
ARP-002-2017 and ARP -006-2016 indicate that "[t]he speed and conditions of transport and 
duration of the life cycle of the pest in relation to time in transport and storage have no effect on 
the survival (infectivity) of the pest."2189 This statement in the reports is not substantiated by 
scientific evidence.  
7.1221.   The reports continue with the statement that "[t]his viroid is systemic in the tissues of the 
plant (Ploetz et al. 2011), so as long as the plant tissues are in a good condition, the pest will remain 
infectious ."2190 Although the first statement contains a reference to a scientific source, and this 
reference is contained in that source, the Panel finds no support in the cited source for the second 
statement or for the connection that is made between the part of the st atement that is included in 
the source (that the viroid is systemic in the tissues of the plant) and the rest of the statement 
(that as long as  the plant tissues are in a good condition, the disease will remain infectious ), which 
is baseless. Reports ARP -002-2017 and ARP -006-2016 do not explain this connection either.  
7.1222.   As regards the second element, i.e. the vulnerability of the life stages during transport and 
storage , Reports ARP -002-2017 and ARP -006-2016 indicate that "[t]his pest is not considered 
vulner able, because it is a viroid and is distributed systemically in the plant tissue (Ploetz et al. 
2011), as long as the tissue is in a good condition, the pest will be present and infectious ".2191 The 
Panel notes that there is no concrete scientific basis or e xplanation for the assertions that the pest 
is not considered vulnerable and that while the tissue is in a good condition, the pest will be present 
and infectious, although the assertion that ASBVd is distributed systemically in the plant tissue is 
substan tiated.  
7.1223.   With regard to the third element, i.e. the prevalence of pest likely to be associated with a 
consignment , Reports ARP -002-2017 and ARP -006-2016 state that "[b]ecause the pest is systemic 
in the plant tissue (Ploetz et al. 2011) and the symptoms are  not always expressed, the pest may 
well be associated with the consignment. (Technical Report ARP -025, 2015)".2192 The Panel notes 
that Ploetz et al. (2011) supports the assertion that ASBVd is distributed systemically in plant tissue, 
but not the connection between the systemic distribution of ASBVd in an avocado and the presence 
of ASBVd in a consignment. Moreover, the reference to Report 025 -2015-ARP-SFE (2015) is unclear. 
Lastly, Reports ARP -002-2017 and ARP -006-2016 indicate why it is considered that ASBVd may be 
associated with the consignment, which shows that there is potential for the pest to be associated 
with the consignment, yet they fail to  explain how the probability  of prevalence of the pest likely to 
be associated with a consignment was estimated to be high.  
7.1224.   On the fourth element, i.e. commercial procedures (for example, refrigeration) applied to 
consignments in the country of origin , cou ntry of destination, or in transport or storage , 
Reports  ARP-002-2017 and ARP -006-2016 state that  "[t]he pest is unaffected by commercial 
procedures and it is systemic in the plant tissue (Ploetz et al. 2011)."2193 Costa  Rica again uses the 
statement that th e pest is systemic in the plant tissue, citing Ploetz et al. (2011), without explaining 
how this statement is connected with the statement that the commercial procedures do not have 
any effect on the pest.  
 
2188 Costa Rica's first written submission, para. 5.115 (citing Wutscher and Maxwell  (1969),  
(Exhibit  MEX-132); and Spalding et al. (1976),  (Exhibit MEX -133)); second written submission, para. 3.35 
(citing Wutscher and Maxwell  (1969),  (Exhibit MEX -132); and Spalding et al. (1976),  (Exhibit MEX -133)). 
2189 ARP-002-2017, (Exhibit MEX -84), p. 35; ARP -006-2016, (Exhibit MEX -85), p. 16.  
2190 ARP-002-2017, (Exhibit MEX -84), p. 35 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 16 (citing Ploetz et al. (2011), (Exhibit MEX -56)). (emphasis added)  
2191 ARP-002-2017, (Exhibit MEX -84), pp. 35 -36; ARP -006-2016, (Exhibit MEX -84), p. 16. 
(emphasis  added)  
2192 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz et al. (2011) , (Exhibit MEX -56); and 
Report  025-2015-ARP-SFE (2015),  (Exhibit MEX -138)); ARP -006-2016, (Exhibit MEX -85), p. 16 (citing 
Ploetz  et al. (2011) , (Exhibit MEX -56); and Report  025-2015-ARP-SFE (2015),  (Exhibit MEX -138)). 
2193 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 16 (citing Ploetz et al. (2011), (Exhibit MEX -56)). WT/DS524/R  
- 307 - 
  7.1225.   Reports ARP -002-2017 and ARP -006-2016 also indicat e that the effect on seed viability was 
tested by Wutscher and Maxwell on mature Lula avocado fruits, stating that, for seed germination 
to be affected, temperatures need to be between -6.7°C and -7.8°C for viability to be reduced by 
50%, and at -8.9°C for  germination to be reduced to zero; temperatures  of -5.6ºC and above did 
not affect germination .2194 Reports ARP -002-2017 and ARP -006-2016 add that the average 
temperature of a commercial consignment is between 5ºC and 7ºC2195, and that Spalding et al.  
found that germination of seeds  of the  Lula variety  is 100% after being stored for two months at 
4.4°C in non -perforated polyethylene bags .2196 
7.1226.   It can be seen that s tudies on the viability and germination of seeds of the Lula varie ty are 
cited. The studies cited in Reports ARP -002-2017 and ARP -006-2016 with regard to the viability and 
germination of the seed at different temperatures are relevant to avocados and constitute respected 
scientific sources. However, there is no explanati on under this point of the connection between the 
viability and germination of avocado seeds and the survival of ASBVd in fresh avocado  fruit during 
commercial procedures. In addition, the sources cited refer respectively to a study of Lula variety 
avocado s exposed to sub -freezing temperatures in a freeze chamber2197 and a study on the 
germination capacity of seeds from Florida -grown Lula avocados after being stored in perforated and 
non-perforated polyethylene  bags, and in plastic mesh bags for several month s in a chamber.2198 
Moreover, the second study explicitly concludes that additional information is needed to show the 
effectiveness of the storage procedure with seeds of other Florida avocado cultivars stored for up to 
a year under both laboratory and comme rcial conditions.2199 In Reports ARP -002-2017 and ARP -
006-2016, the risk assessor extrapolates the information from Wutscher and Maxwell (1969) and 
Spalding et al.  (1976) on the Lula variety without any analysis or explanation justifying that the 
information on the Lula variet y, taken from studies carried out under controlled conditions, can be 
extrapolated to the particular situation of Hass avocados imported for consumption.  
7.1227.   The Panel would like to address an additional issue concerning the calculation of the 
probability of t he second factor , i.e. survival during transport and storage. As a final outcome of the 
analysis of the second factor, i.e. the probability of survival during transport or storage,  
Reports  ARP-002-2017 and ARP -006-2016 state that this probability is high ( an average of 3) which, 
according to Manual NR -ARP-PO-01_M -01, is because information was found showing that the pest 
can survive transport. However, throughout the evaluation of this factor in Reports  ARP-002-2017 
and ARP -006-2016, the only scientific evi dence presented is Ploetz et al. (2011), which refers to the 
systemic nature of ASBVd, and the studies on the viability of seeds of the Lula variety in certain 
temperature and storage conditions. It is unclear why a "high" probability is assigned, which, 
according to the manual, would mean that "information was found showing that the pest can survive 
transport", and not a " medium " probability, which, according to the manual, would mean that 
"no information was found showing that the pest does not survive du ring transport, however the 
information found indicates that it could survive".  
7.1228.   The Panel notes that the scientific conclusions on the different elements of this factor, 
i.e. that ASBVd survives in avocados for consumption during the transport and storage of this fruit 
(if the avocado fruit stays alive and if ASBVd is present in the transported fruit), appear to be 
supported by the virology expert Ricardo Flores Pedauyé.2200 However,  the purpose of a panel 
consulting with experts is not to perform its own risk assessment. 2201 It is Costa Rica's task to 
perform the risk assessment. The panel's task it to review the risk assessment  performed by Costa 
Rica, and, in particular, the scienti fic basis and the risk analyst's reasoning . In accordance with its 
task, and for the reasons set out in paragraphs 7.1220 through 7.1227 above,  the Panel considers 
that the aforementioned conclusions are not sufficiently documented with scientific evidence  or 
explained by the risk assessor in Reports ARP -002-2017 and ARP -006-2016, in such a way that it is 
possible to understand how these conclusions on the probabilities were reached.  
 
2194 ARP-002-2017, (Exhibit  MEX-84), p. 36 (citing  Wutscher and Maxwell  (1969) , (Exhibit  MEX-132)); 
ARP-006-2016, (Exhibit  MEX-85), pp. 16-17 (citing  Wutscher and Maxwell  (1969) , (Exhibit  MEX-132)). 
2195 ARP-002-2017, (Exhibit MEX -84), p. 36; ARP -006-2016, (Exhibit MEX -85), p. 17.  
2196 ARP-002-2017, (Exhibit  MEX-84), p. 36 (citing  Spalding et al. (1976),  (Exhibit  MEX-133));  
ARP-006-2016, (Exhibit  MEX-85), p. 17 (citing  Spalding et al. (1976),  (Exhibit  MEX-133)). 
2197 Wutscher and Maxwell  (1969),  (Exhibit MEX -132). 
2198 Spalding et al. (1976), (Exhibit MEX -133). 
2199 Spalding et al. (1976), (Exhibit MEX -133), p. 258.  
2200 Ricardo Flores Pedauyé's response s to Panel questions Nos. 49 and 50 for the experts.  
2201 Appellate Body Reports, US/Canada – Continued suspension , para. 592.  WT/DS524/R  
- 308 - 
  Probability of pest surviving existing pest management procedures  
7.1229.   The thir d factor considered by Reports ARP -002-2017 and ARP -006-2016 is the probability 
of the pest surviving existing pest management procedures. This probability was determined to be 
high, after considering the probabilities of the following two elements as high : (i) the probability that 
the pest could survive post -harvest treatments; and (ii)  the probability that the pest is not detected 
at the entry point.  
7.1230.   Mexico  asserts that Costa  Rica failed to correctly evaluate the probability of the pest 
surviving existing  pest management, cultural, and commercial procedures applied in Mexico; that 
the PRAs do not consider that methods of detecting ASBVd exist; and that Costa  Rica failed to 
consider scientific evidence that would support the high probability of ASBVd surviv ing the 
procedures for the importation of fresh avocados for consumption from Mexico.2202 
7.1231.   Costa  Rica notes that Mexico does not subject ASBVd to any specific regulations. 
Costa  Rica contends that it took into account that the symptomatic fruits are discarded  during 
post-harvest operations, however, the symptomless ones are not detected by packing staff or 
machines, and are shipped together with pest -free fruit. Costa  Rica states that specific tests must 
be carried out to detect these asymptomatic strains.2203 Costa  Rica adds that, precisely because 
there are methods of detecting ASBVd in symptomless fruit, and Costa  Rica is in a position to 
implement the most effective and rapid technique in this regard (the RT -PCR technique), the country 
limits the import requ irements for avocados from countries where ASBVd is present to only 
compliance with a bilateral systems approach programme or to the certification of consignments or 
pest-free places of production, and to verification upon arrival through random sampling a nd 
laboratory testing. Costa  Rica notes that, based on scientific evidence relating to the existence of 
symptomless fruit, it reached a reasonable and objective conclusion that the probability that ASBVd 
is not detected during visual inspection is high.2204 
7.1232.   As regards the probability that the pest could survive post -harvest treatments , the Panel  
observes that Reports ARP -002-2017 and ARP -006-2016 indicate that "[p]ost -harvest management 
has no effect on controlling the pest (Ploetz et al. 2011)."2205 Ploetz et al. (2011) is provided as a 
source, but there is no support for this assertion  in the source cited. Reports  ARP-002-2017 and 
ARP-006-2016 state that "[s]ymptomatic fruit are discarded during post -harvest operations, 
however, the symptomless ones are not d etected by packing staff or machines and are shipped 
together with pest -free fruit" (Dorantes et al. 2004) (Technical Report ARP -025, 2015)."2206 It is not 
explained, however, how the assertion that symptomatic fruit are discarded during post -harvest 
operati ons was taken into consideration for the assessment  of the probability, which was deemed to 
be high.  
7.1233.   Regarding Mexico's argument that ASBVd detection methods were not considered, the 
Panel notes that Reports ARP -002-2017 and ARP -006-2016 mention specific evidence for the 
detection of ASBVd, referring to Schnell et al. (1997) under the point on the probability that the pest 
is not detected at the entry point.2207 
Probability of transfer to a suitable host  
7.1234.   The fourth factor considered by Reports ARP -002-2017 and ARP-006-2016 is the probability 
of transfer to a suitable host. This probability was determined to be high, after considering the 
following six elements: (i)  the dispersal mechanisms, including vectors to allow movement from the 
 
2202 Mexico's first written submission, paras.  305-306. 
2203 Costa Rica's first written submission, para. 5.116 (citing SINAVEF, Update of the inventory list 
(2010), (Exhibit CRI -13); Vallejo Pérez et al. (2017) , (Exhibit MEX -47), p. 119; and Schnell et al. (1997) , 
(Exhibit  MEX-68)). 
2204 Costa Rica's first written submission, para. 5.117.  
2205 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 17 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2206 ARP-002-2017, (Exhibit MEX -84), p. 36 (citing Dorantes et al. (2004), (Exhibit CRI -117); and 
Report  025-2015-ARP-SFE (2015), (Exhibit MEX -138)); ARP -006-2016, (Exhibit MEX -85), p. 17 (citing 
Dorantes  et al. (2004), (Exhibit CRI -117); and Report 025 -2015-ARP-SFE (2015), (Exhibit MEX -138)). 
2207 ARP-002-2017, (Exhibit MEX -84), pp. 36 -37 (citing Schnell et al. (2001), (Exhibit CRI -131); and 
Schnell  et al. (1997), (Exhibit MEX -68)); ARP -006-2016, (Exhibit MEX -85), p. 17 (citing Schnell et al. (2001), 
(Exhibit  CRI-131); and Schnell et al. (1997), (Exhibit MEX -68)).  WT/DS524/R  
- 309 - 
  pathway to a suitable host; (ii)  whether the imported commodity is to be sent to a few or many 
destination points in the PRA area; (iii)  the proximity of entry, transit and destination points to 
suitable hosts; (iv)  the time of the year at which import takes  place; (v)  the intended use of the 
commodity; and (vi) the risks from by -products and waste.  
7.1235.   The probability related to dispersal mechanisms, including vectors to allow movement from 
the pathway to a suitable host and the probability related to the intend ed use of the commodity 
were deemed to be medium. Those deemed to be high were the probability related to whether the 
imported commodity is to be sent to a few or many destination points in the PRA area; the probability 
related to the proximity of entry, t ransit and destination points to suitable hosts; the probability 
related to the time of the year at which import takes place; and the probability related to the risks 
from by -products and waste.  
7.1236.   Mexico  contends that Costa  Rica failed to correctly evaluate the probability of transfer to 
a suitable host because it failed to justify with scientific evidence the information demonstrating the 
existence of dispersal mechanisms from the pathway of fresh avocados imported for consumption 
from Mexico to other suitab le hosts; the destination points of fresh avocados for consumption 
imported from Mexico; the probability of fresh avocados for consumption from Mexico being located 
at entry, transit and destination points of host species; and the probability of germinatio n of the 
seeds of fresh avocados imported for consumption that have been discarded after consumption.2208 
According to Mexico, Costa  Rica should have determined the probability that ASBVd would enter its 
territory and move from the pathway of fresh fruit for  consumption from Mexico to a suitable host, 
leading to the establishment and spread of ASBVd and its disease.2209 
7.1237.   Costa  Rica states that it followed the guidelines in the manual, which are based on 
ISPM No. 11, and separately considered the six factors2210 that the international standard 
recommends be taken into account.2211 Costa  Rica contends that it identified that the dispersal 
mechanism of ASBVd after the importation of avocados from countries where the pest is present is 
through growing a plant  from the seed of symptomless fruit which, upon germination, will produce 
a plant infected with ASBVd. Costa  Rica notes that there is a risk that the seed will eventually 
germinate naturally or because it is planted intentionally by the consumer2212, and tha t the risk of 
natural germination increases due to the flaws in waste management, as the skins and seeds are 
usually discarded in any location without further control.2213 For Costa  Rica, because the fruits 
infected with ASBVd contain a viable seed, there is  an undeniable risk of the pest being introduced 
if that seed germinates.2214 Costa  Rica asserts that the scientific literature agrees that the 
transmission of ASBVd by seed is very high in the case of seeds from symptomless fruit, even 
reaching 100%.2215 Costa Rica is of the view that the germination of a seed of a symptomless 
avocado would therefore introduce the pest into its territory.2216 
7.1238.   The Panel  notes that with regard to the first element, i.e. the dispersal mechanisms, 
including vectors to allow movement  from the pathway to a suitable host , it is indicated 
in Reports  ARP-002-2017 and ARP -006-2016 that, inter alia , "[t]he dispersal mechanisms from the 
pathway to a host are through growing a plant from the seed of symptomless fruit, because the pest 
is syst emic in the tissue (Ploetz et al. 2011)."2217 Report ARP -002-2017 adds that "[t]he generation 
of rootstock from fruit from infected trees (including from the Hass cultivar) can significantly increase 
the incidence of ASBVd (Vallejo et al. 2017)."2218 Respected scientific sources (Ploetz et al. (2011) 
and Vallejo et al. (2017)) are cited, and information can be found in these sources that could support 
 
2208 Mexico's first written submission, paras.  307-309. 
2209 Mexico's first written submission, paras.  276-277. 
2210 The Panel notes that it refers to these factors as "elements" throughout its analysis.  
2211 Costa Rica's first written submission, para. 5.118.  
2212 Costa Rica's first written submission, para. 5.119.  
2213 Costa Rica's first written submission, para. 5.120 (citing  Ministry of Health of Costa Rica, 
Waste  Management (2011), (Exhibit CRI -28), p. 16); second written submission, para. 3.32.  
2214 Costa Rica's first written submission, para. 5.120.  
2215 Costa Rica's second written submission, para. 3.35 (citing Vargas et al. (1991), (Exhibit CRI -137); 
Hadidi  et al. (2003), (Exhibit CRI -121); and S. Ochoa Ascencio,  "Sunblotch o Mancha del Sol del Aguacate", 
Facultad de Agrobiología "Presidente Juárez", Universidad de San Nicolás de Hidalgo (UMSNH), Uruapan, 
Michoacán, México (201 3) (Ochoa Ascencio (2013) ), (Exhibit CRI -128)). 
2216 Costa Rica's second written submission, para. 3.35.  
2217 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 18 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2218 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Vallejo Pérez et al. (2017) , (Exhibit MEX -47)). WT/DS524/R  
- 310 - 
  the assertion s in the reports. The Panel also notes that the experts consulted 
(Fernando  Pliego  Alfaro, Ricardo Flores Pedauyé and Pablo Cortese) agree that a high percentage of 
seeds from symptomless trees are infected.2219 However, the reports do not substantiate or expl ain 
the connection between the assertion that the dispersal mechanisms from the pathway to a host are 
through growing a plant from the seed of symptomless fruit and the assertion  that the pest is 
systemic in the tissue.  
7.1239.   Regarding the assertion  that the gen eration of rootstock from fruit from infected trees 
(including those of  the Hass cultivar) can significantly increase the incidence of ASBVd, this 
statement  is found in the cited source, but this source refers specifically to nurseries.2220 It is not 
explain ed in  Costa  Rica's risk assessments why the assertion  on the significant increase in the 
incidence of ASBVd is used in the context of a fruit imported for consumption, when the statement 
in the source refers to plants in nurseries, where the magnitude  of the spread  would be different. 
This is because the purpose of a nursery is the production of plants. The section on this element 
does not substantiate or explain the generation of rootstock from the seed of fruit imported for 
consumption, which is an issue  related to the matter of diversion from intended use that the Panel 
analysed in detail in section  7.4.5.3.3  above.  
7.1240.   Turning to the second element, i.e. whether the i mported commodity is to be sent to a few 
or many destination points in the PRA area , Reports ARP -002-2017 and ARP -006-2016 states, 
without providing details or evidence, that "[t]he imported avocados are sent to many destination 
points, distributed across the country for retail sale in supermarket chains, by street vendors and at 
farmers' markets."2221 
7.1241.   With respect to the third element, i.e. the proximity of entry, transit and destination points 
to suitable hosts , Report ARP -002-2017 indicates that the host species ( Persea americana  Mill.) 
is found throughout the country, close to the entry, transit and final destination points2222; that the 
West Indian races tend to grow naturally on the Pacific lowlands, from Guatemala to Costa  Rica2223; 
that the avocado is native2224 to Costa  Rica; and that avocado, both wild and cultivated, is in all regions 
of the country.2225 Report ARP -006-2016 includes the same assertion s, other than the assertion  that 
the West Indian races tend to grow naturally in the Pacific l owlands, from Guatemala to Costa  Rica.2226 
The assertion  that "[t]he host species ( Persea americana Mill.) is found throughout the country, close 
to the entry, transit and final destination points (Garbanzo 2011)"2227 is attributed to a source that 
does not co ntain this statement. The assertion  that the avocado is in all regions of the country is also 
not supported by evidence. A high probability is assigned to this element, which, according to 
Manual  NR-ARP-PO-01_M -01, is given  when it is highly likely that th ere are host species relatively 
close to the entry, transit or final destination points. However, Manual NR -ARP-PO-01_M -01 does not 
provide more guidance on this descriptor, and Reports ARP -002-2017 and  ARP-006-2016 do not 
adequately explain or document why it was considered that there is a high probability.  
7.1242.   On the fourth element, i.e. the time of year at which import takes place , 
Reports  ARP-002-2017 and ARP -006-2016 indicate that imports take place all year round.2228 The 
Panel notes that there i s a lack of analysis of the matter, including considerations of how many  
avocados enter during the various periods of the year.  
7.1243.   With respect to the fifth element, i.e. the intended use of the commodity , the probability 
was deemed to be medium , after it was  determined that its use is consumption.2229 According to 
Manual NR -ARP-PO-01_M -01, medium  probability is assigned to this point if the intended use of the 
 
2219 Responses of Fernando Pliego Alfaro, Ricardo Flores Pedauyé and Pablo Cortese to Panel 
question  No. 4 0(a) for the experts.  
2220 Vallejo Pérez et al. (2017), (Exhibit MEX -47), p. 120.  
2221 ARP-002-2017, (Exhibit MEX -84), p. 37; ARP -006-2016, (Exhibit MEX -85), p. 18.  
2222 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Garbanzo Solís (2011),  (Exhibit MEX -125)). 
2223 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Storey  et al. (1986), (Exhibit  CRI-135)). 
2224 ARP-002-2017, (Exhibit MEX -84), p. 37 (citing Galindo Tovar et al. (2008), (Exhibit MEX -22)). 
2225 ARP-002-2017, (Exhibit MEX -84), p. 37.  
2226 ARP-006-2016, (Exhibit MEX -85), p. 18.  
2227 ARP-002-2017, (Exhibit MEX -84), p. 37.  
2228 ARP-002-2017, (Exhibit MEX -84), pp. 37 -38 (citing SFE, Avocado import statistics 2015 -2017 
(2019), (Exhibit  CRI-140)); ARP -006-2016, (Exhibit MEX -85), p. 18 (citing SFE, Avo cado import statistics 
2015-2017 (2019), (Exhibit CRI -140)). 
2229 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 18.  WT/DS524/R  
- 311 - 
  commodity is consumption. Despite the fact that, throughout the risk assessment, the risk analyst 
assumes that the seed of fruit for consumption will be diverted from its intended use, this element 
is automatically assigned a medium  probability, in line with the manual, and no explanation is given 
regarding the diversion from intended use.  
7.1244.   Turning to the s ixth element, i.e. the risks from by -products and waste , 
Reports  ARP-002-2017 and ARP -006-2016 indicate that the waste of fresh avocado  fruit are the 
skins and seeds; that, as it contains a viable seed, there is a risk of pest introduction through the 
waste2230; and that the germination of a seed from a symptomless fruit would introduce the pest 
into the PRA area.2231 
7.1245.   The reports cite Ploetz et al. (2011) when asserting that the germination of a seed from a 
symptomless fruit would introduce the pest into the PRA area. Ploetz et al. does not make any 
statements on the introduction of ASBVd into an area.  
7.1246.   Costa  Rica has said during the proceedings that , as the fruits infected with ASBVd contain 
a viable seed, there is an undeniable risk of the pest being introduced if that seed germinates.2232 
Costa  Rica asserts that the scientific literature agrees that the transmission of ASBVd by seed is very 
high in t he case of seeds from symptomless fruit, even reaching 100%.2233 The Panel notes that 
Ploetz et al.  (2011) states that the transmission of ASBVd occurs at much higher frequency 
(80-100%) in symptomless infected trees2234, but Reports ARP -002-2017 and ARP -006-2016 do not 
include this assertion under the element relating to the risks from by -products and waste. In a 
section entitled "spread", the datasheet for Reports ARP -002-2017 and ARP -006-2016 also indicates 
that transmission through the seed of symptomless f ruit is very high (95%), according to Hadidi 
et al. (2003).2235 However, under the element on the risks from by -products and waste, there is no 
reference to the datasheet or to  Hadidi et al. (2003), nor is  this statement in particular  included . 
The Panel notes that there is no explanation under this element that associates the high degree of 
transmission through symptomless seeds with the introduction of ASBVd in the PRA area as noted 
by Costa  Rica during t he proceedings.  In view of the above, the considerations that led the risk 
assessor to conclude a "high" probability are unclear . 
7.1247.   The Panel notes that this element of risks from by -products and waste is linked to the 
diversion from intended use and the spo ntaneous germination that Costa  Rica alleges exist . The 
Panel has analysed these cross -cutting matters in section 7.4.5.3.3  above.  
7.1248.   In addition, this element is assign ed a high probability, which, according to 
Manual  NR-ARP-PO-01_M -01, is given where there is a high risk from by -products and waste. The 
expert Robert Griffin considers that the point regarding by -products and waste is confusing in 
Costa  Rica's PRA Guideli nes, because the criteria use their own descriptors as criteria rather than 
providing metrics (high risk=high risk, medium risk=medium risk, low risk=small risk, and 
insignificant risk=very small risk). Mr  Griffin adds that these criteria are not completel y arbitrary 
because they are at least relative, but not transparent, and it is not possible to determine the 
meaning of "high probability 3" because the criteria used to derive this result provide no means to 
be measured or ranked.2236 
7.1249.   In light of Mr Griffin 's response, the Panel notes that this element is guided by the descriptor 
in Manual NR -ARP-PO-01_M -01 corresponding to the probability assigned to this factor, without 
further explanation; in other words, a "high" probability is indicated where there is a high risk from 
by-products and waste; " medium " probability where there is some risk from by -products and waste; 
and "low" probability where there is little risk from by -products and waste.2237 
Manual  NR-ARP-PO-01_M -01 does not provide more guidance on thes e descriptors, and 
 
2230 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 18.  
2231 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz  et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), pp. 18 -19 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2232 Costa Rica's first written submission, para. 5.120.  
2233 Costa Rica's second written submission, para. 3.35 (citing Vargas et al. (1991), (Exhibit CRI -137); 
Hadidi  et al. (2003), (Exhibit CRI -121); and Ochoa Ascencio (2013), (Exhibit CRI -128)). 
2234 Ploetz et al. (2011), (Exhibit MEX -56), p. 6.  
2235 ARP-002-2017, (Exhibit MEX -84), pp. 62 -63 (citing Hadidi et al. (2003), (Exhibit CRI -121)); 
ARP-006-2016, (Exhibit MEX -85), pp. 46 -47 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
2236 Robert Griffin's response to Panel question No. 112 for the experts.  
2237 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 13.  WT/DS524/R  
- 312 - 
  Reports  ARP-002-2017 and ARP -006-2016 do not adequately explain or document why it was 
considered that there is a high risk from by -products and waste.  
7.1250.   In the Panel's view, the criteria's lack of transparency combined with the lack of 
explanations and documentation in the reports reduce the objectivity of this element in the reports.  
Additional arguments of the parties that refer generally to the likelihood  of entry of ASBVd  
7.1251.   Mexico  adds that, had Costa Rica considered information about the conditions and events 
that occur along the pathway of fresh avocados for consumption, it would have found that the 
likelihood  of entry is negligible or zero, owing to: (i)  the certification and in spection programmes for 
orchards, transporters and pack ing facilities2238; (ii) regulations concerning the certification of seeds 
for propagation2239; (iii) the recalcitrant nature of the seeds; (iv)  the pest transmission mechanisms; 
and (v)  the processes and instruments that reduce the likelihood  of symptomatic and asymptomatic 
fruit being exported.2240 
7.1252.   The Panel  notes that Mexico has maintained throughout the dispute that the risk of entry 
and, by extension, establishment and spread of ASBVd by the pathway of  fresh avocados for 
consumption from Mexico is negligible or zero. However, the Panel observes that its task is to 
determine whether Costa Rica's risk assessment is objectively justifiable by examining whether its 
conclusions find sufficien t support in the  scientific evidence. In this regard, the Panel's task is not to 
impose a definitive scientific conclusion with respect to the likelihood  of entry, establishment and 
spread, or with respect to the associated biological consequences, as sugg ested by Mexico.  
7.1253.   Moreover, the Panel has already examined some of the elements highlighted by Mexico in 
its analysis of Reports ARP -002-2017 and ARP -006-2016. 
7.1254.   Costa Rica  contends that it concluded that avocado fruit (and their seeds) is a high -risk 
entry p athway for ASBVd, which is the same conclusion reached in the recent study by Everett and 
Siebert (2018), who observe that New  Zealand  only imports fresh avocados from areas free 
of ASBVd, yet this pathway remains a risk.2241 
7.1255.   Mexico  asserts that the study by  Everett and Siebert (2018) does not rate the risk of 
transmission through the pathway of importing symptomless fruit, but expresses concern related to 
the importation of ASBVd through symptomless plants or seeds. According to Mexico, Costa  Rica 
fails to d istinguish between the risk of entry of ASBVd by means of fresh avocado imported for 
consumption and the risk stemming from the importation of propagati on material.2242 
7.1256.   The Panel  notes that the study by Everett and Siebert (2018) speaks of the risk of 
establ ishment of ASBVd in New  Zealand  and the particular concern of its possible importation in fruit 
from symptomless plants or seeds, but does not constitute a PRA or an assessment of probabilities. 
The Panel does not consider that the source confirms the conc lusion reached by Costa  Rica that 
there is a high risk of entry of ASBVd.  
7.1257.   Regarding the comparison that Costa Rica draws between its situation and that of 
New Zealand, Mexico  also contends that Costa Rica's PRA addresses the applicability of 
New Zealand 's regulations in a single paragraph, and does not explain or provide evidence to 
substantiate why New  Zealand's circumstances are applicable to Costa Rica, other than pointing out 
that both countries are free of the pest. Mexico adds that the PRA does not indicate which pathways 
 
2238 Mexico's second written submission, para. 116 ( citing  Asociación de Productores y Empacadores 
Exportadores de Aguacate de México (APEAM), Manual de Cosecha Aguacate Hass (2014), (Exhibit  MEX-25); 
SFA, Crops monograph  (2011), (Exhibit  MEX-24), p. 10; and Mexico, Regulatory framework related to the 
avocado industry in Mexico (2019) , (Exhibit MEX-126)). 
2239 Mexico's second written submission, para. 116 ( citing  Secretaría de Agricultura, Ganadería, 
Desarrollo Rural, Pesca y Alimentación (SAGARPA), Servicio Nacional de Inspección y de Certificación de 
Semillas (SNICS), Regla para la calificación de semilla de aguacate ( Persea americana  Mill.) (2014), 
(Exhibit  MEX-206)). 
2240 Mexico's second written submission, para. 116.  
2241 Costa Rica's first written submission, para. 5.95 (citing Everett and Siebert (2018), (Exhibit CRI -27), 
p. 33); response to Panel question No. 101, para. 4 (citing Everett and Siebert (2018), (Exhibit CRI -27), p. 
33). 
2242 Mexico's second written submission, para. 120.  WT/DS524/R  
- 313 - 
  are analysed in these regulations, why the regulations are valid or whether th e circumstances that 
gave rise to them in 1998 were different, and takes into consideration only the conclusions addressed 
in New  Zealand's regulations but fails to analyse the corresponding PRA that served as the basis for 
them.2243 According to Mexico, Cos ta Rica could not have had access to New  Zealand 's PRA, therefore 
it took into account only the mitigation measures that resulted from it.2244 
7.1258.   Costa Rica , for its part , maintains that it checked whether there are rules concerning 
avocado fruit in other count ries with a similar phytosanitary status (i.e. free of ASBVd) to Costa Rica. 
According to Costa Rica, previous risk assessments were taken into account and, for example, 
New Zealand's regulations on the importation of fresh avocados for human consumption f rom 
Australia were considered as an input.2245 
7.1259.   The Panel  observes that, at the initiation stage, Reports  ARP-002-2017 and ARP -006-2016 
cite only New  Zealand 's requirements for fresh fruit and vegetables, and contain no reference to the 
risk assessment on whi ch these requirements are based.2246 Costa Rica did not submit the risk 
assessment together with the reports' bibliography, therefore the Panel has no knowledge of that 
assessment. The Panel considers that Costa Rica's reports used New  Zealand 's regulations as an 
input but do not contain a comparative and substantiated analysis of the situation in Costa Rica and 
that in New  Zealand, and this constitutes  a flaw in these reports.  
Additional issue concerning the calculation of the probability of entry of ASBVd i n 
Reports  ARP-002-2017 and ARP -006-2016  
7.1260.   Having examined in detail the various factors and elements considered in Reports  ARP-002-
2017 and ARP -006-2016 to determine the probability of entry of ASBVd in Costa Rica, the Panel  
wishes to note a general flaw in the assessment  of the probability of entry in those reports. 
Costa  Rica treats all the considerations at this stage of the risk assessment as factors and elements 
to each of which it assigns a numerical probability expressed in "points" that are added toge ther at 
the end to obtain, as a final outcome, a cumulative probability, as indicated in the reports 
themselves.2247 However, this fails to consider that some of the events along the pathway may not 
happen.  
7.1261.   In this regard,  the expert  Robert Griffin states that the sum of values for the probability of 
introduction is problematic, because the probability of introduction is the result of a series of 
conditions and events that have a multiplicative relationship, i.e. if the probability of  any event or 
condition in the series of events assessed for the probability of introduction is zero (or negligible), 
then the result is zero (no introduction). For Mr Griffin, the point is less of a PRA process question 
and more of a question of mathemati cal convention, since the numerical labels that are applied to 
qualitative ratings should represent an actual value in some identified units to create the possibility 
for mathematical operations, and those operations should represent legitimate mathematica l 
relationships. Mr Griffin concludes that the PRA methodology used by Costa Rica is technically flawed 
in this respect, although it may not substantially change the result.2248 
7.1262.   In light of the foregoing, in the Panel's view, a flaw in Reports  ARP-002-2017 
and ARP-006-2016 is that Costa Rica failed to consider the multiplicative relationship that exists 
between the conditions and events on which the introduction of the pest depends (i.e. its entry 
and establishment). This flaw stems from the application of Ma nual NR -ARP-PO-01_M -01. 
Conclusion on the likelihood  of entry  
7.1263.   Having analysed the various factors and elements considered in Reports ARP -002-2017 
and ARP-006-2016 to determine the probability of entry of ASBVd in Costa Rica, the Panel concludes 
that there are the following flaws: 
 
2243 Mexico's first written submission, para. 180.  
2244 Mexico's second written submission, para. 91.  
2245 Costa Rica's first written submission, para. 5.90.  
2246 ARP-002-2017, p. 14 (citing MAF, New  Zealand 's requirements (1998), (Exhibit CRI -25)); 
ARP-006-2016 (citing MAF, New  Zealand 's requirements (1998), (Exhibit CRI -25)). 
2247 ARP-002-2017, (Exhibit MEX -84), p. 38; ARP -006-2016, (Exhibit MEX -85), p. 19.  
2248 Robert Griffin's response to Panel question No. 90 for the experts.  WT/DS524/R  
- 314 - 
  a. Regarding the scientific basis:  
i. there are a number of assertions that do not find support in the scientific evidence;  
ii. there are a number of assertions that refer to a source, but that source does not 
support those assertions, or does so only partially; and  
iii. there is insufficient scientific evidence concerning diversion from intended use and 
spontaneous germination.  
b. Regarding the risk assessor's reasoning:  
i. no explanations are given for  how the evidence provided at dif ferent points in the 
analysis relates to the conclusions for each probability;  
ii. no explanations are given for  how some of the conclusions at different points in the 
analysis correspond to the criteria in Manual NR -ARP-PO-01_M -01, the methodology 
of which is  used; and  
iii. the same probability descriptor that appears in Manual NR -ARP-PO-01_M -01 for pests 
in general is used to justify the probability assigned to some of the elements, without 
it being adapted to the case of ASBVd and without any explanation being gi ven. 
7.1264.   Moreover, Reports ARP -002-2017 and ARP -006-2016 do not consider the multiplicative 
relationship that exists between the conditions and events necessary for the entry of ASBVd 
in Costa  Rica. 
7.1265.   The Panel considers that the result of assigning risk values,  whether high, medium , or low, 
with their respective numerical values (3, 2, or 1), to the various factors and elements, on several 
occasions without the necessary scientific basis, without sufficient reasoned explanations by the risk 
assessor, and without  considering the multiplicative relationship that exists between the conditions 
and events necessary for the entry of ASBVd, cannot be considered an objectively justifiable 
qualitative assessment of the likelihood  of entry of ASBVd in Costa Rica's territor y. 
7.4.5.3.4.2   Evaluation of the likelihood of establishment  
7.1266.   Mexico  contends that, because Costa Rica's assertions lack any scientific basis and there 
is insufficient scientific evidence to demonstrate that there is a likelihood  of establishment of ASBVd 
and its disease, Costa Rica's PRAs did not evaluate the likelihood  of establishment on the basis of 
the SPS  Agreement.2249 
7.1267.   Mexico also contends that Costa Rica's PRAs do not evaluate the probability of 
establishment associated with all the pathways for transmitting ASBVd, and simply make 
unsubstantiated claims about the risk  arising from the diversion from intended use of the pits of 
avocados imported for consumption.2250 For Mexico, the scientific evidence and studies on which 
Costa Rica bases its risk assessment do not support the conclusion that there is a medium  probability  
of establishment of ASBVd in its territory.2251 
7.1268.   Mexico asserts that Costa Rica did not base its risk assessments on a specific evaluation of 
the probability of establishment of ASBVd through the pathway of avocados imported for 
consumption, since the PRAs d o not envisage a methodology for calculating the incidence  of 
instances in which the pit of a fresh imported avocado effectively germinates and produces an 
avocado tree, and the percentage of germinated trees with ASBVd.2252 Mexico maintains that Costa 
Rica should have calculated, in a systematic and reasoned manner, the situations that it considered 
 
2249 Mexico's first written submission, para. 344; second written submission, para. 145.  
2250 Mexico's first written submission, para. 315.  
2251 Mexic o's second written submission, para. 129.  
2252 Mexico's first written submission, para. 315. WT/DS524/R  
- 315 - 
  to be favourable and possible in which ASBVd could become established in its territory as a result of 
the importation of fresh avocados for consumption from Mexi co.2253 
7.1269.   Mexico adds that, although Costa Rica submitted evidence in its PRAs with respect to factors 
such as the availability of appropriate hosts and suitability of environment, this alone does not make 
it possible to conduct a correct and complete evaluati on of the likelihood of establishment of ASBVd 
in Costa Rica.2254 In Mexico's view, the evaluation is incomplete, as Costa Rica considered only some 
of the factors listed in ISPM No.  11, and failed to provide sufficient scientific evidence about these 
and ot her determining factors such as: the life stages and survival rates of ASBVd, the seed's 
recalcitrant nature and loss of viability during transport of the fruit, and the areas where the pest is 
present. Nor did it provide expert assessments of the probabil ity of establishment of ASBVd 
in Costa  Rica in relation to the pathway of importation of fresh avocados for consumption from 
Mexico.2255 
7.1270.   Mexico submits that, in the section of the PRA on cultivation practices  and control measures, 
Costa Rica made erroneous a ssertions regarding the absence of means of control, and assertions 
based on unreliable statistical sources concerning the cultural practices of Costa Rican producers. 
Mexico contends that the source referred to by Costa Rica in the PRAs, CONSULSANTOS (201 0), 
does not contain evidence or justification for the assertions included in the PRA, and is not 
representative of Costa Rica.2256 
7.1271.   For Mexico, Costa Rica's justification for diversion from intended use is not supported by 
scientific evidence that considers the importation of fresh avocados for consumption from Mexico as 
a pathway for the transmission of ASBVd and its disease.2257 
7.1272.   Mexico states that the establishment of ASBVd is directly related to the risk of germination 
of pits obtained from avocado s originally imported for consumption, and that Costa Rica's PRAs point 
to two risk scenarios associated with this pathway: (i) diversion from intended use due to cultural 
practices; and (ii)  the spontaneous germination of waste.2258 
7.1273.   Regarding diversion from intended use, Mexico submits that Costa Rica based its analysis 
on conjecture stemming from the review of scientific articles that are not specifically related to an 
analysis of the probability of establishment of ASBVd through the pathway o f fresh avocados 
imported for consumption, and fails to analyse why it applied that reasoning.2259 
7.1274.   Mexico adds that Costa Rica's risk argument is apparently supported by the possibility, but 
not probability, that Costa Rica imports symptomless avocados for c onsumption, and that a diversion 
from the original use of the seeds could lead to the entry, establishment and spread of ASBVd in its 
territory. According to Mexico, Costa Rica should have relied on a scientific methodology to reach 
the conclusion that div ersion from intended use constitutes sufficient grounds for determining that 
there is a high risk of the spread of ASBVd and its disease.2260 
7.1275.   Mexico also submits that, based  on section 2.2.2.4 of ISPM No.  11, Costa Rica should have 
considered the characteris tics of the seeds, particularly their recalcitrant nature and the impact of 
this on their viability for germination in a manner such that they could transmit the disease.2261 
7.1276.   Mexico contends that Costa Rica assumes that the entire shipment of fresh imported 
avocados would be contaminated with ASBVd, and that all the seeds would germinate into plants 
that would be used as propagati on material or as avocado -producing trees.2262 In Mexico's view, 
Costa  Rica should have calculated, in a systematic and reasoned mann er, the incidence  of possible 
favourable instances  in which ASBVd could become established as a result of the diversion from 
 
2253 Mexico's first written submission,  para. 274. 
2254 Mexico's first written submission,  paras.  320-321. 
2255 Mexico's first written submission,  para. 322. 
2256 Mexico's first written submission,  para. 323. 
2257 Mexico's first written submission, para. 324 (citing IPPC Secretariat , "Diversion from intended  use" 
(2016), (Exhibit MEX -124)). 
2258 Mexico's second written submission, para. 129.  
2259 Mexico's second written subm ission, para. 130.  
2260 Mexico's first written submission, paras.  329–332. 
2261 Mexico's first written submission,  para. 333.  
2262 Mexico's first written submission,  para. 316.  WT/DS524/R  
- 316 - 
  intended use of the seeds of fresh avocados for consumption from Mexico, a calculation that should 
have been made on the basis of s ection 2.2.2 of ISPM No.  11.2263 Mexico adds that Costa Rica should 
have evaluated the specific probability of the incidence  of instances of diversion from intended use 
of the pits of avocados imported for consumption, which is precisely the cause of its con cern, but it 
did not.2264 
7.1277.   Mexico states that, although Costa Rica asserts in its PRAs that diversion from intended use 
was considered, in a section entitled "uncertainty" it indicates that there are no statistics available 
on the quantity of imported fruit from which the seed is extracted for propagation purposes.2265 
For Mexico, Costa Rica is seeking to justify its measures on the grounds of the absence of information 
and a simple hypothesis2266, when no objective analysis and assessment have been carried  out of 
how a fresh avocado destined for human consumption could end up having its seed sown by a  
Costa  Rican producer. In Mexico's view, Costa Rica fails to address each and every step that the pit 
of a fresh avocado imported for consumption would have to  go through.2267 Mexico asserts 
that Costa  Rica should have carried out an analysis and evaluation of the pathways followed by 
avocados imported for human consumption and examined how the pit would follow the pathway that 
it is concerned about; in other word s, ending up on a farm, where it would be prepared and sown, 
and germinate so that it could be used as rootstock.2268 
7.1278.   For Mexico, the Panel should consider that: (i)  Mexico exports fresh avocados for 
consumption, not seeds for propagation; (ii)  not all consi gnments from Mexico can be considered 
carriers of ASBVd, nor are they intended for propagation purposes; (iii)  the fruit exported from 
Mexico is free of symptom s; (iv) fresh avocados entering Costa Rica would first reach areas with the 
highest population d ensity, and the regions with the largest avocado production areas account for 
only 15% of the population; and (v)  after consumption, it would have to be determined how many 
pits are discarded outdoors or used for sowing.2269 
7.1279.   Mexico submits that Costa Rica is  shifting the burden of diversion from intended use to the 
exporting country, yet the IPPC document Diversion from intended use (2016) indicates that the 
responsibility for diversion from intended use, and its consequences, falls to the NPPO of the 
importi ng country.2270 In Mexico's view, Costa Rica cannot attribute all the risk to the importation of 
fresh fruit. Rather, it should also have established local risk management measures adapted to the 
transmission characteristics of ASBVd. Mexico asserts that Cos ta Rica also failed to consider the 
steps taken by Mexico to restrict the exportation of avocados with symptoms of ASBVd, and other 
practices that could enable the detection of asymptomatic trees, such as the continuous surveillance  
of orchards.2271 
7.1280.   Mexico a dds that the germination of an avocado pit does not necessarily imply that the 
resulting plant will be infected with ASBVd, which Mexico claims is corroborated by an experiment 
carried out by Dr Daniel Téliz in 2015 and confirmed by Dr Salvador Ochoa Ascen cio, who cites 
Wallace and Drake (1962) in this regard.2272 
7.1281.   Mexico submits that assuming arguendo  that there was any likelihood of entry of 
asymptomatic fruit from Mexico, Costa Rica could now eliminate the risk of diversion from intended 
 
2263 Mexico's first written submission,  paras.  317–319. 
2264 Mexico's opening statement at the  first meeting of the Panel, para. 41.  
2265 Mexico's opening statement at the first meeting of the Panel, para. 42 (citing 
Corrigenda  ARP-002-2017 (2019), (Exhibit MEX -131)). 
2266 Mexico's opening statement at the first meeting of the Panel, para. 42.  
2267 Mexico's opening statement at the first meeting of the Panel, paras.  42–44. 
2268 Mexico's opening statement at the first meeting of the Panel, paras.  48–50. 
2269 Mexico's opening statemen t at the first meeting of the Panel, paras.  45–46. 
2270 Mexico's first written submission, paras.  325–326 ( citing IPPC Secretariat , Diversion from 
intended  use (2016), (Exhibit MEX -124)). 
2271 Mexico's first written submission, para. 336.  
2272 Mexico's second writt en submission, para. 133 ( citing  D. Téliz, Información sobre el viroide de la 
mancha de sol del aguacate (2015)  (Téliz (2015)) , (Exhibit  MEX-172); and Affidavit of 
Salvador  Ochoa  Ascencio  (2020) , (Exhibit  MEX-222)). WT/DS524/R  
- 317 - 
  use by publishing D ecree No.  41995 -MAG, which regulates the use, for propagation purposes, of 
avocado seeds from fresh fruit imported for consumption from countries where ASBVd is present.2273 
7.1282.   With regard to the spontaneous germination of seeds, Mexico argues that, since the 
proposed use of the fruit is human consumption and not planting, the waste will primarily be 
discarded in household bins and then at waste disposal sites, in most cases far from any susceptible 
hosts.2274 
7.1283.   Mexico asserts that there is no evidence of a ris k of germination of a pit obtained from an 
avocado imported for consumption and discarded at a waste disposal site, since this purported risk 
is not verifiable if one considers the characteristics of the pit and the safety conditions that can be 
found at w aste disposal sites.2275 Mexico states that a landfill site contains rotting, uncontrolled 
organic waste that attracts pests, generates harmful gases and contaminates the water and soil.2276 
Mexico adds that pits are discarded and deposited in waste bins, where they will eventually  decay 
and, unless they have been cleaned and disinfected, may attract other pathogens or pests that affect 
the viability, growth and survival of avocado plants, not to mention that pits rarely touch the 
ground.2277 For Mexico, all these factors reduce any p ossibility of germination regardless of whether 
the humidity and temperature conditions in Costa Rica are conducive to the germination of a seed. 
Mexico adds that these are assertions that lack any scientific basis and do not connote an 
ascertainable risk.2278 
7.1284.   Mexico states that the germination process of a recalcitrant seed such as an avocado seed 
is not simple, nor does it happen almost spontaneously, and since the probability of the success of 
a recalcitrant avocado seed's germination and establishment dep ends on many specific variables 
and conditions, Costa Rica should have considered them in its risk analysis, but did not.2279 
7.1285.   Mexico contends that the assessment of the risk of entry and spread of ASBVd should 
necessarily have been conditioned by the success ful germination of a discarded pit. Mexico states 
that, since avocado pits contain biochemical inhibitors and mechanical barriers that make 
germination difficult, are recalcitrant, and must undergo a pretreatment prior to sowing, the risk of 
entry, establi shment and spread of ASBVd through the pit of a fresh avocado for consumption that 
is discarded in a rubbish dump is negligible.2280 
7.1286.   Mexico asserts that, in sum, neither of the two situations that Costa Rica refers to in its 
PRAs – diversion from intended us e due to cultural practices and spontaneous germination – justifies 
the finding of a risk of establishment of ASBVd through the pathway of fresh fruit imported for 
consumption, because:  
a. The probability of risk of entry of symptomless fruit with ASBVd is ne gligible, if 
not zero2281; 
b. There is no real -world evidence of the spontaneous germination of avocado waste 
(seed  and skin);  
c. The recalcitrant nature of the seed reduces the probability of an avocado pit germinating;  
 
2273 Mexico's second written submission, para. 135 (citing Regulation governing the use of 
avocado  seeds (2019),  (Exhibits MEX -174 and CRI -53)). 
2274 Mexico's opening statement at the first meeting of the Panel, para. 45.  
2275 Mexico's second written submission, par a. 140.  
2276 Mexico's second written submission, para. 142 ( citing  "Efectos sobre la salud y el Medio ambiente de 
los Vertederos", econoticias.com  (3 de mayo de 2017), (Exhibit  MEX-252)). 
2277 Mexico's second written submission, para. 142 (citing Declaración Jur ada de Rodolfo de la Torre 
Almaraz, 22 de enero de 2020 ( Affidavit of Rodolfo de la Torre Almaraz  (2020)) , (Exhibit  MEX-227)); response 
to Panel question No. 20.  
2278 Mexico's second written submission, para. 143.  
2279 Mexico's first written submission, para. 342.  
2280 Mexico's opening statement at the first meeting of the Panel, para. 47.  
2281 Mexico's second written submission, para. 144 (citing Asociación de Productores, Emp acadores y 
Exportadores de Aguacate de México, A.C. (APEAM), "Informe preliminar de resultados del muestreo para 
detectar ASBVd en aguacates frescos para consumo destinados a la exportación", enero 2020 ( APEAM,  
Preliminary report of  sampling survey  of cons ignments (2020) ), (Exhibit MEX -223)). WT/DS524/R  
- 318 - 
  d. The evidence provided by Costa Rica is not sufficient to estimate a probability of 
establishment as a result of diversion from the intended use of avocado fruit imported for 
consumption;  
e. Its PRAs were not based on biological, statistical or scientific information supporting the 
hypothesis of divers ion from intended use due to the cultural practice of germinating seeds 
in orchards and farms in Costa  Rica; 
f. Its risk assessment did not estimate the probability of the spontaneous germination of a 
pit discarded at a waste disposal site, a rubbish dump or other site in Costa  Rica; 
g. The potato PRA cited to justify the hypothesis of diversion from the intended use of fresh 
avocados for consumption is not applicable to this particular case;  
h. Costa Rica has failed to explain why its risk assessments lead to a pre sumption that the 
probability was estimated based on the consideration that: (i)  all discarded pits will remain 
viable after the flesh has been consumed; (ii)  all the pits will be used as propagati on 
material after the flesh of the fruit from which they ar e obtained has been consumed; 
(iii) 100% of the seeds will germinate; and (iv)  all the trees in question will be infected 
with ASBVd;  
i. Costa  Rica did not identify, using specific data, the destination points of fresh avocados 
imported for consumption from M exico;  
j. Costa  Rica failed to submit evidence estimating the incidence  of instances in which those 
seeds are discarded in a rubbish dump after the avocado has been consumed and are not 
viable for sowing, but are reserved for other uses2282; 
k. The ex post  exhibits submitted by Costa Rica relate mainly to the practice of growing 
criollo avocados and provide very little information on the sowing of pits from avocados 
imported for consumption2283; 
l. It is stated in the report Cultural practices in sowing and managi ng avocado seeds in Costa 
Rica (2019) that, in non -commercial or "backyard" production, as it is also known, the 
seeds used are predominantly from criollo avocados.2284 
7.1287.   Mexico submits that Costa Rica should have considered assessing the percentage loss of 
viability of the seeds at each stage of the avocado transport chain, from when the fruit is harvested 
in Mexico to when it is consumed in Costa Rica and subsequently discarded in waste channels, or 
planted directly once the producer purchases fresh avocados imported for consumption 
from Mexico.2285 Mexico highlights the changes in temperature during transport, which it claims lead 
to the loss of viability of the seed, and the loss of viability that results from removing the seed from 
the fruit.2286 Mexico adds that avocado propagation for commercial purposes follows highly specific 
procedures that guarantee the quality of the plant and, by extension, its fruit. Mexico contends that 
Hass avocado seeds are not a propagation pathway often used by produ cers and nursery workers, 
that trees germinated from Hass avocado seeds without grafting will take 15 years to bear their first 
fruit, and that trees planted directly from Hass avocado seeds are not commercially viable.2287 Mexico 
therefore considers that, s ince these factors were not evaluated as part of the risk assessment, 
Costa  Rica did not conduct a proper evaluation of the likelihood of establishment of ASBVd and its 
disease.2288 
 
2282 Mexico's second written submission, para. 144.  
2283 Mexico's second written submission, para. 144 ( citing  Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44)). 
2284 Mexico's second written submission, para. 144 ( citing  Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44)). 
2285 Mexico's first written submission, para. 339. 
2286 Mexico's first written submission,  para. 340. 
2287 Mexico 's first written submission,  para. 341. 
2288 Mexico's first written submission,  para. 342. WT/DS524/R  
- 319 - 
  7.1288.   Mexico concludes that, because Costa Rica's assertions lack any scientific b asis and there 
is insufficient scientific evidence to demonstrate that there is a likelihood  of establishment of ASBVd 
and its disease, Costa Rica's PRAs did not evaluate the likelihood  of establishment on the basis of 
the SPS  Agreement .2289 
7.1289.   Costa Rica  asser ts that it properly evaluated the likelihood  of establishment of ASBVd in 
its territory and that Mexico has failed to demonstrate otherwise.2290 
7.1290.   Costa Rica submits that, in accordance with the manual, it examined several of the aspects 
that ISPM No.  11 gives as examples of factors to be evaluated: (i)  availability of suitable hosts, 
alternate hosts and vectors in the PRA area; (ii)  suitability of environment; (iii)  cultivation practices  
and control measures; and (iv)  other characteristics of the pest affecting the probability of 
establishment.2291 Costa  Rica states that Article  5.1 of the SPS  Agreement  requires Members to take 
into account, not to adopt, risk assessment techniques developed by the relevant international 
organizations.2292 
7.1291.   Costa Rica points  out that, based on the available scientific information and the studies on 
diversion from intended use, it concluded that there is a medium  probability of establishment of 
ASBVd in its territory.2293 Costa Rica adds that Everett and Siebert (2018) conclude that there is 
a high risk of ASBVd establishing in New  Zealand  and of particular concern is its importation in fruit 
from symptomless plants or seeds.2294 
7.1292.   Costa Rica submits that, in its risk assessment, it found the probability of availability of 
hosts and other characteristics of ASBVd to be low because ASBVd has been reported only in 
avocados and there are no known alternate hosts, and because the pest does not have a high 
reproductive potential or the ability to spread quickly. Costa Rica states that, nev ertheless, the 
suitability of environment to ASBVd is high, because the environmental conditions required for its 
survival are those required by its host, the avocado plant, which is a plant native to Mesoamerica, 
and the environmental conditions in Costa Rica are propitious for ASBVd.2295 
7.1293.   Costa Rica contends that one of the essential aspects that impinges on the probability of 
establishment of the viroid are the cultivation practices  and control measures, and states that there 
is no control method for ASBVd,  since an infected plant cannot be cured, and the only option is to 
eradicate or rogue avocado trees. Costa Rica adds that the widespread cultivation  practice of planting 
the seeds of previously consumed fruit increases the probability of establishment of the pest, since 
the transmission rate of ASBVd by the seeds of symptomless fruit is 100%; and that the practice of 
diversion from intended use is common to both private individuals and farmers.2296 
7.1294.   Costa Rica submits that it was observed that the germination  of seeds from symptomless 
infected fruit would systematically produce avocado trees infected with the pest, and that Costa Rica 
took into account the environmental conditions in its territory, which is a factor listed in Article  5.2 
of the SPS  Agreement . In Costa Rica's view, for most of the year, its wet tropical climate provides 
suitable conditions for the germination of avocado seeds2297, and the germination of a seed may 
occur naturally or intentionally.2298 
 
2289 Mexico's first written submission, para. 344; second written submission, para. 145.  
2290 Costa Rica's first written submission, p. 56; second written submission, para. 3 .36. 
2291 Costa Rica's first written submission, para. 5.127; second written submission, para. 3.36.  
2292 Costa Rica's first written submission, para. 5.127.  
2293 Costa Rica's first written submission, para. 5.127.  
2294 Costa Rica's first written submission, para. 5.127 (citing Everett and Siebert (2018),  
(Exhibit CRI -27), p. 33); second written submission, para. 3.36.  
2295 Costa Rica's first written submission, para. 5 .128 (citing Everett and Siebert (2018),  
(Exhibit CRI -27), p. 27; and Galindo Tovar et al. (2008), (Exhibit MEX-22)). 
2296 Costa Rica's first written submission, para. 5.129 (citing Beltrán Peña (2013), (Exhibit MEX -63), 
pp. 9 and  10; Ncango et al. (2014), (Exhibit  CRI-8), p. 73; CONSULSANTOS (2017), (Exhibit  MEX-118); 
and Cambrón Crisantos (2011), (Exhibit  CRI-10), p. 17 ). 
2297 Costa Rica's second written submission, para. 3.36 (citing Los Santos Zone (2007),  
(Exhibit MEX-97), p. 8; and CONSULSANTOS (2010), (Exhibit MEX-119), p. 15).  
2298 Costa Rica's second written submission, para. 3.37.  WT/DS524/R  
- 320 - 
  7.1295.   Costa Rica states that a " medium " degree of prob ability was attributed both to the practice 
of diversion from intended use and to the conclusion on the establishment of ASBVd, and that Mexico 
itself takes into consideration diversion from intended use in its risk assessments.2299 
7.1296.   Costa Rica concludes that  there are sufficient grounds for finding that there is no method 
to eradicate ASBVd from an infected plant; that the seed of a symptomless fruit has a high potential 
for transmitting the viroid; and that Costa Rican avocado producers use the seeds of cons umed fruit 
for planting and obtaining rootstock. Costa Rica asserts that Mexico has failed to demonstrate that 
the conclusions drawn by Costa Rica regarding the medium  probability of establishment cannot be 
objectively justified on the basis of available s cientific evidence.2300 
7.1297.   With regard to the likelihood  of establishment of ASBVd in Costa Rica, the Panel  observes 
that the following factors were considered in Reports ARP -002-2017 and ARP -006-2016: 
(i) availability of suitable hosts, alternate hosts and vectors in the PRA area; (ii)  suitability of 
environment; (iii)  cultivation practices  and control measure s; and (iv)  other characteristics of the 
pest affecting the probability of establishment. Reports ARP -002-2017 and ARP -006-2016 assigned 
a low probability to the first and last factors, a high probability to the second factor and a medium  
probability to th e third factor.  
7.1298.   In the section devoted to the first factor, i.e. the availability of suitable hosts, alternate 
hosts and vectors in the PRA area , Reports ARP -002-2017 and ARP -006-2016 note, inter alia , that, 
"[i]n the case of seeds that germinate from impo rted avocado fruit, either because the waste (seed) 
was disposed of in a place suitable for seed germination or because it was diverted from its 
intended  use, the pest would already be systemic in the host plant's tissue (Ploetz et al. (2011))".2301 
As menti oned before, the assertion that the pest is systemic in the host is supported by Ploetz et al. 
(2011). However, in the source cited, the Panel finds no support for the first assertion ("[i]n the 
case of seeds that germinate from imported avocado fruit, eit her because the waste (seed) was 
disposed of in a place suitable for seed germination or because it was diverted from its 
intended  use") or for drawing a link between this baseless assertion about the status of the seed 
and the systemic nature of the pest.  Costa Rica provides no evidence of the events to which it refers 
in the first part of this sentence, that is, the germination of the seeds of imported avocado fruit as 
a result of disposal (spontaneous germination) or diversion from intended use.  
7.1299.   In secti on 7.4.5.3.3  above, the Panel conducted a detailed analysis of the cross -cutting 
issues of spontaneous germination and diversion from intended use and the insufficient scientific 
evidence in that regard throughout Reports ARP -002-2017 and ARP -006-2016.  
7.1300.   Moreover, although Costa Rica mentions the aforementioned issues when addressing the 
factor of the availability of suitable hosts, alternate hosts and vectors in the PRA area, this does not 
constitute an analysis of the factor, i.e. of the quantity and dis tribution of suitable hosts in relation 
to the probability of establishment.  
7.1301.   Regarding the second factor, i.e. suitability of environment , Reports  ARP-002-2017 
and ARP-006-2016 state that "[t]he environmental conditions this pest needs to survive are those  
required by its host, the avocado tree".2302 This assertion is not supported by any scientific evidence 
in the reports. Although the experts pointed out that ASBVd is an obligate biotrophic pathogen or 
intracellular parasite that requires its host to surviv e and multiply2303, such explanations are missing 
from Reports ARP -002-2017 and ARP -006-2016.  
7.1302.   Report ARP -002-2017 then mentions that "[t]he avocado is a plant native to Mesoamerica 
(Galindo et al.  (2007)), and the environment of the PRA area is favourable for this pest 
(Holdridge  (1987))".2304 
 
2299 Costa Rica's first written submission, p aras. 5.131 -5.132.  
2300 Costa Rica's first written submission, para. 5.134.  
2301 ARP-002-2017, (Exhibit MEX -84), p. 38 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 19 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2302 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 19.  
2303 Responses of Pablo Cortese and Ricardo Flores Pedauyé to Panel question No. 33(a) for the experts.  
2304 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing Holdridge (1982), (Exhibit C RI-122)). WT/DS524/R  
- 321 - 
  7.1303.   Although Holdridge (1982) is an entire book on the classi fication of life zones in general , it 
does not contain a specific description of the environment in Costa Rica, nor does it relate to 
environments that are favourable for ASBVd. With respect to the same assertion, the Panel notes 
that Report ARP -006-2016 d oes not cite Holdridge (1982). Rather, it refers to Datasheet ARP -001-
20142305, which is the datasheet for Reports ARP -002-2017 and ARP -006-2016, and does not support 
the assertion that the environment of the PRA area is favourable for this pest either.  
7.1304.   Reports ARP -002-2017 and ARP -006-2016 lack explanations, duly supported by scientific 
evidence, about the favourable climatic conditions for ASBVd and about the relationship between 
the assertions that the avocado is a plant native to Mesoamerica and that the environment of the 
PRA area is favourable for ASBVd. In addition, in Reports ARP -002-2017 and ARP -006-2016, no 
consideration is given to the different climatic conditions that exist in the various regions of 
Costa  Rica or to seasonal variations in conditio ns. 
7.1305.   Regarding the third factor, i.e. cultivation practices  and control measures , Reports  ARP-
002-2017 and ARP -006-2016 indicate that there is no control method for this pest2306, and the only 
option is to eradicate or rogue trees2307; that the documented cultivation practices  in Costa Rica 
would affect the spread of the pest, given that producers are known to prepare their own seedbeds 
and do not turn to commercial nurseries, that pruning or harvesting tools are not disinfected between 
trees, that replanting or chards is extremely expensive, and that nurseries, which are subject to 
government regulations, are not the main source of material planted in the field2308; and that the 
foregoing is related to diversion from intended use, that is, the practice of using see ds from imported 
Hass avocados to grow new plants despite the fact that those avocados were originally imported for 
human consumption.2309 
7.1306.   Reports ARP -002-2017 and ARP -006-2016 cite Hadidi et al.  (2003) when asserting that 
there is no control method for ASBV d and then add that the only option is to eradicate or rogue 
trees. Hadidi et al. (2003) state that an indexing programme for the propagation and dissemination 
of registered rootstock and scion materials tested for ASBVd offers the best approach for contro l of 
sunblotch, and that sanitation by removal of sunblotch -expressing or symptomless carrier trees is 
the primary mode to control spread of the disease in the field.2310 Hadidi et al. (2003) do not state 
that "there is no control method". Rather, they appea r to suggest that an indexing programme, 
together with the removal of infected trees, helps control. In the Panel's view, the risk assessor does 
not make accurate use of the scientific evidence referred to in support of his assertions and, despite 
speaking  of eradication or rogueing, does not provide adequate explanations as to what is 
understood by these terms.  
7.1307.   The datasheet for the reports, in a section entitled "control", presents the information 
differently, indicating that the removal of infected trees  is the only known method (Hadidi et al. 
(2003)), and that the disease is difficult to control and there are no therapeutic methods or resistant 
varieties.2311 However, in the section on cultivation practices  and control measures, no reference is 
made to these statements from the datasheet.  
7.1308.   The Panel notes that, in another article in the record, Ploetz et al. (2011), it is stated that 
sunblotch is considered a minor problem in countries where tree registration  programmes exclude 
ASBVd from propagating material, an assertion with which the experts agreed.2312 Ploetz et al.  
(2011) add that the most important control measure for sunblotch is the careful selection of 
pathogen -free budwood and seed that are used for p ropagation, and that the disease can also be 
controlled by removing symptomatic and symptomless trees from orchards and indexing suspect 
trees.2313 The Panel considers that this confirms the understanding of Hadidi et al. (2003) that the 
 
2305 ARP-006-2016, (Exhibit MEX -85), p. 19.  
2306 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing Hadidi et al. (2003), (Exhibit CRI -121));  
ARP-006-2016, (Exhibit MEX -85), p. 19 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
2307 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 19.  
2308 ARP-002-2017, (Exhibit MEX -84), p. 39 (citing CONSULSANTOS (2010), (Exhibit MEX -119));  
ARP-006-2016, (Exhibit MEX -85), pp. 19 -20 (citing CONSULSANTOS (2010), (Exhibit MEX -119)). 
2309 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhibit MEX -85), p. 20.  
2310 Hadidi et al. (2003), (Exhibit CRI -121), p. 175.  
2311 ARP-002-2017, (Exhibit MEX -84), p. 64; ARP -006-2016, (Exhibit MEX -85), p. 48.  
2312 Ploetz et al. (2011), (Exhibit MEX-56), pp. 5 -6; Responses of Pablo Cortese, Ricardo Flores Pedauyé 
and Fernando  Pliego Alfaro to Panel question No. 60 for the experts.  
2313 Ploetz et al. (2011), (Exhibit MEX -56), p. 6.  WT/DS524/R  
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  indexing of propagat ion material and the removal of infected trees may be considered control 
methods for ASBVd. However, Reports ARP -002-2017 and ARP -006-2016 merely state that there is 
no control method for ASBVd, and do not reflect the explanations found in the articles tha t form part 
of their scientific basis, namely Ploetz et al. (2011) and Hadidi et al. (2003).  
7.1309.   Reports ARP -002-2017 and ARP -006-2016 cite CONSULSANTOS (2010) when asserting 
that the documented cultivation practices  in Costa Rica would affect the spread of th e pest, given 
that producers are known to prepare their own seedbeds and do not turn to commercial nurseries, 
that pruning or harvesting tools are not disinfected between trees, that replanting orchards is 
extremely expensive, and that nurseries, which are  subject to government regulations, are not the 
main source of material planted in the field.  
7.1310.   The report CONSULSANTOS (2010), which is described in section 7.4.5.3.3  above and 
relates to an avocado census in the area of Los Santos, Frailes and Corralillo, contains questions on 
planting materials.2314 It is noted that, with the exception of the canton of Guarco, where most 
producers tended to obtain their planting materia ls through a nursery, in the other cantons there is 
a greater tendency to obtain trees via rootstock seed.2315 This confirms that nurseries are not the 
main source of material planted in the field in the areas investigated in the census, except for the 
canto n of Guarco. However, CONSULSANTOS (2010) does not support the assertions that pruning 
or harvesting tools are not disinfected between trees or that replanting orchards is extremely 
expensive. Indeed, CONSULSANTOS (2010) contains no reference to the disinf ection of tools or the 
cost of replanting orchards.2316 It mentions only that the establishment and expectations  of avocado 
production  make it a costly process for the average Costa Rican farmer.2317 
7.1311.   In addition, the Panel notes that the assertion in Reports A RP-002-2017 and ARP -006-2016 
that the foregoing is related to diversion from intended use, that is, the practice of using seeds from 
imported Hass avocados to grow new plants, is not supported by the sources cited under this point, 
namely Hadidi et al. (2003) and CONSULSANTOS (2010), and no other scientific evidence has been 
submitted in this regard.  
7.1312.   The Panel recalls that, according to Costa Rica, one of the essential aspects that impinges 
on the probability of establishment of ASBVd are the cultivation practices  and control measures2318, 
and the Panel found in its analysis in section 7.4.5.3.3.4  above that there is insufficient scientific 
evidence concerning diversion from intended use throughout Reports ARP -002-2017 and ARP -006-
2016.  
7.1313.   With regard to the fourth fact or, i.e. other characteristics of the pest  affecting the 
probability of establishment, Reports ARP -002-2017 and ARP -006-2016 point out that ASBVd does 
not have a high reproductive potential or the ability to spread quickly.2319 A low probability is 
assigned to this factor, which, according to Manual NR -ARP-PO-01_M -01, is given when a pest does 
not have a high reproductive potential or the ability to spread quickly. In other words, to justify the 
probability assigned to this factor, Reports ARP -002-2017 and AR P-006-2016 present the same 
criterion as that indicated in the manual for the assessment of the probability of the factor, without 
any further explanation being given.  
7.1314.   The experts consulted commented on the issue of the reproduction of ASBVd and its 
consid eration in Reports ARP -002-2017 and ARP -006-2016.  
7.1315.   The expert on risk assessment methods  and techniques, Robert Griffin, notes that the 
section on the probability of establishment does not address the potential for adaptation by the pest, 
the reproductive s trategy of the pest, or the method of pest survival, which are biological 
characteristics that affect the uncertainty and evidence associated with the probabilities for 
establishment. In Mr Griffin's opinion, while they do not need to be specifically highl ighted, they 
 
2314 CONSULSANTOS (2010), (Exhibit MEX -119), pp. 24 -25 and 37 -38.  
2315 CONS ULSANTOS (2010), (Exhibit MEX -119), p. 24.  
2316 Mexico's first written submission, para. 242.  
2317 CONSULSANTOS (2010), (Exhibit MEX -119), p. 64.  
2318 Costa Rica's first written submission, para. 5.129.  
2319 ARP-002-2017, (Exhibit MEX -84), p. 39; ARP -006-2016, (Exhib it MEX -85), p. 20.  WT/DS524/R  
- 323 - 
  should be identified to the extent that they are factors in the probabilities, but he does not see that 
Costa  Rica did this.2320 
7.1316.   Mr Griffin expresses the view that the elements used by Costa Rica are reasonable and 
relatively complete, but the a nalysis and evaluation of certain elements is questionable. Mr Griffin 
notes that a key point is that an infected seed is not common, and if one is planted or grows 
volunteer, it results in one infected plant and not an outbreak. Mr Griffin is of the view that the 
spread is relatively slow, containment is easy once detected, and the impacts are very limited. 
Mr Griffin considers that criteria used by Costa Rica in its PRA lead to conservative conclusions 
resulting in high scores through most of the assessme nt of the likelihood and consequences of 
introduction, which, when added together and averaged, result in a high overall score, when several 
low probability events would argue for a lower risk.2321 
7.1317.   Mr Griffin states that his concerns are primarily in the are a of the analysis of the probability 
of introduction and spread, and refers to the element under "other characteristics" that deals with 
the rate of reproduction and spread of the pest, which is a very important question in the case of 
ASBVd. Mr Griffin ex presses the view that the question of the rate of reproduction and spread of the 
pest under "other characteristics" of the probability of establishment is a critical factor for spread, 
and it has no weight in the analysis of spread and very little weight i n the analysis of 
establishment.2322 
7.1318.   The e xperts  Pablo Cortese and Fernando Pliego Alfaro concur . Mr Cortese states that it is 
not necessarily always the case that a plant is established, or that its establishment results in an 
epidemic, and that introductio n is not the same as an epidemic and need not trigger an epidemic or 
establishment.2323 Mr Pliego Alfaro also comments that ASBVd is not a pest that spreads because it 
has been in a country for a long time. Mr Pliego Alfaro considers that once farmers see a  tree 
displaying symptoms, they uproot it, since symptoms appear even in asymptomatic trees when they 
are checked or pruned in any way.2324 Mr Pliego Alfaro asserts that ASBVd can be controlled relatively 
well if the country uses material that is certified a nd free from sunblotch, but that even if the country 
does not adopt this approach, it is not a disease that progresses much over time.2325 
7.1319.   In light of the foregoing, the Panel observes that, in evaluating the likelihood of 
establishment, the risk assessor pa id little attention to the rate of reproduction and spread of the 
pest, which is a critical factor for the spread of ASBVd. In the Panel's view, Reports  ARP-002-2017 
and ARP -006-2016 do not give sufficient consideration to the rate of reproduction and spre ad of the 
pest, bearing in mind the points made by the experts that the germination of an infected avocado 
plant does not lead to an outbreak, and that ASBVd is not a pest that progresses much over time. 
In view of the foregoing, although Costa Rica assign s a low probability to the factor of other 
characteristics of the pest affecting the probability of establishment, the calculation of the probability 
of establishment of ASBVd in Costa Rica was affected by the failure to give sufficient consideration 
to the rate of reproduction and spread of ASBVd.  
7.1320.   Moreover, the inclusion of an analysis of ASBVd's potential for adaptation, its reproductive 
strategy, and its methods of survival would have facilitated an understanding of the pest's potential 
for adaptation to  the environment.  
7.1321.   The Panel considers that the reproduction and spread of the pest is a key step that would 
complete the chain of conditions and events resulting in the introduction of ASBVd into Costa Rica. 
The Panel recalls that, as stated in paragraphs 7.1260  to 7.1262  above, Reports ARP -002-2017 
and ARP-006-2016 do not consider, throughout the analysis of the probability of introduction, the 
 
2320 Robert Griffin's response to Panel question No. 153 for the experts.  
2321 Robert Griffin's response to Panel question No. 113 for the experts.  
2322 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 23 -24. 
2323 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 25 
and 29-30. 
2324 Fernando Pliego Alfaro, transcript of the  Panel's meeting with the parties and the experts, day 2, 
pp. 32-33. 
2325 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 3, 
p. 30. WT/DS524/R  
- 324 - 
  multiplicative relationship between the conditions and events related to the pathway of fresh 
avocados for consum ption.  
7.1322.   In the Panel's view, the aforementioned flaws result in an overestimation of the likelihood  
of introduction of ASBVd in Costa Rica. Moreover, the failure to pay sufficient attention to a key 
factor for ASBVd  —the rate of reproduction and spread of t he pest — renders the risk assessment 
inadequate for the viroid.  
7.1323.   Lastly, the Panel notes that, in its arguments concerning the evaluation of the likelihood of 
establishment of ASBVd in Reports ARP -002-2017 and ARP -006-2016, Mexico refers repeatedly to 
diversion from intended use and spontaneous germination.  
7.1324.   Mexico contends that the establishment of ASBVd is directly related to the risk of 
germination of the pits of avocados originally imported for consumption, and that Costa Rica's PRAs 
point to two risk sce narios associated with this pathway: (i)  diversion from intended use due to 
cultural practices; and (ii)  the spontaneous germination of waste.2326 Mexico asserts that neither of 
the two situations that Costa Rica refers to in its PRAs – diversion from intend ed use due to cultural 
practices and spontaneous germination – justifies the finding of a risk of establishment of ASBVd 
through the pathway of fresh fruit imported for consumption.2327 
7.1325.   Costa Rica states that, based on the available scientific information an d the studies on 
diversion from intended use, it concluded that there is a medium  probability of establishment of 
ASBVd in its territory.2328 Costa Rica also states that it found that its climatic conditions are conducive 
to the germination of avocado seeds, which may occur naturally or intentionally.2329 
7.1326.   The Panel observes that diversion from intended use was considered in Reports ARP -002-
2017 a nd ARP -006-2016 under the probability factors related to the availability of suitable hosts, 
alternate hosts and vectors in the PRA area and to cultivation practices  and control measures; and 
that spontaneous germination was considered under the factor rel ated to the availability of suitable 
hosts, alternate hosts and vectors in the PRA area. The Panel examined in detail the evaluation of 
these factors.  
7.1327.   The Panel also refers to its conclusions in sections 7.4.5.3.3.4  and 7.4.5.3.3.9  above to the 
effect that there is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the existence of diversion from the intended use of seeds from fresh fruit for consumption and on 
the spontaneous germination of such seeds, nor are there estimates, even in qualitative terms, of 
the scale on which diversion from intended use an d spontaneous germination occur in Costa Rica. 
The foregoing meant that the risk analyst was unable to carry out either a qualitative or quantitative 
assessment of the probability of entry, establishment or spread of ASBVd in Costa Rica that would 
give due  consider ation to  this diversion from intended use and spontaneous germination.  
Conclusion on the likelihood  of establishment  
7.1328.   Having analysed the various factors and elements considered in Reports ARP -002-2017 and 
ARP-006-2016 to determine the likelihood  of establishment of ASBVd in Costa Rica, the Panel 
concludes that there are the following flaws: 
a. Regarding the scientific basis : 
i. there are assertions that do not find support  in the  scientific evidence;  
ii. there are assertions that refer to a source, but that source does not support those 
assertions or does so only partially; 
 
2326 Mexico's second written submission, para. 129.  
2327 Mexico's second written subm ission, para. 144 ( citing  Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), (Exhibit  CRI-44)). 
2328 Costa Rica's first written submission, para. 5.127.  
2329 Costa Rica's second written submission, paras.  3.36-3.37. WT/DS524/R  
- 325 - 
  iii. there is a failure to consider information relevant to the risk assessment contained in 
the scientific evidence cited; and  
iv. there is insufficient scientific evidence concerning diversion from intended use and 
spontaneous germination.  
b. Regarding the risk assessor's reasoning:  
i. no explanation s are given  for how the evidence provided at different points in the 
analysis relates to the conclusions for each probability; and  
ii. the same probability descriptor that appears in Manual NR -ARP-PO-01_M -01 for pests 
in general is used to justify the probability assigne d to some of the factors, without it 
being adapted to the case of ASBVd and without any explanation being given.  
7.1329.   Moreover, in evaluating the likelihood  of establishment of ASBVd in Costa Rica, the risk 
assessor pays little attention to the rate of reproduc tion and spread of ASBVd, which is a critical 
factor for the spread of the pest, thereby affecting the evaluation  of the likelihood  of establishment 
of ASBVd in Costa Rica.  
7.1330.   Furthermore, Reports ARP -002-2017 and ARP -006-2016 do not consider the multiplicati ve 
relationship that exists between the conditions and events necessary for the establishment of ASBVd 
in Costa  Rica. Since this flaw is found in relation to the likelihood  of both entry and establishment, 
which together make up the likelihood of introduct ion of the pest, the Panel considers that 
Reports  ARP-002-2017 and ARP -006-2016 have overestimated the overall likelihood of introduction 
of ASBVd into Costa Rica.  
7.1331.   The Panel considers that the result of assigning risk values, whether high, medium , or low, 
with their respective numerical values (3, 2, or 1), to the various factors, on several occasions 
without the necessary scientific basis, without sufficient reasoned explanations by the risk assessor, 
without paying due attention to the rate of reproductio n and spread of ASBVd, and without 
considering the multiplicative relationship that exists between the conditions and events necessary 
for the establishment of ASBVd, cannot be considered an objectively justifiable qualitative 
assessment of the likelihood of establishment of ASBVd in Costa Rica's territory.  
7.4.5.3.4.3   Evaluation of the likelihood of spread  
7.1332.   Mexico  submits that Costa Rica's PRAs should have included a systematic, reasoned and 
scientific analysis of the incidence of instances of the spread of ASBVd in th e territory of Costa  Rica; 
in other words, evaluated the probability that, once it had become established, ASBVd would spread 
to the rest of the territory through infected trees used as propagati on material or through simply 
sowing seeds in commercial orch ards.2330 
7.1333.   For Mexico, Costa Rica should have evaluated the probability of ASBVd being transmitted 
through each of the pathways of transmission and, if applicable, justified why imported fresh 
avocados for consumption is a pathway that particularly warrants t he application of phytosanitary 
measures.2331 
7.1334.   Mexico states that, according to the fresh fruit PRA (2015), the probability of ASBVd and 
its disease spreading naturally is minimal, since a number of external factors are required for it to 
be transmitted from one host to another, such as using propagati on material infected with ASBVd 
(buds, seedlings, and cuttings), using tools that have not been disinfected, and pollen.2332 
7.1335.   Mexico further states that, pursuant to the fresh fruit PRA (2015), the probability of ASBVd 
transferring successfully from the pathway to a suitable host will be determined by the pest's 
 
2330 Mexico's first written submission, paras.  275 and 345.  
2331 Mexico's first written submission, para. 346.  
2332 Mexico's first written submission, para. 347 (citing J.C. Picado Salmerón, "Evaluación del Riesgo 
presentado por frutos frescos de aguacate (palta) pr ocedente de México y destinados a Costa Rica como vía de 
ingreso para ASBVd" , julio de 2015 ( Picado Salmerón, Fresh fruit PRA (2015) ), (Exhibit  MEX-61)); second 
written submission, para. 150.  WT/DS524/R  
- 326 - 
  dispersal mechanisms, its ability to move from the pathway on its ow n, and the ability of the pathway 
to cause diversion from intended use. Consequently, Costa Rica should have analysed these three 
factors, and not merely made unsubstantiated claims about the possibility (and not probability) of 
seeds germinating simply by  falling to the ground.2333 
7.1336.   Mexico contends that there is no scientific evidence confirming that the pathway of fresh 
avocados imported for consumption from Mexico is a pathway for the spread of ASBVd. Mexico adds 
that transmission by natural means is low, g iven that it is closely linked to the trade in propagati on 
material and to cultural practices that lead to the transmission of the pathogen by mechanical means, 
but that these are not pathways analysed in the PRAs, nor are they related to the pathway of fr esh 
avocados imported for consumption.2334 Mexico asserts that, as a result, the probability of ASBVd 
and its disease being transmitted by natural or mechanical means through the pathway of fresh fruit 
imported for consumption from Mexico is minimal.2335 
7.1337.   Mexico refers to section 2.2.3 of ISPM No.  11 and states that, according to that ISPM, in 
order to estimate the probability of spread of the pest, reliable biological information should be 
obtained from areas where the pest currently occurs.2336 In this conn ection, Mexico argues that 
Costa Rica based its PRAs on two studies carried out in Mexico: De la Torre et al.  (2009) and 
Vallejo  Pérez et al.  (2017), which are not representative or relevant for describing the status of 
ASBVd and its disease in Mexico or e ven in the places where they were conducted, since: 
(i) De la Torre et al. (2009) is based on 30 samples from five trees located in a commercial orchard 
in the municipality of Tingambato, Michoacán; and (ii)  Vallejo Pérez et al. (2017) is based on samples 
from 70 avocado trees of Mexican race in the municipalities of Quimixtlán, Puebla, and Zumpahuacán 
and Tenancingo, state of Mexico, which did not report the presence of ASBVd, and samples from 
35 Hass avocado trees in the municipality of Tingambato, Michoa cán, with ASBVd found to be 
present in only 14% of the samples.2337 Mexico points out that the state of Michoacán accounts for 
2.99% of the national territory, and that 26 of the 32 states in Mexico produce and export 
avocados.2338 Mexico contends that the eva luation of the probability of spread should have included 
biological information from other avocado -producing municipalities both in Michoacán and in the 
other 25 avocado -producing states in Mexico, and from countries where the disease is present, such 
as the United  States , Spain, South  Africa , and Peru.2339 
7.1338.   Mexico states that , in accordance with section 2.2.3 of ISPM No.  11, after obtaining reliable 
biological information from areas where ASBVd currently occurs, Costa Rica should have carefully 
compared the situation in the PRA area with these areas and used expert judg ement  to assess the 
probability of spread.2340 Mexico asserts that, while Costa Rica's PRAs list the factors to be considered 
in accordance with the ISPM, the conclusions therein are based on gen eral assertions and have no 
scientific basis. According to Mexico, in the PRAs, there is no comparison of the biological information 
obtained, nor does it appear that experts were consulted specifically to assess the probability of 
spread of ASBVd in Costa  Rica.2341 Mexico adds that the only evidence cited is Ploetz et al. (2011), 
which is not related to the probability of spread of ASBVd through the pathway of fresh avocados 
imported for consumption from Mexico.2342 
7.1339.   Mexico submits that, in order to conduct a proper assessment of the probability of spread 
of ASBVd and its disease through fresh fruit imported for consumption, Costa Rica should have 
considered: comparing reliable biological information from areas where ASBVd and its disease were 
present  in Mexico with the conditions of the PRA area; using expert judg ement  to assess the 
probability of spread of ASBVd and its disease; the pathways of transmission in avocados and the 
actual probability of risk associated with each one; the probability of ge rmination of a seed based 
 
2333 Mexico's first written submission, para. 348 (citing Picado Sa lmerón, Fresh fruit PRA (2015), 
(Exhibit  MEX-61)). 
2334 Mexico's first written submission, para. 349 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47), 
pp. 119–120).  
2335 Mexico's first written submission, para. 350.  
2336 Mexico's first written submission, para . 351.  
2337 Mexico's first written submission, para. 351 (referring to De la Torre et al. (2009), (Exhibit  MEX-70); 
and Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
2338 Mexico's first written submission, para. 352.  
2339 Mexico's first written submission, para. 353.  
2340 Mexico's first written submission, para. 354.  
2341 Mexico's first written submission, para. 355.  
2342 Mexico's first written submission, para. 355 (referring to Ploetz et al. (2011), (Exhibit MEX -56)). WT/DS524/R  
- 327 - 
  on factors that could adversely affect its viability; the probability of an avocado tree being viable for 
commercial production and being used for propagation purposes; and the processes carried out by 
Mexican producers to minimiz e the presence of fruit with ASBVd in exported fruit.2343 For Mexico, 
Costa Rica carried out an extremely limited analysis of the quality of the verification of instances of 
risk occurrence, and should have conducted a clear, objective and coherent assessmen t of the 
transmission methods by which, if applicable, the viroid would spread through its territory.2344 
7.1340.   Mexico adds that there are authors who note that seedlings that germinate from the seeds 
of plants infected with ASBVd may not test positive for ASBVd.2345 Accordingly, assuming arguendo  
that the pit of an imported fruit germinated as a result of diversion from intended use or 
spontaneously, Costa Rica would be required to evaluate the probability of spread according to the 
pest's ability to replicate, bear ing in mind the characteristics of ASBVd.2346 
7.1341.   Regarding spread as a result of diversion from intended use  resulting from cultural 
practices, Mexico states that, according to the scientific literature, once established, ASBVd may 
spread through the grafting o f propagati on material, natural root -to-root grafts in the field, 
mechanical damage, and pollen2347, and contends that: (i)  Mexico does not export propagati on 
material to Costa Rica, therefore the probability of ASBVd being transmitted through propagati on 
material is zero; (ii)  since the probability of entry and establishment of ASBVd is negligible, the 
probability of spread is even lower; and, (iii)  having reviewed the PRAs, Costa Rica does not seem 
to have provided scientific evidence of the practice of gra fting Hass onto Hass.2348 Mexico asserts 
that, given that Costa Rica's risk assessment contains no other reason to justify, on the basis of 
scientific evidence or other information, the risk of spread of ASBVd on account of cultural practices, 
Costa Rica fai led to assess the probability of spread of ASBVd through the pathway of fresh avocados 
imported for consumption.2349 
7.1342.   With respect to the risk arising from the spontaneous germination  of avocado waste, Mexico 
contends that, in its risk assessment, Costa Rica did not consider any scientific evidence confirming 
the risk that could result from the spread of ASBVd through seeds that germinate spontaneously at 
waste disposal sites, on farms  or in backyards2350; that the probability that an avocado pit discarded 
at waste disposal sites will germinate is practically zero because of the recalcitrant nature of the 
seed and as a result of the probability that the pit will rot or become infected owi ng to the soil 
conditions; and that it cannot be deduced from the memorandums submitted by Costa Rica as ex 
post facto  exhibits to prove spontaneous germination that there was any possibility that those trees 
had propagated naturally.2351 
7.1343.   Mexico adds that th e probability of the disease spreading naturally is low; that there is no 
scientific evidence confirming that transmission through pollen is viable in uncontrolled 
environments; and that another avocado tree would have to be nearby in order for ASBVd to be  
transmitted through natural root grafting, which is unlikely to happen at a waste disposal site.2352 
Mexico maintains that, assuming, for the sake of argument, that a tree germinated spontaneously 
at a waste disposal site, it would take this plant 8 to 10 y ears to bear its first fruit, and the spread 
of the disease would depend on a fruit, cutting or seedling being taken from the tree for propagation 
purposes, which has not been argued by Costa Rica.2353 
7.1344.   Mexico asserts that the risk of spread can be controlled  through domestic regulations 
governing the use of propagati on material on farms and in nurseries.2354 
 
2343 Mexico's first written submission, para. 356.  
2344 Mexico's first written submission, paras.  357–358. 
2345 Mexico's second written submission, paras.  147–149 ( citing Téliz (2015), (Exhibit MEX -172); 
Affidavit of  Rodolfo de la Torre Almaraz  (2020) , (Exhibit MEX-227); and Affidavit of Salvador Ochoa Ascencio  
(2020) , (Exhibit MEX -222)). 
2346 Mexico's second written submission, para. 149.  
2347 Mexico's second written subm ission, para. 150.  
2348 Mexico's second written submission, para. 151.  
2349 Mexico's second written submission, para. 152.  
2350 Mexico's second written submission, para. 153.  
2351 Mexico's second written submission, para. 154.  
2352 Mexico's second written submission, para. 155.  
2353 Mexico's second written submission, para. 156.  
2354 Mexico's second written submission, para. 157.  WT/DS524/R  
- 328 - 
  7.1345.   Mexico concludes that, even if an avocado pit from a fruit imported for consumption were 
to germinate, the probability of spread would be zero, since the s pread of ASBVd by natural means 
is minimal; there is no scientific evidence confirming the practice of grafting Hass onto Hass using 
scions obtained from the pits of imported avocados; and the risk of spread arising from the pathway 
of fresh avocados impor ted for consumption is not a verifiable risk.2355 
7.1346.   Costa Rica  submits that it correctly evaluated the probability of the spread of ASBVd2356; 
and that Mexico does not claim that the scientific evidence underpinning the risk assessment 
concerning the spread of ASBVd is not respectable, nor has it provided any evidence that Costa Rica 
failed to carry out a n assessment  of the case . Costa Rica states that it found, in accordance with the 
scientific literature, that ASBVd spreads mainly through grafting, a nd that mechanical transmission 
is possible.2357 
7.1347.   Costa Rica contends that, although Mexico claims that the probability of ASBVd spreading 
naturally is minimal, this contradicts its own assertion that one of the most significant risks of 
spreading stems from natural root grafting, which is a natural means of spread. Costa Rica adds that 
what is being assessed is the probability of ASBVd spreading once it has become established in Costa 
Rica, and not the probability of it spreading solely by natural means.2358 Costa Rica adds that the 
main dispersal mechanisms of ASBVd described in the scientific literature are grafting and obtaining 
rootstock from infected seeds, and that obtaining Hass rootstock from seeds and grafting Hass onto 
Hass are widely used agricultural  practices in Costa Rica that would spread ASBVd very efficiently if 
the viroid were to enter and establish itself in the territory of Costa Rica.2359 
7.1348.   Costa Rica adds that if a farm had infected Hass trees, grafts and the use of pruning tools 
would spread AS BVd very effectively; and that multiple cuttings can be taken for grafting from a 
single productive Hass tree that is infected and consequently infect several seedlings. Costa Rica 
asserts that, as a result, once it has been introduced into a territory, AS BVd spreads very easily, 
which is why it found that there was a high probability of ASBVd spreading if the pest were to be 
introduced into its territory.2360 
7.1349.   Costa Rica contends that, while Mexico claims that Costa Rica should have included an 
analysis of th e incidence of instances of the spread of ASBVd in the territory of Costa Rica, this was 
impossible because ASBVd is absent in Costa Rica. Costa Rica also contends that, when assessing 
the probability of entry of ASBVd, it took into account the scientific evidence in De la Torre et al.  
(2009) and Vallejo Pérez et al. (2017) regarding the prevalence of the pest in Mexico, and that no 
official or other study has been conducted in Mexico.2361 Costa Rica adds that, in Mexico, ASBVd is 
not subject to any kind of r egulation.2362 
7.1350.   Costa Rica concludes that, based on the scientific evidence relating to the spread of ASBVd 
once it is established in a territory, it found that there is a risk of the viroid spreading through various 
mechanisms, in particular grafting and seeds used to obtain rootstock. Costa Rica adds that Mexico 
has failed to demonstrate that the conclusions drawn by Costa Rica regarding the high probability 
of spread of ASBVd cannot be objectively justified on the basis of available scientific evidence.2363 
7.1351.   Concerning the probability of spread of ASBVd in Costa Rica, the Panel  observes that six 
factors were considered in Reports ARP -002-2017 and ARP -006-2016: (i)  the suitability of the 
natural or managed environment for the natural spread of the pest; (ii)  the presence of natural 
barriers; (iii)  the potential for movement with commodities or conveyances; (iv)  the intended use 
 
2355 Mexico's second written submission, paras.  155–158. 
2356 Costa  Rica's first written submission, p. 58.  
2357 Costa Rica's first written submission, paras.  5.135 –5.136; second written submission, para. 3.41.  
2358 Costa Rica's first written submission, para. 5.136.  
2359 Costa Rica's first written submission, para. 5.136 (citing Everett and Siebert (2018),  
(Exhibit  CRI-27); and Semancik (2003) , (Exhibit MEX-46)); second written submission, para. 3.42 (citing 
CONSULSANTOS (2010), (Exhibit  MEX-119); Manual for Nurseries (2017), (Exhibit CRI -43); and Cultural 
practices in sowing and managing avocado seeds in Costa Rica  (2019), (Exhibit CRI -44)). 
2360 Costa Rica's second written submission, para. 3.42.  
2361 Costa Rica's first written submission, para. 5.137 (referring to De la Torre et al. (2009), 
(Exhibit  MEX-70); and Vallejo Pér ez et al. (2017), (Exhibit MEX -47)). 
2362 Costa Rica's first written submission, para. 5.138 (citing SINAVEF, Update of the inventory 
list (2010), (Exhibit CRI -13)). 
2363 Costa Rica's first written submission, para. 5.139.  WT/DS524/R  
- 329 - 
  of the commodity; (v)  potential vectors of the pest in the PRA area; and (vi) potential natural 
enemies of the pest in the PRA area. R eports ARP -002-2017 and ARP -006-2016 assigned a high 
probability to the first, second, and sixth factors, a medium  probability to the third and fourth factors, 
and a low probability to the fifth factor.  
7.1352.   Regarding the first factor, i.e. the suitability of t he natural or managed environment for the 
natural spread of the pest , Reports ARP -002-2017 and ARP -006-2016 refer to what is specified under 
the point on the suitability of environment in the section on the probability of establishment. Reports 
ARP-002-2017 and ARP -006-2016 further note that the environment is ideal for the spread of the 
pest, given that host plants are found across the PRA area.2364 
7.1353.   The Panel notes that the above statement is not fully supported by the source cited. 
INEC (2015) presents the results of a national agricultural census conducted in Costa Rica in 2014. 
The document indicates the total number of avocado -growing farms broken down by various criteria, 
including province, and mentions the seven provinces of Costa Rica.2365 In the Panel' s view, 
Reports  ARP-002-2017 and ARP -006-2016 do not contain sufficient explanations in this respect, and 
it cannot be inferred from the document concerning the agricultural census that Costa  Rica's 
environment is considered suitable for the spread of ASBV d. 
7.1354.   This factor is assigned a high probability, which, according to Manual NR -ARP-PO-01_M -01, 
is given where there is evidence that the pest adapts to ecological and climatic conditions similar to 
those found in crop -growing areas in Costa Rica. The Panel n otes that no justification is given for 
the probability value assigned to this element, including an explanation of why there is deemed to 
be evidence that ASBVd adapts to ecological and climatic conditions similar to those found in 
avocado -producing areas  in Costa Rica.  
7.1355.   Moreover, as noted in section 7.4.5.3.4.2  above, in the point on suitability of environment 
referred to by Costa Rica under this factor, in Reports ARP -002-2017 and ARP -006-2016, no 
consideration is given to the different climatic condition s in the various areas of Costa Rica, or to 
seasonal differences in conditions.  
7.1356.   The Panel further recalls that, in the point on the suitability of environment, there was also 
no explanation, duly supported by scientific evidence, of why the climatic condit ions are favourable 
for ASBVd.  
7.1357.   With respect to the second factor, i.e. the presence of natural barriers , Reports ARP -002-
2017 and ARP -006-2016 indicate that the country has no natural barriers to prevent the spread of 
the pest.2366 
7.1358.   This factor is assigned a high probability, which, according to Manual NR -ARP-PO-01_M -01, 
is given where there are not many natural barriers in the country to limit spread. Manual NR -ARP-
PO-01_M -01 also indicates that, in this case, account should be taken of the fact that, in Cost a Rica, 
the probability of this factor would always be deemed to be high because of the country's size and 
geographical conditions.  
7.1359.   No supporting scientific evidence is presented under this point, nor is an explanation given 
for the decision to assign a hi gh probability to this factor, bearing in mind the characteristics of 
ASBVd. In the Panel's view, this element is automatically assigned a high probability, in line with 
the manual.  
7.1360.   Regarding the third factor, i.e. the potential for movement with commoditi es or 
conveyances , Reports ARP -002-2017 and ARP -006-2016 indicate that the product will be distributed 
throughout the country for sale.2367 
 
2364 ARP-002-2017, (Exhibit MEX -84), p. 39  (citing INEC, Crops (2015), (Exhibit CRI -63); and INEC, 
Agricultural statistical atlas (2015), (Exhibit CRI -64)); ARP -006-2016, (Exhibit MEX -85), p. 20 
(citing  INEC,  Crops  (2015), (Exhibit CRI -63); and INEC, Agricultural statistical atlas (2015), (Exhibit CRI -64)). 
2365 INEC, Crops (2015), (Exhibit CRI -63), pp. 119 –122; and INEC, Agricultural statistical atlas (2015), 
(Exhibit  CRI-64), p. 45.  
2366 ARP-002-2017, (Exhibit MEX -84), p. 40; ARP -006-2016, (Exhibit MEX -85), p. 20.  
2367 ARP-002-2017, (Exhibit MEX -84), p. 40; ARP -006-2016, (Exhibit MEX -85), p. 20.  WT/DS524/R  
- 330 - 
  7.1361.   This factor is assigned a medium  probability, which, according to Manual NR -ARP-PO-01_M -
01, is given when one of the following factors is present: there is evidence that the pest is able to 
move quickly (i.e. by more than 10  km per year) from one place to another either of its own accord, 
naturally, or through human activity with commodities or conveyances.  
7.1362.   The Panel notes that Reports ARP -002-2017 and ARP -006-2016 do not elaborate on the 
assertion that fresh avocados will be distributed throughout the country for sale, nor do they provide 
supporting scientific evidence. In addition, no explanati on is given for the decision to assign a 
medium  probability to this element, or, in particular, for why the pest would be able to move quickly 
from one place to another.  
7.1363.   As for the fourth factor, i.e. the intended use of the commodity , Reports ARP -002-2017 and 
ARP-006-2016 indicate that the commodity is intended for consumption.2368 The factor is assigned 
a medium  probability, which, according to Manual NR -ARP-PO-01_M -01, is given when the intended 
use of the commodity, once the pest is established, is consum ption. As in the section on the 
probability of entry of ASBVd, the Panel notes that, despite the fact that, throughout the risk 
assessment, it is assumed that the seed of fruit for consumption will be diverted from its intended 
use, this element is automat ically assigned a medium  probability, in line with the manual, and no 
explanation is given regarding the diversion from intended use in relation to avocados.  
7.1364.   With regard to the fifth factor, i.e. potential vectors of the pest in the PRA area , 
Reports  ARP-002-2017 and ARP -006-2016 indicate that the pest has no known vector.2369 
7.1365.   This factor is assigned a low probability, which, according to Manual NR -ARP-PO-01_M -01, 
is given when there are no vectors in the country but they are likely to be introduced easily.  
7.1366.   Manual NR -ARP-PO-01_M -01 contains no explanation of what is meant by the assertion 
that vectors are likely to be introduced easily. In Reports ARP -002-2017 and ARP -006-2016, no 
supporting scientific evidence is presented, nor is further explanation given as  to whether a vector 
was considered to exist that is likely to be introduced. In this respect, it is worth noting the point 
made by the expert Robert Griffin that, in the case of vectors of ASBVd, there are none, so it is not 
low; it should be zero , so this element is irrelevant to ASBVd.2370 
7.1367.   As for the sixth factor, i.e. potential natural enemies of the pest in the PRA area , Reports 
ARP-002-2017 and ARP -006-2016 indicate that this pest has no natural enemies.2371 
7.1368.   This factor is assigned a high probability, whi ch, according to Manual NR -ARP-PO-01_M -01, 
is given when there are no potential natural enemies in the country and their introduction is unlikely.  
7.1369.   Report ARP -002-2017 cites Ploetz et al.  (2011) to support the claim that ASBVd has no 
natural enemies, while Report ARP -006-2016 refers to Datasheet ARP -001-2014. The Panel finds no 
support for the assertion either in Ploetz et al. (2011) or in the datasheet for the reports. As in the 
case of vectors, the expert Robert Griffin notes, in relation to this factor, t hat there are no natural 
enemies, so there is nothing to observe, and the element is irrelevant to ASBVd.2372 Costa Rica does 
not explain the inclusion of this factor either.  
7.1370.   While two factors that are irrelevant to ASBVd were included in Reports ARP -002-2017 and 
ARP-006-2016, no consideration at all is given to the rate of reproduction and spread of ASBVd. The 
Panel recalls that Mr Griffin expresses the view that the question of the rate of reproduction and 
spread of the pest is a critical factor for spread,  and it is given practically no weight in the analysis 
of spread.2373 
 
2368 ARP-002-2017, (Exhibit MEX -84), p. 40; ARP -006-2016, (Exhibit MEX -85), p. 21.  
2369 ARP-002-2017, (Exhibit MEX -84), p. 40 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 21 (citing Ploetz et al. (2011), (Exhibit MEX -56)). 
2370 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 24.  
2371 ARP-002-2017, (Exhibit MEX -84), p. 40 (citing Ploetz et al. (2011), (Exhibit MEX -56));  
ARP-006-2016, (Exhibit  MEX-85), p. 21.  
2372 Robert Griffin, transcript  of the Panel's meeting with the parties and the experts, day 2, p. 24.  
2373 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 24.  WT/DS524/R  
- 331 - 
  7.1371.   The Panel also recalls Mr Griffin's comments that a key point is that an infected seed is not 
common, and if one is planted or grows volunteer, it results in one infected plant and not an 
outbreak; and that the spread is relatively slow, containment is easy once detected, and the impacts 
are very limited.2374 The expert Pablo Cortese states that introduction is not the same as an 
epidemic.2375 The expert Fernando  Pliego  Alfaro expresses the view that ASBVd is not a pest that 
spreads because it has been in a country for a long time. Mr Pliego Alfaro considers that once farmers 
see a tree displaying symptoms, they uproot it.2376 Mr Pliego Alfaro adds that someone who bought 
avocados and planted t hem in his or her garden could obtain a plant, but if this plant were 
contaminated, the tree would be isolated and the chances of transmitting the disease would be 
low.2377 
7.1372.   In the Panel's view, in Reports ARP -002-2017 and ARP -006-2016, no attention at all is  paid 
to the rate of reproduction and spread of the pest. This is important, bearing in mind the points 
made by the experts that ASBVd spreads relatively slowly and does not spread because it has been 
in a country for a long time, since infected trees are isolated or uprooted.  
7.1373.   The Panel considers that the calculation of the probability of spread of ASBVd in Costa Rica 
was affected by the failure to consider the rate of reproduction and spread of ASBVd. This flaw 
results in an overestimation of the probabili ty of spread of ASBVd in Costa Rica. Moreover, as 
mentioned in section 7.4.5.3.4.2 above, the failure to pay attention to these key factors for ASBVd 
renders the risk assessment inadequate for the viroid.  
7.1374.   The Panel further notes that, during the proceeding s, Costa Rica asserts that , once it has 
been introduced into a territory , ASBVd spreads  very easily , which is why it found that there was a 
high probability of ASBVd spread ing if the pest were to be introduced in to its territory.2378 This is 
neither explaine d nor substantiated in the reports, and seems to contradict what the experts say.  
7.1375.   With regard to Mexico's argument that Costa Rica should have obtained reliable biological 
information from areas where ASBVd currently occurs and then carefully compared the situation in 
the PRA area with these areas and used expert judg ement  to assess the probability of spread, 
this Panel is of the view that Mexico merely states that the studies by De la Torre et al. (2009) and 
Vallejo  Pérez et al. (2017) are not representati ve or relevant for describing the status of ASBVd and 
its disease in Mexico or even in the places where they were conducted. However, as mentioned in 
relation to the factor on the prevalence of the pest in the source area, in the section on the probability  
of entry of ASBVd, Mexico does not refer to other studies that contain the detailed information that 
Mexico considers should have been obtained, nor does it appear that Mexico would have helped 
Costa  Rica to gather more information in this regard. In addi tion, Mexico itself notes that no official 
or other study has been conducted in the country to determine the prevalence of ASBVd and its 
disease throughout Mexican territory, and that only isolated studies are available that cannot be 
representative.2379 
7.1376.   Moreover, the Panel observes that the only source used in the section of Report ARP -002-
2017 on the probability of spread is Ploetz et al. (2011), and there is no mention of the studies by 
De la Torre et al. (2009) and Vallejo Pérez et al. (2017).  
7.1377.   With respect to the parties' arguments regarding the probability of spread related to 
diversion from intended use and spontaneous germination, the Panel refers to its conclusions in 
section 7.4.5.3.3 above.  
 
2374 Robert Griffin's response to Panel question No. 113 for the experts.  
2375 Pablo Corte se, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 25 
and 29-30. 
2376 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 2, 
pp. 32–33. 
2377 Fernando Pliego Alfaro, transcript of the Pan el's meeting with the parties and the experts, day 4, p. 
2. 
2378 Costa Rica's second written submission, para. 3.42. 
2379 Mexico's first written submission, para. 57.  WT/DS524/R  
- 332 - 
  Conclusion on the likelihood  of spread  
7.1378.   Having ana lysed the various factors and elements considered in Reports ARP -002-2017 
and ARP-006-2016 to determine the likelihood of the spread of ASBVd in Costa Rica, the Panel 
concludes that there are the following flaws: 
a. Regarding the scientific basis:  
i. there are a ssertions that do not find support in the scientific evidence;  
ii. there is an assertion that refers to a source, but that source does not support that 
assertion; and  
iii. there is insufficient scientific evidence concerning diversion from intended use and 
spontane ous germination.  
b. Regarding the risk assessor's reasoning:  
i. no explanations are given for assertions made at different points in the analysis and 
how they relate to the conclusions for each probability; and  
ii. no explanations are given for how some of the concl usions at different points of the 
analysis correspond to the criteria in Manual NR -ARP-PO-01_M -01, the methodology 
of which is used.  
7.1379.   In addition, when assessing the probability of spread of ASBVd in Costa Rica, the risk 
assessor includes factors that are i rrelevant to ASBVd, yet pays no attention to the rate of 
reproduction and spread of the pest, which is a critical factor for the spread of ASBVd. Both flaws 
affect the evaluation of the likelihood of ASBVd spreading in the territory of Costa Rica.  
7.1380.   The Pane l considers that the result of assigning risk values, whether high, medium , or low, 
with their respective numerical values (3, 2, or 1), to the various factors, on several occasions 
without the necessary scientific basis, without sufficient reasoned explan ations by the risk assessor, 
and without paying any attention to the rate of reproduction and spread of ASBVd, cannot be 
considered an objectively justifiable qualitative assessment of the likelihood of spread of ASBVd in 
Costa  Rica's territory.  
7.4.5.3.5   Evaluation  of the associated potential biological and economic consequences  
7.1381.   Mexico  submits that Costa Rica should have evaluated the potential for the occurrence of 
the economic and biological consequences associated with the entry, establishment and spread of 
ASBVd  and its disease through the pathway of fresh avocados imported for consumption from 
Mexico.2380 
7.1382.   In Mexico's view, Costa Rica ignored the criteria set out in Manual NR -ARP-PO-01_M -01 
and section 2.3 of ISPM No.  11, as it failed to assess the potential econom ic consequences based on 
quantitative data that would provide monetary values. Mexico contends that Costa Rica merely 
speculated and made unsubstantiated assertions with regard to the potential economic 
consequences of the entry, establishment and spread o f ASBVd and its disease, and simply 
transcribed the risk factors included in the manual, without providing quantitative data or other 
statistical or scientific evidence to corroborate its assertions.2381 
7.1383.   Mexico maintains that Costa Rica failed to justify the  effects listed in the PRAs with scientific 
evidence demonstrating that these consequences were potentially associated with the entry, 
establishment and spread of ASBVd by means of the importation into Costa Rica of fresh avocados 
 
2380 Mexico's first written submission, para. 360.  
2381 Mexico's first written submission, paras.  361-362. WT/DS524/R  
- 333 - 
  for consumption from Mexi co.2382 Mexico argues that the assertions in the PRAs, which in 
Costa  Rica's view denote a high risk, are erroneous and without foundation:  
a. With respect to crop losses, in yield and quality, Mexico submits that Vallejo  Pérez et al. 
(2007) is not a representative study; that the estimates of economic losses cannot be 
reconciled with the fact that Mexico is the world's leading exporter; that the yield 
per hectare is rising year on year; that ASBVd is not a significant pest for local p roducers; 
that ASBVd and its disease affect the yield of an infected tree, but this does not mean that 
the entire orchard or plantation will be infected; and that ASBVd is not considered a 
quarantine pest of economic importance by the world's largest avoca do producers and 
exporters;  
b. As for the effects on export market access, in Mexico's view, the presence of ASBVd and 
its disease has had no effects on export market access because the world's leading 
importers do not regulate ASBVd as a quarantine pest in f resh fruit for consumption;  
c. Concerning changes to producer costs or input demands, including control costs, Mexico 
contends that this factor has no real impact either, since in practice, ASBVd is detected 
through daily checks in commercial orchards, and it  is sufficient to remove the diseased 
tree, without it being necessary to purchase chemical materials or specialized tools for its 
disposal;  
d. With regard to changes to domestic or foreign consumer demand for a product resulting 
from quality changes, accordi ng to Mexico, Costa Rica should have considered that, owing 
to the quality standards of the avocado industry in Mexico, the probability of exporting an 
avocado with symptoms is minimal, and the symptomless variant has no effect on the 
fruit's intrinsic qua lities (quantity of oil, taste or smell of the product) and will therefore 
have no impact on domestic or foreign demand for the product;  
e. Regarding the feasibility and cost of eradication or containment, Mexico argues that, in 
practice, the effects are limi ted to the elimination of the infected tree, and the costs of the 
control and eradication of other avocado diseases are greater than for ASBVd.2383 
7.1384.   Mexico adds that it cannot be said that all pests are of economic importance, since several 
factors determine the behaviour of a pest or disease, and in the case of ASBVd, it is not possible to 
establish its potential economic impact without first conducting epidemiological studies.2384 Mexico 
submits that real -world experience demonstrates that ASBVd has no serious economic consequences 
related to avocado crop losses, in yield and quality, and that the quality, safety and traceability of 
the entire chain involved in the trade in fresh avocado fruit as a whole lessen the actual impact that 
ASBVd may have.2385 Mexico adds that, while there is scientific literature referring to possible losses 
associated with ASBVd, these conclusions cannot be extrapolated without further analysis in the 
manner that Costa Rica did.2386 
7.1385.   Mexico maintains that its avocado industry is  exemplary, since, if a pest whose 
characteristics affected the yield or quality of avocado fruit were found, the Mexican Government 
would take action to prevent damage to the finances and assets of producers ; and that this also 
occurs  in the United  States  and Peru .2387 Mexico also adds, with respect to the effects on market 
access, that it is the largest international market supplier.2388 Mexico further notes that the confirmed 
presence of ASBVd in a municipality of Michoacán in 2009 has had no impact on the y ield.2389 
 
2382 Mexico's first written submission, para. 365.  
2383 Mexico's first written submission, para. 363 (referring to Vallejo Pérez et al. (2017), 
(Exhibit  MEX-47)). 
2384 Mexico's second written submission, para. 159  (citing Affidavit of Salvador Ochoa Ascencio  (2020) , 
(Exhibit  MEX-222)). 
2385 Mexico's second written submission, para. 160. 
2386 Mexico's second written submission, para. 161 (citing Vallejo Pérez et al. (2017), (Exhibit  MEX-47); 
and Saucedo Carabez  et al. (2014), (Exhibit MEX -45)). 
2387 Mexico's second written submission, paras.  162-163. 
2388 Mexico's second written submission, para. 164.  
2389 Mexico's second written submission, paras.  165–167. WT/DS524/R  
- 334 - 
  7.1386.   Regarding the evaluation of the possibility of biological consequences, Mexico asserts that 
the PRAs contain no reference to scientific studies or documentary evidence to corroborate the claims 
made therein, and merely make the following conjectures that are not supported by scientific 
evidence of a link between the biological consequences listed and the importation of fresh avocados 
for consumption from Mexico:  
a. With regard to the negative effect of the introduction of the pest on native a vocado 
germplasm and therefore the detriment o f biodiversity, in Mexico's view, this is irrelevant 
because ASBVd is transmitted only to the Hass variety, and Costa  Rica does not have 
domestic measures to enhance the native variety, nor does it regulate nur series and 
orchards to ensure that certified propagati on material is used. Mexico adds that, in the 
opinion of Dr Salvador Ochoa, in the hypothetical case that ASBVd were introduced in a 
given territory in which native varieties of avocados were located, t hese native varieties 
could not be affected by the mere introduction of ASBVd because the main transmission 
pathway is through agricultural practices and not through a natural process associated 
with the biology of ASBVd2390; 
b. Concerning the uncertainty as to  whether ASBVd can infect other species of plants of the 
genus Persea, Mexico states that the only host of the disease is the subgenus Persea 
americana  Mill.2391, and that Costa Rica failed to substantiate its claim that there is 
uncertainty as to whether th e viroid can infect other plant species, a scenario not backed 
up by the evidence.2392 
7.1387.   Mexico concludes that, since the potential economic and biological consequences associated 
with the entry, establishment and spread of ASBVd through the pathway of fresh a vocados imported 
for consumption from Mexico are not supported by scientific evidence, Costa Rica failed to conduct 
a coherent and objective risk assessment. Thus, the PRAs do not satisfy the second requirement of 
paragraph 4 of Annex A to the SPS  Agreemen t.2393 
7.1388.   Costa Rica  contends that it correctly evaluated the potential economic and biological 
consequences associated with the entry, establishment and spread of ASBVd2394, and that Mexico 
has failed to demonstrate otherwise.2395 Costa Rica submits that Mexico do es not argue that the 
scientific evidence related to the economic significance is unreliable or lacks the rigour required to 
be taken into account.2396 
7.1389.   Costa Rica asserts that it took into account the potential damage in terms of loss of 
production or sales and the costs of control or eradication of the pest in its territory, both of which 
are factors listed in Article  5.3 of the SPS  Agreement . Costa Rica argues that the scientific literature 
attests to the enormous potential economic impact of ASBVd, which r esults in losses in yield and 
quality, and notes that: (i)  Semancik (2003) states that an estimate d yield reduction of about  30% 
was noted for the Fuerte cultivar with sunblotch, and that, in the case of trees acting as symptomless 
carriers of ASBVd, a dramatic reduction (95%) in yield can occur in the Caliente and Reed varieties; 
(ii) Ploetz et al.  (2011) conclude that all infected trees, symptomless or not, usually have greatly 
reduced yields; (iii)  the fresh fruit PRA (2015) recognizes ASBVd as a pest  of high economic 
importance; and (iv)  Vallejo Pérez et al.  (2017) estimated economic losses of up to 
USD 6,650  per hectare per year and crop losses of up to 1,710  kg per hectare.2397 
7.1390.   Costa Rica also states that other potential import markets could impose re strictions on the 
entry of Costa Rican avocados if ASBVd were to enter Costa Rica, and that the changes to demand 
 
2390 Mexico's first written submission, para. 367; second written submission, para. 168.  
2391 Mexico's first written submission, paras.  367–369. 
2392 Mexico's second written submission, para. 168.  
2393 Mexico's first written submission, para. 370.  
2394 Costa Rica's first written submission, p. 60.  
2395 Costa Rica's second written submission, para. 3.48.  
2396 Costa Rica's first written submission, paras.  5.140 -5.141.  
2397 Costa Rica's first written submission, para. 5.142 (citing Semancik (2003), (Exhibit MEX -46), 
p. 171; Ploetz  et al. (2011), (Exhibit MEX -56), p. 5; Picado Salmerón, Fresh fruit PRA (2015),  
(Exhibit MEX -61); and Ncango  et al. (2014), (Exhibit CRI -8), p. 6 9); second written submission, para. 3.51 
(citing Semancik (2003), (Exhibit  MEX-46), p. 171; Ploetz et al. (2011), (Exhibit MEX -56), p. 5; Picado 
Salmerón, Fresh fruit PRA (2015), (Exhibit  MEX-61); and Vallejo Pérez et al. (2017), (Exhibit MEX -47)). WT/DS524/R  
- 335 - 
  for the product that could result from ASBVd becoming established in Costa Rica are obvious in light 
of the symptoms that it produces.2398 
7.1391.   Costa  Rica maintains that the scientific literature attests to the high costs of control and 
eradication of the pest, and agrees that the main problems associated with the disease are the 
handling costs. In Costa Rica's view, since there is no cure for the dise ase, the only solution is to 
remove all infected trees that display symptoms and conduct tests to detect symptomless infected 
trees in order to destroy them as well. Costa Rica submits that it therefore found the potential for 
biological consequences and t he serious economic impact that would result from the introduction 
of ASBVd.2399 
7.1392.   Regarding the potential biological consequences, Costa Rica contends that it took into 
account the fact that the avocado ( Persea americana Mill.) is the only host of ASBVd in th e natural 
environment, which reduces the probability of biological consequences stemming from the infection 
of other plant species, but found that the introduction of the pest would have a negative impact on 
native avocado germplasm and  would therefore be detrimental to biodiversity. Costa Rica adds that 
there is uncertainty regarding the potential for ASBVd to infect other plant species of the 
genus  Persea , that, in any event, the introduction of the pest would have a negative impact on 
avocado germplasm, and that Mexico's assertion that ASBVd is transmitted only to the Hass variety 
contradicts the scientific literature, which mentions, for example, the Caliente and Reed varieties.2400 
7.1393.   Costa Rica concludes that it found potential economic and biological consequences flowing 
from the entry, establishment and spread of ASBVd, and that Mexico has failed to demonstrate that 
Costa  Rica's conclusions regarding the medium  probability of such an impact cannot be objectively 
justified on the basis of av ailable scientific evidence.2401 
7.1394.   The Panel  recalls that, in paragraph 4 of Annex A, the first type of risk assessment is 
defined as the evaluation of the likelihood of entry, establishment or spread of a pest or disease 
within the territory of an importing M ember according to the sanitary or phytosanitary measures 
which might be applied, and of the associated potential biological and economic consequences . 
7.1395.   In Report ARP -002-2017, the section on potential economic consequences includes a list of 
pest effects.  
7.1396.   Report ARP -002-2017 states that the pest is significant , bearing in mind that it will have 
effects such as:  
a. Crop losses, in yield and quality;  
b. Effects on export market access;  
c. Changes to producer costs or input demands, including control costs;  
d. Changes to domestic or foreign consumer demand for a product resulting from 
quality  changes;  
e. Feasibility and cost of eradication or containment;  
 
2398 Costa Rica's first written submission, para. 5.143 (citing EPPO Global Database, World distribution  
(2019), (Exhibit MEX-48); Ochoa Ascencio (2013), (Exhibit CRI -11); Geering (2018), (Exhibit MEX -43); Everett 
and Siebert (2018), (Exhibit CRI -27); and Sauc edo Carabez et al. (2014), (Exhibit MEX -45)). 
2399 Costa Rica's first written submission, para. 5.143 (citing EPPO Global Database, World distribution  
(2019), (Exhibit MEX-48); Ochoa Ascencio (2013), (Exhibit CRI -11); Geering (2018), (Exhibit MEX -43); Everett  
and Siebert (2018), (Exhibit CRI -27); and Saucedo Carabez et al. (2014), (Exhibit MEX -45)); second written 
submission, para. 3.51 (citing Saucedo Carabez et al. (2014), (Exhibit MEX -45); Hadidi et al. (2003), 
(Exhibit  CRI-121); Picado Salmerón, Fresh fruit PRA (2015), (Exhibit MEX -61); Coit (1928), (Exhibit CRI -9); 
and I.E. Suarez, R.A. Schnell, D.N. Kuhn and R.E. Lits, "Micrografting of ASBVd -infected Avocado ( Persea 
americana ) plants", Plant Cell Tissue and Organ Culture , Vol. 80 (2005)  (Suarez et al. (2005) ), 
(Exhibit  CRI-136)). 
2400 Costa Rica's first written submission, para. 5.144 (citing Semancik (2003), (Exhibit MEX -46), 
p. 171); second written submission, para. 3.49.  
2401 Costa Rica's first written submission, para. 5.145.  WT/DS524/R  
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  f. Resources needed for additional research and advice2402; 
g. Vallejo Pérez et al.  (2017) estimate that the pest could cause econ omic losses of 
USD 6,650 per hectare per year2403; 
h. Vallejo Pérez et al.  (2017) estimate that the crop yield could fall by between 730  kg/ha 
and 1,710  kg/ha (from an average yield of 9,850  kg/ha in Mexico).2404 
7.1397.   Report ARP -006-2016 also states that the pest is significant , bearing in mind that it will 
have effects such as those listed in subparagraphs (a) to (f) of the preceding paragraph.2405 The 
content of subparagraphs (g) and (h) of the preceding paragraph , which refer to Vallejo Pérez et al. 
(2017), is not inc luded in Report ARP -006-2016. It is not clear why, in Report ARP -006-2016 
concerning fresh avocados for consumption from several countries with ASBVd, the data from Vallejo 
Pérez et al. (2017), used in Report ARP -002-2017, are not used in the section on th e assessment of 
the potential economic consequences of the entry, establishment and spread of ASBVd in Costa Rica.  
7.1398.   The only statements for which evidence is cited, and which are quantitative in nature, are 
that the pest may cause economic losses of USD  6,650 per hectare per year and that the crop yield 
would fall by between 730  kg/ha and 1,710  kg/ha (from an average yield of 9,850  kg/ha in Mexico). 
The other factors are mentioned but not explained or supported by evidence.  
7.1399.   Vallejo Pérez et al. (2017) note t hat the study found that, in Michoacán, there was a 14% 
incidence of ASBVd and that this could increase to approximately 25 –30% over a 10 -year period, 
causing losses of 730 -1,710  kg/ha (from an average national yield of 9,850  kg/ha) in orchards at 
full pro duction, equal to losses of USD  2,800 to USD  6,650 per hectare per year.2406 The Panel notes 
that the data used by Costa Rica coincide with the statements made by Vallejo Pérez et al. (2017), 
but Costa Rica has mentioned only the highest figure in the range of potential economic losses 
in USD, and that these are estimates based on  a study of a municipality in Michoacán, Mexico, and 
predicated on an increase in the incidence of ASBVd to up to 25 –30% over a 10 -year period.  
7.1400.   Reports ARP -002-2017 and ARP -006-2016 also state that, in countries where ASBVd is 
present, reported average cro p losses have been 30%; on average, 80% of fruits are rejected at 
the packing stage; and there has been a significant reduction in the yield of symptomless 
infected  trees.2407 
7.1401.   To support these assertions, Reports ARP -002-2017 and ARP -006-2016 refer to 
Datash eet ARP-001-2014. Support is not found in the datasheet for the claim that, on average, 
80% of fruits are rejected at the packing stage.  
7.1402.   It is noted in the datasheet that Saucedo Carabez et al. indicate that there was a significant 
reduction in the yield o f symptomatic sunblotch -infected trees2408; that the yield of asymptomatic 
Hass trees was reduced by 15–30%; and that the yield of symptomatic trees can fall by as much 
as 75%.2409 The Panel observes that, according to the datasheet, the yield of both symptoma tic and 
asymptomatic trees is reduced, but the figure is higher for symptomatic trees. According to the 
source cited, namely Saucedo Carabez et al. (2014), in the study that was carried out, the reduction 
among the symptomatic Hass trees was 76% in the fir st year and 67% in the second year. For the 
asymptomatic Hass trees, the figures were 15% and 30%.2410 The data in the factsheet are therefore 
supported by the source cited, but in the risk assessment, the highest figures reported in the 
aforementioned study  are presented as an average, and an assertion is made that could give the 
impression that the reduction in yield is greater for asymptomatic trees than for symptomatic trees.  
 
2402 ARP-002-2017, (Exhibit MEX -84), pp. 40 -41. 
2403 ARP-002-2017, (Exhibit MEX -84), p. 41 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
2404 ARP-002-2017, (Exhibit MEX -84), p. 41 (citing Vallejo Pérez et al. (2017), (Exhibit MEX -47)). 
2405 ARP-006-2016, (Exhibit MEX -85), pp. 21 -22. 
2406 Vallejo Pérez et al. (2017), (Exhibit MEX -47), p. 124.  
2407 ARP-002-2017, (Exhibit MEX -84), p. 41; ARP -006-2016, (Exhibit MEX -85), pp. 21 -22. 
2408 ARP-002-2017, (Exhibit MEX -84), p. 63 (citing Saucedo Carabez et al. (2014), (Exhibit ME X-45)); 
ARP-006-2016, (Exhibit MEX -85), p. 47 (citing Saucedo Carabez et al. (2014), (Exhibit MEX -45)). 
2409 ARP-002-2017, (Exhibit MEX -84), p. 63; ARP -006-2016, (Exhibit MEX -85), p. 47.  
2410 Saucedo Carabez et al. (2014), (Exhibit MEX -45), p. 5.  WT/DS524/R  
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  7.1403.   Moreover, the figures given in the section of the reports on potential economic 
consequences are extrapolated to the case of Costa Rica. It is not explained how these figures are 
applicable to Costa Rica's circumstances, including its environmental, production, and 
control  conditions.  
7.1404.   The Panel also observes  that, during the proceedings, Costa Rica has referred to other 
sources, including Semancik (2003) and Ploetz et al.  (2011), to support its assertion about the 
economic impact of ASBVd, but these sources are not included in the reports.  
7.1405.   Regarding the biological consequences , Reports ARP -002-2017 and ARP -006-2016 indicate 
that: 
a. The introduction of ASBVd would have a negative effect on native avocado germplasm and 
would therefore be detrimental to biodiversity;  
b. There is uncertainty about the potential for this viroid to infect  other plant species of the 
genus Persea , such as the aguacatillo ( Persea caerulea ), a tree on which quetzal birds 
feed, creating potential biodiversity consequences. Report ARP -002-2017 adds that, while 
ASBVd has been transmitted to Persea schiedeana  only as part of scientific studies, the 
possibility cannot be ruled out that, in response to higher inoculum pressure, it could be 
transmitted to other species of the genus Persea  and even native Lauraceae  species.2411 
7.1406.   The Panel notes that none of the above statements on the associated biological 
consequences is supported by evidence.  
7.1407.   In view of the foregoing, as far as the potential economic consequences are concerned, 
the Panel finds that Reports ARP -002-2017 and ARP -006-2016 refer to effects for which no 
explanation or justification can be found. In addition, there are statements that refer to two sources 
and contain quantitative data, but these data are extrapolated to the case of Costa Rica with no 
explanation of how they are applicable to Costa Rica's ci rcumstances. As to the potential biological 
consequences, the statements in Reports ARP -002-2017 and ARP -006-2016 are not substantiate . 
7.1408.   The Panel observes that, in the case of the associated biological and economic 
consequences, the relevant definition of "risk assessment" in Annex A to the SPS  Agreement  refers 
to an evaluation of the potential  consequences .2412 While it is an evaluation of the potential  
consequences , there still needs to be an evaluation , which is missing from Reports ARP -002-2017 
and ARP -006-2016.  
7.1409.   The Panel therefore considers that Costa Rica has not conducted an evaluation of the 
associated potential biological and economic consequences, and this constitutes  a flaw in the risk 
assessment in Reports ARP -002-2017 and ARP -006-2016.  
7.4.5.3.6   Other gener al arguments concerning the evaluation of the likelihood of entry, 
establishment and spread in Reports ARP -002-2017 and ARP -006-2016  
7.1410.   In this section, the Panel  will address Mexico's general arguments concerning the 
evaluation of the likelihood of entry, es tablishment and spread in Reports ARP -002-2017 
and ARP-006-2016, which relate to scientific evidence, and a general argument concerning 
uncertainty, which also relates to the evaluation of these three probabilities in the reports.  
7.1411.   As to the general argumen ts concerning scientific evidence , Mexico  submits that 
Costa  Rica should have based its PRAs on sufficient scientific evidence related specifically to the 
 
2411 ARP-002-2017, (Exhibit MEX -84), p. 41; ARP -006-2016, (Exhibit MEX -85), p. 22.  
2412 With regard to the evaluation of the economic and biological consequences, the Panel notes that, 
while the definition of "risk assessment" relevant to this dispute in paragrap h 4 of Annex A to the 
SPS Agreement requires an evaluation of the associated potential biological and economic consequences, 
ISPM No. 5 defines "pest risk assessment (for quarantine pests)" as "[e]valuation of the probability of the 
introduction and spread  of a pest and the magnitude of the associated potential economic consequences", 
and ISPM No. 11 states that a risk assessment includes "an evaluation of the probability of pest entry, 
establishment, and spread, and of their potential economic consequences ". (ISPM No. 5, (Exhibit MEX -74), 
p. 14; and ISPM No. 11, (Exhibit MEX -77), p. 6).  WT/DS524/R  
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  entry, establishment and spread of ASBVd through the importation of fresh avocados for 
consumption fr om Mexico2413, and that it should have based its probability assessment on scientific 
evidence demonstrating that the importation of fresh avocados for consumption from Mexico is a 
pathway for the entry, establishment and spread of ASBVd and its disease in t he territory of 
Costa  Rica.2414 Mexico asserts that Costa Rica failed to assess, using specific scientific evidence, the 
probability of entry, establishment and spread of ASBVd through the pathway of fresh avocados 
imported for consumption from Mexico or another country where ASBVd is p resent.2415 
7.1412.   Mexico contends that the risk assessment analysis should have determined the probability 
that ASBVd would be introduced, established and spread specifically through fresh avocados 
imported for human consumption2416, but that Costa Rica's PRA fails to evaluate the introduction of 
ASBVd through fresh avocados for human consumption, instead it focuses more generally on 
introduction allegedly through the diversion from intended use of discarded pits.2417 
7.1413.   For Mexico, to meet the specificity requirement in the risk assessment, it is not sufficient 
to take into account scientific literature that addresses the disease or pest in a general manner. 
Rather, there needs to be scientific evidence that specifically focuses on the disease, pathway, host, 
or vector th at is being evaluated.2418 
7.1414.   In its arguments under Article  5.2 of the SPS  Agreement  concerning available scientific 
evidence, Mexico notes that the conclusions of the PRAs are not based on relevant scientific evidence, 
since: (i)  there is no scientific eviden ce in the PRAs to support the claim in the risk assessment that 
there is a high probability of entry, establishment and spread of ASBVd through the pathway of fresh 
avocados imported for consumption from Mexico, and some of the bibliographic sources are st udies 
and general opinions on ASBVd that are not specific to the risk scenario and pathway of entry, 
establishment and spread considered by Costa Rica; (ii)  the PRAs rely on isolated evidence that has 
no scientific or statistical basis and was developed wi thout consideration for scientific criteria and 
methodologies; and (iii)  the PRAs did not involve tests, experiments, surveys, or any other tool that 
would enable the collection of scientific and statistical data to help to substantiate the conclusions 
that they contain.2419 
7.1415.   Mexico asserts that the bibliographic sources cited in the PRAs constitute scientific evidence 
containing conclusions that are erroneous and out of context. Mexico transcribes in a table some of 
the statements made in the PRAs that, in it s view, cannot be considered as scientific evidence that 
has been applied to the specific hypothesis put forward by Costa Rica, since there are translation 
errors and the statements are petitiones principii  with no scientific basis.2420 
7.1416.   In addition, accordin g to Mexico, Costa Rica should have demonstrated the applicability of 
the bibliography to the case in question and, where the lack of specificity of the former did not help 
in reaching a particular conclusion, it should have carried out quantitative or qua litative analysis to 
support its conclusions, and made sure to review all existing scientific evidence up to 2017.2421 
Mexico asserts that Costa Rica did not use a scientific basis specifically related to the pathway of 
fresh avocados imported for consumption.2422 
7.1417.   Mexico adds that, throughout the risk analysis, Costa Rica makes assertions and cites 
evidence that have no sci entific basis and are not supported by clear statistical sources.2423 Mexico 
notes that reference is made to CONSULSANTOS (2010) and CONSULSANTOS (2017), which it 
questions because: the name of the person who gave the expert testimony is omitted from the 
bibliography, casting doubt on the statement's credibility; the census report contains references to 
 
2413 Mexico's first written submission, para. 278.  
2414 Mexico's first written submission, para. 279.  
2415 Mexico's second written submission, para. 114.  
2416 Mexico's opening statement  at the first meeting of the Panel, para. 30.  
2417 Mexico's opening statement at the first meeting of the Panel, para. 34.  
2418 Mexico's second written submission, para. 117.  
2419 Mexico's first written submission, para. 432.  
2420 Mexico's first written submission, paras.  433-434; second written submission, para. 192.  
2421 Mexico's first written submission, para. 438.  
2422 Mexico's second written submission, para. 189.  
2423 Mexico's first writ ten submission, para. 436.  WT/DS524/R  
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  a person, with no additional information provided to corroborate the information2424; and these are 
documents prepared by a commercial legal entity not engaged in research activity.2425 Mexico states 
that the references based on documents CONSULSANTOS (2010) and CONSULSANTOS (2017) are 
therefore not objective or scientific.2426 
7.1418.   Mexico adds that it is not sufficient to cite scientific literature; it must be demonstrated and 
explained, in an objective and coherent manner, why the literature is applicable and specific to the 
case in question. Mexico presents a comparative table displaying the literature cited by Costa Rica 
in its response to Panel question No.  19.2427, 2428 
7.1419.   Mexico submits that Costa Rica took some of the scientific testimonies cited, including those 
of Drs Salvador Ochoa Ascencio, Daniel Téliz, and Rodolfo de la Torre, out of context and adapted 
them so that they corroborated its assumptions.2429 
7.1420.   Mexico also contends that Costa Rica failed to consider other scientific evidence that should 
have been used when evaluating the likelihood of entry of ASBVd into the territory of Costa Rica, as 
there were available studies related to the risk of entry, establ ishment and spread of ASBVd through 
the pathway of fresh avocados imported for consumption.2430 In Mexico's view, the Panel should 
assess  the "Evaluation of the risk posed by fresh avocado fruit from Mexico and destined for Costa 
Rica as a pathway for the en try of sunblotch viroid" (Fresh fruit PRA), which determines, based on 
an arithmetic formula, that the probability of transmission through the pathway of fresh avocados 
imported for consumption from Mexico is minimal, therefore the resulting risk is neglig ible.2431 
Mexico asserts that the PRAs do not contain any reasoning stemming from a statistical analysis and 
based on a scientific methodology. According to Mexico, Costa Rica analysed the scientific evidence 
incorrectly and failed to carry out an objective,  scientific, and specific evaluation of the probability 
of entry of ASBVd, since Mexico considers the high probability value to be arbitrary, and that a 
proper evaluation would conclude that the risk is negligible.2432 
7.1421.   Mexico adds that the fresh fruit PRA se ts out the factors that should have been considered 
by the Costa Rican phytosanitary authority and makes it clear that: (i)  fresh Hass avocado fruit do 
not possess the characteristics to be used as a rootstock; (ii)  the Hass avocado pit is very unlikely 
to germinate successfully, since removing it from the fruit exposes it to drying and rotting, and it 
comes from a fruit that did not fully ripen on the tree; (iii)  a seedling from a germinated avocado 
pit will not be very hardy, will take 12 years to produce  its first flowers and 15 years to bear its first 
fruits; (iv)  pollen is not a vector for the transmission of the viroid; and (v)  the transmission of the 
disease is contingent on ASBVd being present in the embryo of a viable seed.2433 According to 
Mexico, th e fresh fruit PRA should be taken into consideration to the extent that it elaborates on the 
majority of the concerns that Costa Rica covers in its PRAs, mainly with respect to diversion from 
intended use. The fact that it does not address the risks arisin g from waste does not invalidate the 
rest of the evaluation.2434 
 
2424 Mexico's first written submission, para. 436 (referring to CONSULSANTOS (2010),  
(Exhibit  MEX-119); and  CONSULSANTOS (2017), (Exhibit MEX -118)). 
2425 Mexico's first written submission, para. 437.  
2426 Mexico's first written submission, para. 437 (referring to CONSULSANTOS (2010),  
(Exhibit  MEX-119); and  CONSULSANTOS (2017), (Exhibit MEX -118)); second written submission, para. 192 
(referring to CONSULSANTO S (2010), (Exhibit MEX -119); and CONSULSANTOS (2017), (Exhibit MEX -118)). 
2427 Mexico's second written submission, para. 191 (citing Mexico, List of scientific evidence used in 
Costa Rica's PRAs , (Exhibit MEX -233)). 
2428 In its question No. 19, the Panel asked Costa Rica to submit all the documents mentioned in the 
bibliography of Report ARP -002-2017 and its datasheet , which had not yet been submitted as exhibits.  
2429 Mexico's second written submission, paras. 194 –197 (citi ng Affidavit of Salvador Ochoa Ascencio  
(2020) , (Exhibit  MEX-222); Affidavit of Dr Daniel Téliz Ortiz  (2019) , (Exhibit MEX -187); and Affidavit of Rodolfo 
de la Torre  Almaraz  (2020) , (Exhibit MEX -227)). 
2430 Mexico's first written submission, p. 74; second wri tten submission, para. 122.  
2431 Mexico's first written submission, paras.  310-311 (referring to Picado Salmerón, Fresh fruit PRA 
(2015), (Exhibit MEX -61)). 
2432 Mexico's first written submission, paras.  312-313. 
2433 Mexico's second written submission, para. 122.  
2434 Mexico's second written submission, para. 123.  WT/DS524/R  
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  7.1422.   Costa Rica  indicates that it conducted its risk assessment on the basis of available scientific 
evidence concerning ASBVd.2435 For Costa Rica, the only apparent aim of Mexico's table is to 
basele ssly discredit the scientific literature underpinning Costa Rica's PRAs.2436 
7.1423.   Regarding the fresh fruit PRA (2015), Costa Rica argues that it is a risk assessment by 
Mexico for Costa  Rica, therefore it is not a study in which the party that commissioned it ha d no 
commercial interest.2437 Costa Rica adds that the mathematical formula in the study merely 
reproduces, in the form of an equation, the elements of any risk assessment, and that there are no 
statistics, which shows that not everything can be evaluated using a purely statistical approach.2438 
Costa Rica also adds that the study disregards essential elements that explain the risk in this case, 
such as the ri sks arising from waste, and acknowledges that a seed left in normal temperature and 
humidity conditions remains viable for several days after its removal from the fruit. Moreover, 
Costa  Rica asserts that the study ignores the widespread agricultural practi ce in Costa Rica of 
grafting Hass onto Hass rootstocks.2439 
7.1424.   The Panel  observes that Reports ARP -002-2017 and ARP -006-2016 contain a variety of 
sources, including scientific articles, databases, and agricultural censuses.  
7.1425.   The expert Robert Griffin considers t hat the sources of evidence used in Costa Rica's PRA 
are documented  and that the evidence is clearly linked to the relevant aspects of the PRA. He is of 
the opinion that there is an ample bibliography for Costa Rica's PRA and that a lot of scientific 
information is provided.2440 The expert Fernando Pliego Alfaro also believes the sources to be 
adequat e.2441 The expert Ricardo  Flores  Pedauyé state s that the bibliographic selection is correct 
and encompasses existing literature on ASBVd.2442 
7.1426.   The Panel considers that most of the scientific evidence in Reports  ARP-002-2017 
and ARP-006-2016 comes from respected sources, such as scientific articles publish ed in scientific 
journals. Accordingly, most of the scientific evidence cited in these reports can in itself be considered 
legitimate. This is a separate issue from the way in which the scientific evidence was used by the 
risk assessor, or the lack of scie ntific evidence on some issues, which the Panel has already analysed.  
7.1427.   The Panel further notes that Mexico's table refers mainly to aspects related to the way in 
which the evidence was used, which has been considered in the Panel's analysis of the evaluatio n of 
the likelihood of entry, establishment and spread of ASBVd in Reports ARP -002-2017 and ARP -006-
2016.2443 
7.1428.   The only one of Mexico's arguments that does relate to the legitimacy of the scientific 
evidence is that the references based on documents CONSULSAN TOS (2010) and CONSULSANTOS 
(2017) are neither objective nor scientific.2444 In its table, Mexico states that CONSULSANTOS 
constitutes evidence, but not scientific evidence.2445 The Panel has already addressed this particular 
evidence in section 7.4.5.3.3  above.  
7.1429.   The bibliographies of Reports ARP -002-2017 and ARP -006-2016 appear to include scientific 
sources that are sufficiently specific to avocados and ASBVd. In this particular case, the Panel does 
not see the need for the scientific evidence to be as specific as  Mexico appears to suggest in stating 
that Costa Rica should have based its PRAs on sufficient scientific evidence related specifically to the 
 
2435 Costa Rica's first written submission, para. 5.152.  
2436 Costa Rica's first written submission, para. 5.180.  
2437 Costa Rica's first written submission, para. 5.123 (referring to Picado Salmerón, Fresh fruit PRA 
(2015), (Exhibit MEX -61)). 
2438 Costa Rica's first written submission, para. 5.124.  
2439 Costa Rica's first written submission, para. 5.125.  
2440 Robert Griffin's re sponse to Panel question No. 153 for the experts;  Robert Griffin, transcript of the 
Panel's meeting with the parties and the experts, day 2, pp. 9 -10. 
2441 Fernando Pliego Alfaro's response to Panel question No. 91(a) and (b) for the experts.  
2442 Ricardo Flores  Pedauyé's response to Panel question No. 91(a) and (b) for the experts.  
2443 The Panel recalls that it has found, throughout the assessment of probabilities in 
Reports  ARP-002-2017 and ARP -006-2016, assertions that do not find support in the scientific evide nce and 
others that refer to a source, but that source does not support those assertions or does so only partially.  
2444 Mexico's first written submission, para. 437. 
2445 Mexico's first written submission, para. 434. WT/DS524/R  
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  entry, establishment and spread of ASBVd through the importation of fresh avocados for 
consumption from Mexico.  
7.1430.   The Panel is of the view that the need for the evidence to be specific depends on the 
hypothesis to be demonstrated. The Panel would like to illustrate this point by noting the difference 
between the present case and previous ones that have addressed the is sue of the specificity of the 
risk assessment.  
7.1431.   In EC – Hormones , the European  Communities  presented scientific studies and opinions 
indicating that the hormones at issue in that case had carcinogenic potential.2446 The Appellate  Body 
found that the studies c onstituted general studies which showed the existence of a general risk of 
cancer, but did not focus on and did not address the particular kind of risk at stake, i.e. the 
carcinogenic or genotoxic potential of the residues of those hormones found in meat d erived from 
cattle to which the hormones had been administered for growth promotion purposes, as is required 
by paragraph  4 of Annex A to the SPS  Agreement .2447 The Appellate Body therefore concluded that 
the studies were relevant but were not sufficiently s pecific to the case at hand.2448, 2449 
7.1432.   In Japan – Apples , the Panel found that, although Japan's PRA made determinations as to 
the entry, establishment and spread of the disease in question through a collection of various hosts 
(including apple fruit), it fail ed to evaluate the entry, establishment or spread of the disease through 
apple fruit as a separate and distinct vector.2450 In that dispute, the United  States  argued that 
Japan's PRA failed to focus specifically on the product at issue, namely fresh apple fr uit. The panel 
observed that the PRA described the risk of entry or spread of the disease through various possible 
hosts (or different types of plants), including but not exclusively apple fruit, and that only one 
paragraph  specifically addressed fresh fru it. The panel noted that the conclusion of the PRA did not 
purport to relate exclusively to the introduction of the disease through apple fruit, but rather more 
generally, apparently, through any susceptible host/vector, and that, in that case, the risk va ried 
considerably according to the host plant.2451 The Appellate Body considered that, given that the 
measure at issue related to the risk of transmission of the disease through apple fruit, in an 
evaluation of whether the risk assessment was sufficiently specific to the case at hand, the nature 
of the risk addressed by the measure at issue is a factor to be taken into account.2452 The Appellate 
Body concluded that Japan's PRA evaluation of the risks associated with all possible hosts taken 
together was not sufficiently specific to qualify as a "risk assessment" under the SPS  Agreement  for 
the evaluation of the likelihood of entry, establishment or spread of the disease in question in Japan 
through apple fruit.2453 
7.1433.   The Panel notes that, in the prese nt case, Reports  ARP-002-2017 and ARP -006-2016 
contain risk assessments for the specific pathway of fresh avocados for consumption, so the pathway 
can be considered sufficiently specific. The Panel also notes that the risk assessment in 
 
2446 Appellate Body Report, EC – Hormones , para . 199. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para. 558.  
2447 Appellate Body Report, EC – Hormones , para. 200. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para. 558.  
2448 Appellate Body Report, EC – Hormones , para. 200.  
2449 The Appellate Body in US/Canada – Continued Suspension  also addressed the issue of the specificity 
required of a risk assessment. The Appellate Body noted that the particular risk being assessed by the 
European  Communities was the possibility of  certain adverse effects from the presence of residues of 
oestradiol -17β in bovine meat treated with this hormone, and stated that the European  Communities  were not 
required to establish a direct causal relationship between the possibility of adverse health effects and the 
residues of oestradiol -17β in bovine meat. Rather, it was sufficient for them to demonstrate that the additional 
human exposure to residu es of oestradiol -17β in meat from treated cattle is one of the factors contributing to 
the possible adverse health effects. The Appellate Body explained that the risk assessment must be 
"appropriate to the circumstances", which suggests that the scientific  inquiry must take due account of 
particular methodological difficulties posed by the nature and characteristics of the particular substance and 
risk being evaluated. However, that does not excuse the risk assessor from evaluating whether there is a 
connec tion between the particular substance being evaluated and the possibility that adverse health effects 
may arise. (Appellate Body Reports, US/Canada – Continued Suspension , para. 562).  
2450 Appellate Body Report, Japan – Apples , para. 200 (citing Panel  Report , Japan – Apples , 
paras.  8.268 –8.271).  
2451 Panel  Report , Japan – Apples , paras.  8.263 -8.271; Appellate Body Report, Japan – Apples , 
paras.  200-203. 
2452 Appellate Body Report, Japan – Apples , para. 203.  
2453 Appellate Body Report, Japan – Apples , paras.  203 and 206. WT/DS524/R  
- 342 - 
  Reports  ARP-002-2017 and ARP -006-2016 refers to evidence on ASBVd and avocados in particular. 
Regardless of the flaws in the use of scientific evidence, part of the aforementioned evidence 
specifically addresses the pest or disease in question and the product or host concern ed. 
7.1434.   In the Panel's view, the analysis of the pathway of fresh fruit imported for consumption 
from Mexico implies the need for certain specific considerations , such as the volume and frequency 
of imports of fresh avocados for consumption from Mexico, the qu ality control procedures in place 
in Mexico to discard symptomatic fruit, the distribution of fresh avocado fruit imports in Costa  Rica's 
markets, the product's intended use, and, according to Costa Rica, diversion from intended use and 
spontaneous germina tion. Analysis of these issues would give the risk assessment the specificity 
required in this case and would have an impact on the magnitude of the risk of the particular pathway 
(i.e. fresh avocado fruit).  
7.1435.   However, Mexico maintains that even more specifi city is required. Mexico states that 
Costa  Rica failed to evaluate, using specific scientific evidence, the probability of entry, 
establishment and spread of ASBVd through the pathway of fresh avocados imported for 
consumption from Mexico or another countr y where ASBVd is present.2454 In the Panel's view, in the 
present case, there are issues such as the relationship or interaction between ASBVd and its host 
(the avocado) that do not appear to be affected by whether the avocados are fresh avocados in 
general or fresh avocados imported for consumption. Thus, the scientific evidence in 
Reports  ARP-002-2017 and ARP -006-2016 related to these aspects may be considered relevant and 
sufficiently specific, although the Panel recalls that it found flaws in the scientif ic basis of the reports 
with respect to some of these issues.  Moreover, Mexico does not appear to refer to any scientific 
evidence specific to fresh fruit for consumption imported from Mexico or another country 
where  ASBVd is present, other than in its fre sh fruit PRA (2015)2455, nor does it explain how the 
scientific findings would be affected by the consideration of fresh fruit for consumption imported 
from Mexico in particular.  
7.1436.   With regard to Mexico's argument concerning the fresh fruit PRA (2015), the Pan el notes 
that a risk assessment could consider, at the initiation stage, other PRAs carried out with respect to 
the pathway or pest at issue.2456 The Panel observes, however, that the fresh fruit PRA (2015) was 
prepared by an agricultural engineer, referred to as a national consultant on phytosanitary matters, 
and not by an NPPO. In its background section, the study refers to Costa Rica's emergency measures, 
and later sections of the document deal with the concept of a phytosanitary emergency, the absence 
of the viroid in Costa Rica as a fundamental argument for the measure in place, the order of factors 
affecting the technical justification, and the impact of the proposed measure on international trade. 
In addition, the document contains an Annex entitled "Analysis of unacceptable arguments by the 
SFE authorities". In the Panel's view, that risk assessment is a response by Mexico to  Costa  Rica's 
2015 emergency measures and not a neutral study based on objective research. Therefore, Costa 
Rica canno t reasonably be expected to be guided by the fresh fruit PRA (2015) in its risk assessment.  
7.1437.   In light of the foregoing, and without prejudice to the Panel's findings in its analysis of the 
risk assessment that there are flaws in the scientific basis used and in the risk assessor's reasoning, 
the Panel disagrees with Mexico's argument regarding the  level of specificity required of all the 
scientific evidence in the risk assessment at issue. The Panel also disagrees with Mexico's argument 
concerning the fresh fruit PRA (2015).  
7.1438.   However, the Panel observes a general flaw related to the scientific basis  of 
Reports  ARP-002-2017 and ARP -006-2016: the lack of an explanation of the quality of the evidence.  
7.1439.   As noted above, the expert Robert Griffin considers that the sources of evidence used in 
Costa  Rica's  PRA are documented and that the evidence is clearly linked to the relevant aspects of 
the PRA. Nevertheless, Mr Griffin notes that Costa Rica does not offer any observations on the quality 
of the evidence.2457 In his opinion, there is an ample bibliography for Costa Rica's PRA, and a lot of 
 
2454 Mexico's second written submission, para. 114.  
2455 Mexico's second written submission, para. 122.  
2456 It should be noted that ISPM No. 11 refers to the consideration of previous PRAs . (ISPM No. 11, 
(Exhibit  MEX-77), p. 9).  
2457 Robert Griffin's response to  Panel question No. 135 for the experts.  WT/DS524/R  
- 343 - 
  scientific informa tion is provided, but the quality of that information needs to be studied by the risk 
analyst.2458 
7.1440.   Mr Griffin states that if we do not have any analysis of the quality of the evidence, we do 
not know how important the evidence is to the conclusions, which is  a key issue and goes hand in 
hand with the issue of uncertainty, because we do not want to assume that all the evidence is equally 
important, and if it is, that should be stated, but typically that is not the case. For  Mr Griffin, the 
lack of comments wil l create vulnerabilities in the PRA and in terms of being able to explain the link 
between the evidence and the conclusions.2459 The expert Fernando  Pliego  Alfaro concurs with 
Mr Griffin on the issue of vulnerability, because, in his view, the quality of the  evidence presented 
in the PRA is not equal.2460 
7.1441.   Mr Griffin notes that ISPM No.  11 does not provide guidance on how to judge the quality of 
evidence, but that this is a scientific process, and scientists in general are aware of how to judge 
the evidence rela ted to their area of expertise. For Mr Griffin, one would expect that analysts, if they 
are not the scientists, are consulting the scientists in order to understand the value of the evidence 
that they are reviewing.2461 
7.1442.   In the Panel's view, and considering t he words of the experts Robert Griffin and Fernando 
Pliego Alfaro, the risk assessor's failure to explain the quality of the evidence in 
Reports  ARP-002-2017 and  ARP-006-2016 has resulted in a lack of clarity on the weight that the 
risk assessor gave to each piece of evidence and on how the evidence influenced the conclusions 
and probability values assigned to each factor or element of the analysis. In other words, because 
of the failure to analyse the quality of the evidence, there is a lack of clarity a bout the relationship 
between the risk assessor's conclusions and the available scientific evidence.  
7.1443.   In conclusion, while the Panel considers that most of the scientific evidence in 
Reports  ARP-002-2017 and ARP -006-2016 comes from respected sources, that i t can accordingly be 
seen in itself as legitimate, and that it includes evidence that may be considered relevant and 
sufficiently specific, the lack of analysis on the quality of that evidence constitutes a flaw in the risk 
assessor's reasoning.  
7.1444.   With regar d to uncertainty , Mexico  contends that a lack of information or theoretical 
uncertainty does not give WTO Members licence to stray from the objectivity that should prevail in 
the risk assessment, or, as in this particular case, to assume that all exported fresh fruits are 
asymptomatic and thus class them as high risk.2462 
7.1445.   Mexico also submits that, while it may not be necessary for the risk assessment to be 
quantitative, Costa Rica should have analysed the probability of diversion from intended use of 
avocado seeds, since this is directly related to the probability of spread of ASBVd, and this probability 
should be supported by evidence. For Mexico, even if there was uncertainty, this should have been 
taken into account when considering risk.2463 
7.1446.   Mexico asserts t hat Costa Rica failed to evaluate the uncertainty arising from diversion from 
intended use due to cultural practices and spontaneous germination, such that the assessment 
cannot be classified as reliable or accurate.2464 
7.1447.   Mexico contends that, although Costa Rica's PRAs supposedly focus on the pathway of fresh 
avocados imported for consumption, in fact, greater emphasis was placed on the risk arising from 
diversion from intended use. However, the PRAs do not contain specific evidence addressing the 
problems th at Costa Rica intended them to address. According to Mexico, Costa Rica made no effort 
to calculate this uncertainty on the pretext of it being a difficult practice to document, and, by 
 
2458 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 9 -10. 
2459 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, pp. 10 -11. 
2460 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 3, 
p. 11. 
2461 Robert Griffin, transcript of the Panel's m eeting with the parties and the experts, day 3, p. 19.  
2462 Mexico's second written submission, para. 50.  
2463 Mexico's first written submission, para. 232.  
2464 Mexico's specific comments on the experts' responses to Panel question No. 95 for the experts.  WT/DS524/R  
- 344 - 
  qualifying this factor as an issue of uncertainty, it simply did not p rovide any evidence of diversion 
from intended use.2465 
7.1448.   Mexico asserts that Costa Rica seeks to validate the determination made by the risk analyst 
by justifying the finding of a medium  risk level only because it did not have information to support 
the afore mentioned practice, which is completely arbitrary and implausible, and demonstrates the 
lack of consistency between the risk identified, the scientific evidence analysed and the measures 
ultimately implemented by Costa Rica. Mexico states that uncertainty and the realm of the 
hypothetical cannot underpin the application of risk mitigation measures and that, despite this, 
Costa  Rica seems to be insisting that the exception (i.e. uncertainty) should become the rule.2466 
7.1449.   Costa Rica  argues that it was transparent  in identifying uncertainty with regard to the 
degree of diversion from intended use.2467 
7.1450.   In Costa Rica's view, it is correct to state that the risk rating should be based solely on 
scientific evidence and not on uncertainty, and that risk is determined by b oth scientific evidence 
and uncertainty.2468 For Costa Rica, the uncertainty that may exist with respect to some elements 
of the analysis, including the probability of the risk materializing and the adverse consequences 
arising from that, is a key element in  the assessment of the risk.2469 
7.1451.   Costa Rica does not regard the acknowledgement of the absence of data relating to a 
specific point in the PRA as a methodological flaw that invalidates the risk analysis exercise. On the 
contrary, as the expert Robert Griffin  pointed out, it is important to detect the uncertainties because 
"if we know what the uncertainties are, then we can address those uncertainties with research".2470 
Costa  Rica refers to the point made by Mr Griffin that "[the risk analysis] process [should always be] 
open to evolution and improvement … It should never be static, it always needs to be open for 
improvement and for new and better information, different methodo logies … but should never be a 
static process".2471 Costa Rica states that a country cannot be expected to refrain from adopting 
phytosanitary measures against the risk of introduction of a pest until it has obtained all necessary 
information to dispel the e xisting uncertainties.2472 
7.1452.   The Panel  sought the experts' views on the situations of uncertainty in Reports ARP -002-
2017 and ARP -006-2016.  
7.1453.   The e xpert Robert Griffin expresses concern regarding the lack of an analysis of uncertainty 
in the PRA, and comments th at Costa Rica has not sufficiently documented the areas and degree of 
uncertainty.2473 Mr Griffin considers that the analysis of uncertainty in Costa Rica's PRA is generally  
absent .2474 
7.1454.   Mr Griffin also says that there is no structured treatment of uncertainty.  He states that each 
point of uncertainty that affects the risk assessment needs to be identified and distinguished from 
the evidence for its effect on the assessment, and that this point is critically important to understand 
when risk is being related to evidence and when it is being related to uncertainty.2475 
7.1455.   Mr Griffin adds that identifying areas of uncertainty is useful for directing research to 
priorities that support PRA and better regulatory decisions. For M r Griffin, since most research is not 
direct ly done for PRA purposes, it is not unusual for there to be numerous areas where knowledge 
 
2465 Mexico 's response to Panel question No. 164, para. 144. 
2466 Mexico's comments on Costa Rica's response to Panel question No. 163, para. 2.  
2467 Costa Rica's specific comments on the experts' responses to Panel question No. 90 for the experts.  
2468 Costa Rica's response to Panel question No. 161, para. 172.  
2469 Costa Rica's response to Panel question No. 161, para. 173. 
2470 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, p. 42).  
2471 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83 (citing 
Robert  Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, p. 55).  
2472 Costa Rica's comments on Mexico's response to Panel question No. 161, para. 83.  
2473 Robert Griffin's response s to Panel questions Nos. 90 and 142 for the experts.  
2474 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 2, pp. 27 -28. 
2475 Robert Griffin's respon se to Panel question No. 90 for the experts.  WT/DS524/R  
- 345 - 
  gaps can be filled, and uncertainties can be reduced with simple, inexpensive studies focused 
specifically on PRA questions.2476 
7.1456.   Furthermore, in terms of how to deal w ith uncertainty over diversion from intended use, 
Mr Griffin notes that, because there is a paucity of data as it does not appear that much research 
has been done on the issue, the question needs to be determined by expert opinion.2477 Mr Griffin 
considers t hat experts could be consulted with respect to the probabilities and to analyse the 
uncertainties. He adds that the conclusion will be that, based on expert opinion, there is a certain 
probability and a certain uncertainty.2478 The expert Pablo Cortese, for his part , states that expert 
judgement is key, and that experience and expert judgement are fundamental to a good risk 
analysis.2479 
7.1457.   It should be mentioned that risk assessment techniques developed by the relevant 
international organization in phytosanitary matters , ISPM Nos. 2 and 11, also underline the 
importance of uncertainty. According to ISPM No.  2, uncertainty is a component of risk and therefore 
important to recognize and document when performing PRAs. It is stated in ISPM No.  2 that the 
nature and de gree of uncertainty in the analysis should be documented and communicated, and the 
use of expert judgement indicated.2480 Moreover, it is asserted in ISPM No.  11 that estimation of the 
probability of introduction of a pest and of its economic consequences involves many uncertainties, 
and that it is important to document the areas of uncertainty and the degree of uncertainty in the 
assessment, and to indicate where  expert judgement has been used.2481 ISPM No s. 2 and  11 both 
indicate that this is necessary for transparency and may also be useful for identifying and prioritizing 
research needs.2482 
7.1458.   In Australia – Apples , the Appellate Body noted that "[i]t is clear from a  complete reading 
of ISPM No.  2 and ISPM No.  11 that, in addition to the sections on 'uncertainty' that call for the 
transparency and documentation of the nature and degree of uncertainty, the general sections on 
'documentation' specify that the entire pes t risk analysis process should be sufficiently 
documented".2483 
7.1459.   In view of the foregoing, the Panel agrees that it is important to identify and document 
issues of uncertainty and estimate the degree of uncertainty. The Panel finds no explanation or 
analysis by the risk assessor with respect to the situations of uncertainty in Reports ARP -002-2017 
and ARP-006-2016.  
7.1460.   Reports ARP -002-2017 and ARP -006-2016 merely contend, in a section entitled 
"uncertainty", that "[t]here are currently records of expert testimony (CONSULSANTOS 2017) that 
demonstrate diversion from intended use, however, to date, no statistics are available on the 
quantity of imported fruit from which the seed is extracted for propagation purposes".2484 
Report  ARP-002-2017 cites the paper "Diversion f rom intended use" (2016):  
The practice of diversion from intended use (DFIU) may be unintentional, or done with 
knowledge of its illegal status. It is rarely documented or reported, but anecdotal 
evidence suggests it is occurring in most parts of the world . It is considered most serious 
when products designated for consumption (including grain), time -limited decorative 
purposes (such as cut flowers and branches) or processing instead end up being used 
for planting, so that any associated pests may be introd uced into the open environment 
unchecked.2485 
 
2476 Robert Griffin's response to Panel question No. 91(c) for the experts.  
2477 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 3, p. 40.  
2478 Robert Griffin, transcript of the Pa nel's meeting with the parties and the experts, day 3, p. 41.  
2479 Pablo Cortese, transcript of the Panel's meeting with the parties and the experts, day 3, p. 14.  
2480 ISPM No. 2, (Exhibit MEX -72), pp. 14 -15. 
2481 ISPM No. 11, (Exhibit MEX -77), p. 22.  
2482 ISPM No. 2, (Exhibit MEX -72), p. 15; and ISPM No. 11, (Exhibit MEX -77), p. 22.  
2483 Appellate Body Report, Australia – Apples , para. 247.  
2484 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing CONSULSANTOS (2017),  (Exhibit MEX -118)); 
ARP-006-2016, (Exhibit  MEX-85), p. 11 (citing  CONSULSANTOS (2017),  (Exhibit  MEX-118)). 
2485 ARP-002-2017, (Exhibit MEX -84), p. 8 (citing IPPC Secretariat , "Diversion from intended use" 
(2016),  (Exhibit MEX -124)); ARP-006-2016, (Exhibit MEX -85), p. 11 (citing  IPPC Secretariat , "Diversion from 
intended use" (2016), (Exhibit MEX -124)). WT/DS524/R  
- 346 - 
  7.1461.   In this section entitled "uncertainty", it is stated that there is uncertainty over diversion from 
intended use, but this area of uncertainty is not defined and the degree of uncertainty is not identified. 
In add ition, Reports ARP -002-2017 and ARP -006-2016 do not address in any way the uncertainty 
associated with spontaneous germination. That is to say, there is no clear identification or 
documentation of either the areas or the degree of uncertainty concerning tw o of the main premises 
of Reports ARP -002-2017 and ARP -006-2016, i.e. spontaneous germination and diversion from 
intended use, despite the lack of evidence described in sections 7.4.5.3.3.4  and 7.4.5.3.3.9  above.  
7.1462.   Moreover, the Panel observes that Costa Rica does not provide an explanation and estimate 
of the uncertainty associated with each probability in Reports ARP -002-2017 and  ARP-006-2016. 
This affects the reliability of the probabilities that were assigned to the various factors and elements 
of the risk assessment in Reports ARP -002-2017 and ARP -006-2016, since it is not clear to what 
extent each conclusion in this risk assessment is based o n evidence, and to what extent uncertainty 
influences the conclusions. In the Panel's view, this is particularly important when it comes to the 
factors and elements for which diversion from intended use and spontaneous germination have been 
considered, and  to other issues where there is uncertainty, such as the prevalence of the pest in 
Mexico, the prevalence of asymptomatic fruit in a consignment, the quantity and distribution of host 
plants, and economic and biological consequences of the introduction and  spread of ASBVd, which 
are issues in relation to which sufficient data appear to be lacking.  
7.1463.   All this despite the fact that Manual NR -ARP-PO-01_M -01 states that the estimation of the 
probability of introduction of a pest and of its economic consequences involves many uncertainties, 
and that it is important to document the areas of uncertainty and the degree of uncertainty in the 
assessment.2486 
7.1464.   Manual NR -ARP-PO-01_M -01 indicates that "[i]n all instances where sufficient information 
is not avail able, either following one's own research or because the exporting country's  information 
is insufficient, the uncertainty should be taken into account and the probability should be calculated 
as high".2487 The manual does not explain why uncertainty due to i nsufficient information justifies 
the assignment of a high probability. In the Panel's view, the situation of uncertainty requires greater 
caution when assessing the probability that a certain event will occur or that a certain condition will 
be met. The c oncept of uncertainty cannot be used to assign, automatically and without further 
explanation, a high probability.  
7.1465.   In addition, although, according to Robert Griffin and Pablo Cortese, using expert 
judgement would have been a way to address uncertainty, th e Panel finds no indication in 
Reports  ARP-002-2017 and  ARP-006-2016 that this was done. This despite the fact that certain 
issues of uncertainty, such as diversion from intended use and spontaneous germination, influenced 
the calculation of the probabilit y of entry, establishment and spread of ASBVd. If expert judgement 
was used, this should have been documented in the reports.  
7.1466.   In the Panel's view, the calculation of probabilities in Reports ARP -002-2017 and ARP -006-
2016 was affected by the failure to iden tify and sufficiently document the situations of uncertainty 
and the uncertainties associated with the probabilities, and this constitutes  a flaw in the risk 
assessment in Reports ARP -002-2017 and ARP -006-2016.  
7.4.5.3.7   Conclusion on the evaluation of the likelihoo d of entry, establishment and 
spread, and of the associated potential biological and economic consequences  
7.1467.   The Panel recalls that it reached the following intermediate conclusions with respect to the 
evaluation of the likelihood of entry, establishment and  spread, and of the associated potential 
biological and economic consequences in its analysis of Costa Rica's risk assessment contained in 
Reports ARP -002-2017 and ARP -006-2016:  
a. The use of a fixed format, derived  from Manual NR -ARP-PO-01_M -01, in Reports A RP-002-
2017 and ARP -006-2016 limits the flexibility of judgement in the analysis, which leads to 
the absence of  the risk assessor's reasoning; and removes the flexibility to address 
 
2486 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 20.  
2487 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 7.  WT/DS524/R  
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  ASBVd -specific issues, which affects the appropriateness of the risk assessment to the 
circumstances;  
b. There is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the existence of diversion from intended use of seeds from fresh fruit for consumption, 
and there are no estimates, even in qualitative t erms, of the scale on which this diversion 
occurs in Costa Rica, which prevented the risk analyst from conducting either a qualitative 
or quantitative assessment of the probability of entry, establishment or spread of ASBVd 
in Costa  Rica that would give du e consideration to this diversion from intended use;  
c. There is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the occurrence of spontaneous germination, and there are no estimates, even in 
qualitative terms, of the scale on whi ch this spontaneous germination occurs in Costa Rica, 
which prevented  the risk analyst from conduct ing either a qualitative or quantitative 
assessment of the probability of entry, establishment or spread of ASBVd in Costa Rica 
that would give due considera tion to this spontaneous germination;  
d. In reaching a generalized conclusion on spontaneous germination, without considering in 
the assessment of the elements and factors of the probability analysis the differences in 
the edaphoclimatic conditions in the var ious regions of the country and the different 
situations in which a seed could be discarded (for example, on a farm, in a garden or at a 
landfill site), Reports ARP -002-2017 and ARP -006-2016 overestimated the probability of 
spontaneous germination occurrin g in the entire PRA area. There is also a failure to take 
into account the edaphoclimatic conditions conducive to the development of the avocado 
tree after germination, which affects the assessment of the availability of host plants, and 
thus the probabili ty of the spread of ASBVd;  
e. Assigning risk values, whether high, medium , or low, with their respective numerical 
values (3, 2, or 1), to the various factors and elements, on several occasions  without the 
necessary scientific basis, without sufficient reason ed explanations by the risk assessor, 
and without considering the multiplicative relationship that exists between the conditions 
and events necessary for the entry of ASBVd, cannot be considered an objectively 
justifiable qualitative assessment of the like lihood of entry of ASBVd in Costa  Rica's 
territory;  
f. Assigning risk values, whether high, medium , or low, with their respective numerical 
values (3, 2, or 1), to the various factors, on several occasions  without the necessary 
scientific basis, without suffi cient reasoned explanations by the risk assessor, without 
paying due attention to the rate of reproduction and spread of ASBVd, and without 
considering the multiplicative relationship that exists between the conditions and events 
necessary for the establis hment of ASBVd, cannot be considered an objectively justifiable 
qualitative assessment of the likelihood of establishment of ASBVd in Costa  Rica's 
territory;  
g. Assigning risk values, whether high, medium , or low, with their respective numerical 
values (3, 2,  or 1), to the various factors, on several occasions  without the necessary 
scientific basis, without sufficient reasoned explanations by the risk assessor, and without 
paying any attention to the rate of reproduction and spread of ASBVd, cannot be 
consider ed an objectively justifiable qualitative assessment of the likelihood of spread of 
ASBVd in Costa Rica's territory;  
h. Reports  ARP-002-2017 and ARP -006-2016 refer to economic effects and biological 
consequences without explanation or justification, and there  are statements about 
economic effects that refer to two sources and contain quantitative data, but these data 
are extrapolated to the case of Costa Rica with no explanation of how they are applicable 
to Costa Rica's circumstances. Thus, there has been no evaluation of the associated 
potential biological and economic consequences, and this constitutes  a flaw in the risk 
assessment in Reports ARP -002-2017 and ARP -006-2016;  
i. While most of the scientific evidence in Reports ARP -002-2017 and ARP -006-2016 comes 
from respected sources, can accordingly be seen in itself as legitimate, and includes WT/DS524/R  
- 348 - 
  evidence that may be considered relevant and sufficiently specific, the lack of analysis on 
the quality of the evidence constitutes a flaw in the risk assessor's reasoning ; 
j. The calculation of probabilities in Reports ARP -002-2017 and ARP -006-2016 was affected 
by the failure to identify and sufficiently document the situations of uncertainty and the 
uncertainties associated with the probabilities, and this constitutes  a flaw in the risk 
assessment in  Reports  ARP-002-2017 and ARP -006-2016.  
7.1468.   In view of the flaws noted in the previous paragraph, the Panel concludes that Costa  Rica's 
risk assessment contained in Reports ARP -002-2017 and ARP -006-2016 does not comply with the 
second  step suggested by the Appellate Body based on the definition of "risk assessment" in 
paragraph  4 of Annex A to the SPS  Agreement , i.e. to evaluate the likelihood of entry, establishment 
or spread of  ASBVd, as well as  the associated potential biological an d economic consequences.  
7.4.5.4   Whether the likelihood of entry, establishment or spread of a pest or disease was 
evaluated according to the sanitary or phytosanitary measures which might be applied  
7.1469.   With regard to the third step suggested by the Appellate Body based on the definition of 
"risk assessment" in paragraph 4 of Annex A to the SPS  Agreement , Mexico  submits that Costa  Rica 
failed to evaluate the likelihood  of entry, establishment or spread of ASBVd according to the SPS 
measures which migh t be applied, and therefore failed to conduct a risk assessment based on 
paragraph 4 of Annex A.2488 
7.1470.   In Mexico's view, although the PRAs identify four measures (three of which are alternatives) 
that could be applied to the importation of fresh avocados, Cost a Rica failed to evaluate the 
effectiveness of each of these measures in reducing the risk arising from the transmission of ASBVd 
and its disease through the pathway of fresh avocados imported for consumption.2489 Mexico notes 
that Costa Rica also failed to evaluate other possible alternatives, distinct from those already in place 
since Resolution DSFE -11-2015, therefore the PRAs are ex post facto  assessments conducted to 
justify the measures with the intention of restricting trade in fresh avocados for consu mption from 
Mexico.2490 
7.1471.   Mexico also submits that, in its PRAs, Costa Rica merely recommends three alternative 
measures that the PRAs assume will be applied individually, without consideration as to their 
effectiveness; and that the three proposed measures ar e inconsistent with Costa  Rica's main 
concern, namely, the diversion from intended use of the pits of fresh avocados imported for 
consumption.2491 Mexico adds that it is within the framework of the proceedings that Costa  Rica 
decided to implement a regulation on the diversion from intended use of the pits of avocados 
imported for consumption, and that there is no substantive analysis of how this reg ulation operates 
or how it would reduce the risk of entry, establishment and spread of ASBVd in its territory. According 
to Mexico, had such an analysis been carried out, Costa Rica would have concluded that this 
regulation was sufficient to address the ne gligible risk of ASBVd being transmitted through a fresh 
avocado imported for consumption.2492 Mexico contends that Costa Rica preferred to require Mexico 
to comply with one of the three measures  as an alternative , when certification is disproportionate, 
entails unnecessary costs, is economically unfeasible and does not guarantee that the alleged risk 
will be mitigated.2493 
7.1472.   Mexico asserts that Costa Rica should have calculated the probability of entry, 
establishment and spread of ASBVd and its disease based on the effectiveness of each of the 
measures applied in mitigating the risk, as well as that of other possible alternatives, rather than 
simply indicating or identifying measures already in place.2494 According to Mexico, Costa Rica should 
have: (i)  identified the measures that reduce the risk of concern; (ii)  considered these measures in 
the PRAs as a risk reduction factor; and (iii)  linked these measures to the evaluation of the likelihood 
 
2488 Mexico's first written submission, para. 381.  
2489 Mexico's first written submission, para.  375. 
2490 Mexico's first written submission, para. 375; second written submission, para. 171 (citing 
Resolution  DSFE -11-2015, (Exhibit MEX -3)). 
2491 Mexico's opening statement at the first meeting of the Panel, para. 53.  
2492 Mexico's opening statement at the first meeting of the Panel, para. 54.  
2493 Mexico's opening statement at the first meeting of the Panel, para. 55.  
2494 Mexico's first written submission , paras.  376-377. WT/DS524/R  
- 349 - 
  of entry, establishment or spread of ASBVd and its  disease within Costa Rican territory according to 
the SPS  measures which might be applied.2495 Mexico notes that Costa  Rica merely indicated that 
inspections at entry points were insufficient, without having conducted the appropriate 
evaluation.2496 
7.1473.   Mexico su bmits that the PRA indicates only that inspections conducted at entry points are 
considered insufficient because ASBVd is asymptomatic in fruits and specific tests are needed to 
detect it, yet fails to take into account that the fresh fruit exported by Mex ico is for human 
consumption, not for propagati on material.2497 
7.1474.   Mexico also submits that Costa Rica could have considered other measures that do not fall 
solely upon the importing country, such as, for example, local risk management measures that 
involve str ictly regulating the certification in nurseries of propagati on material free of ASBVd, and 
requiring owners of commercial avocado farms to use this material.2498 
7.1475.   Mexico adds that Costa Rica also failed to evaluate other specific measures that might be 
applic able, such as those proposed by Mexico as alternative measures in its claim under Article  5.6 
of the SPS  Agreement, which Mexico considers technically and economically viable for reducing the 
risk of transmission of ASBVd and its disease through the pathwa y of fresh avocados imported for 
consumption from Mexico.2499 According to Mexico, if Costa Rica had fulfilled the obligation to 
conduct a risk assessment according to the measures which might be applied, it would have 
considered and analysed in detail why t he domestic regulation was or was not a measure that in 
itself mitigated any risk of entry, establishment and spread of ASBVd arising from the diversion from 
intended use of the pit obtained from fresh fruit imported for consumption.2500 
7.1476.   Mexico points out that the general measures recommended by the risk assessments are 
further evidence that they are measures designed to justify decisions ex post facto , which explains 
why these general measures remained simple recommendations, even though some would be able 
to achieve Costa Rica's ALOP, such as its regulation governing diversion from intended use .2501 In 
Mexico's view, the fact that Costa Rica has decided to implement the regulation without conducting 
a new risk assessment highlights that the  adoption of its measures was an ex post  decision.2502 
7.1477.   Costa Rica  asserts that Mexico has not demonstrated how Costa Rica failed to comply with 
this element of the definition of "risk assessment" under paragraph 4 of Annex A to the 
SPS Agreement. Costa Rica contends that it considered the measures which might be applied, rather 
than simply the measures that were in place when the risk analysis was carried out, and that the 
measure contained in Resolution DSFE -03-2015 was completely different from the measures  
adopted in 2018. According to Costa Rica, Resolution DSFE -03-2015 temporarily suspended the 
phytosanitary authorizations for the importation of avocados from countries where ASBVd is present, 
and, in 2018, phytosanitary requirements were adopted that allo wed for the importation of fresh 
avocado fruit and, at the same time, sought to ensure that Costa  Rica maintains its ASBVd -free 
status.2503 
7.1478.   Costa  Rica also contends that the risk assessment did not seek to justify ex post  the import 
suspension that was in pl ace in Costa Rica2504, and that, during the risk management stage, 
alternatives were considered and it was eventually recommended that measures that would not 
prohibit the importation of avocado fruit should be adopted.2505 Costa Rica asserts that it took into  
account the relative cost -effectiveness of alternative approaches to limiting risks, which is one of 
the economic factors listed in Article  5.3 of the SPS  Agreement . Costa Rica indicates that it did 
consider inspections at entry points, but, given that AS BVd is asymptomatic in fruits and tests are 
 
2495 Mexico's first written submission, para. 378.  
2496 Mexico's first written submission, para. 379.  
2497 Mexico's opening statement at the first meeting of the Panel, para. 52.  
2498 Mexico's first written submission, para. 379.  
2499 Mexico's first wri tten submission, para. 380.  
2500 Mexico's second written submission, para. 172.  
2501 Mexico's second written submission, para. 173 (referring to Regulation governing  the use of avocado 
seeds (2019), (Exhibit s MEX -174 and  CRI-53)). 
2502 Mexico's second written submi ssion, para. 174.  
2503 Costa Rica's first written submission, paras.  5.146 -5.147; second written submission, para.  3.45. 
2504 Costa Rica's first written submission, para. 5.147; second written submission, para. 3.45.  
2505 Costa Rica's first written submission, para. 5.148.  WT/DS524/R  
- 350 - 
  needed to detect it, it was determined that visual inspections upon entry of the goods were not 
sufficient; and that therefore measures whose relative cost -effectiveness was considered to be 
optimal  were recommen ded, aimed at certifying the absence of the viroid in the exporting country 
and verifying this absence in the importing country .2506 
7.1479.   Costa  Rica states that the risk assessment recommended the adoption of other general 
measures that Costa Rica has made every effort to implement: (i)  avocado -producing areas continue 
to be actively monitored, verifying the absence of ASBVd through extensive sampling and diagnostic 
tests; (ii)  efforts are being stepped up in programmes on good agricultural practices for avocados 
and in teaching producers about the importance of using certified seeds; (iii)  it is hoped that the 
producing sector will be trained to implement and become certified in good agricultural practices, 
and that a certification programme for avocado plants and  nurseries will be developed, for which 
technical standards for the certification of avocado seeds, buds and nursery stock were adopted; 
and (iv)  at the time of Costa Rica's first written submission, there already existed a draft decree 
regulating the use for propagation purposes of avocado seeds extracted from fresh fruit for 
consumption from countries where ASBVd is present.2507 
7.1480.   On this point, Costa Rica asserts that Decree No.  41995 -MAG was published on 
16 October  2019, which prohibits the sowing of seeds from avocado fruit imported from countries 
where ASBVd is present. Costa Rica submits that this Decree recognizes that ASBVd can be 
transmitted by seeds, which is why there is a risk of introduction in the event of diversion from 
intended use, and th e use for propagation purposes of seeds extracted from fresh avocado fruit 
imported for consumption from countries where ASBVd is present is therefore prohibited. Costa  Rica 
adds that it is mandated that nursery workers are responsible for ensuring that av ocado seeds do 
not come from fruit imported from countries where ASBVd is present, and verification powers and 
penalties in the event of non -compliance are also established.2508 
7.1481.   Costa Rica concludes that, in addition to adopting alternative phytosanitary req uirements 
for the importation of fresh avocados, it is doing its utmost at the domestic level to protect its 
phytosanitary status as free of ASBVd, and that Mexico has not demonstrated that Costa  Rica has 
failed to evaluate the likelihood of entry, establi shment and spread of ASBVd according to the 
sanitary or phytosanitary measures which might be applied.2509 
7.1482.   The Panel  recalls that the definition of "risk assessment" in the SPS  Agreement  requires 
that the evaluation of the likelihood of entry, establishment or spread of a disease be conducted 
"according to the sanitary or phytosanitary measures which might be applied".  
7.1483.   Emphasizing the use of the term "might" in the conditional tense, the Appellate Body in 
Japan – Apples explained that "a risk assessment should not be limited to an examination of the 
measure already in place or favoured by the importing Member. In other words, the evaluation 
contemplated in paragraph 4 of Annex A to the SPS Agreement  should not be distorted by 
preconceived views on the nature and the content of the measure to be taken; nor should it develop 
into an exercise tailored to and carried out for the purpose of justifying decisions ex post facto ."2510 
 
2506 Costa Rica's second written submission, para. 3.46.  
2507 Costa Rica's first written submission, para. 5.149 (citing  MAG, IICA, National Avocado Production 
Plan (2019) , (Exhibit CRI -1); Oficina Nacional de Semillas de Costa Rica, " Normas Técnicas para  la 
Certificación de Semillas, Yemas y Plantas de vivero de Aguacate (Persea americana Mill.)", aprobado el 17 de 
octubre 2017 ( Technical standards for seeds  (2017) ), (Exhibit CRI -33); and Presidente de la Repúb lica y 
Ministro de Agricultura y Ganadería de Costa Rica, "Proyecto de Decreto para 'Regular el uso de semilla de 
aguacate  (Persea americana Mill.) para propagación, extraídas de frutos importados para consumo, de países 
con presencia de Avocado sunblotch viroid (ASBVd)'" , 13 de septiembre de 2019 ( Draft decree governing the 
use of avocado seeds (2019) ), (Exhibit CRI-34)); second written submission, para. 3.47.  
2508 Costa Rica's opening statement at the first meeting of the Panel, paras.  13-14 (citing Regulation 
governing the use of avocado seed s (2019), (Exhibits MEX -174 and CRI -53)); response to Panel question 
No. 93 (citing Regulation governing the use of avocado seed s (2019), (Exhibits MEX -174 and CRI -53)); second 
written submission, para. 3.47 (cit ing Regulation governing the use of avocado seed s (2019),  
(Exhibits  MEX-174 and  CRI-53)). 
2509 Costa Rica's first written submission, para. 5.150.  
2510 Appellate Body Report, Japan – Apples , para. 208.  WT/DS524/R  
- 351 - 
  7.1484.   This Panel concu rs with the foregoing, and considers that in order to evaluate the likelihood 
of entry, establishment or spread according to the SPS measures which might be applied, a Member 
should identify and ponder different measures that could be applied to address th e risk in question.  
7.1485.   In the section entitled "pest risk management", Reports ARP -002-2017 and ARP -006-2016 
indicate that inspections carried out at entry points are considered insufficient to ensure 
phytosanitary security, given that ASBVd in particular is asymptomatic in fruits and that specific 
tests are needed to detect it.2511 
7.1486.   Reports ARP -002-2017 and ARP -006-2016 recommend the following phytosanitary 
measures in addition to the phytosanitary certificate:  
a. Consignments  must be accompanied by an official phy tosanitary certificate issued by the 
country of origin, which indicates, in the section for additional declarations, that the fruit 
is free of ASBVd; or  
b. Consignments must be accompanied by an official phytosanitary certificate issued by the 
country of origin, which indicates, in the section for additional declarations, that the fruit 
comes from a place of production free of ASBVd (previously recognized by the SFE); or  
c. Consignments must adher e to a systems approach programme established bilaterally.2512 
7.1487.   Moreover, Reports ARP -002-2017 and ARP -006-2016 contain the following general 
recommendations for the Directors of the SFE:  
a. Determine the absence of ASBVd at the entry point, by sampling and test ing. 
b. Continue to monitor avocado -producing areas actively.  
c. Teach producers about the importance of using certified seed.  
d. Step up programmes on good agricultural practices for avocados.  
e. Regulate the use for propagation of seeds from avocados imported for co nsumption.2513 
7.1488.   On the basis of the above, the Panel notes that the reports refer to inspections at entry 
points as an option that was considered to be insufficient, and include the recommendation for the 
three alternative phytosanitary requirements in place,  as well as general recommendations.  
7.1489.   The Panel also observes that, according to the manual for the preparation of the reports 
(Manual NR -ARP-PO-01_M -01), risk management is the process of identifying ways to react to a 
perceived risk, evaluating the effica cy of these actions, and identifying the most appropriate 
options.2514, 2515 The manual includes a section on the identification and selection of appropriate risk 
management options, and lists some of the measures most commonly applied to traded 
commodities.2516 The manual also presents risk management options tailored to the risk assessment 
outcome.2517 
7.1490.   The reports repeat what is stated in the manual that, for the high -risk rating, it is 
recommended that specific phytosanitary measures be applied, and that inspect ions conducted at 
 
2511 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), p. 23.  
2512 ARP-002-2017, (Exhibit MEX -84), pp. 42 -43 and 49; ARP -006-2016, (Exhibit MEX -85), pp. 23 -24. 
2513 ARP-002-2017, (Exhibit MEX -84), p. 43.  
2514 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 21.  
2515 This is also ind icated in ISPM  No. 11 in its section on the pest risk management stage. 
(ISPM No. 11, (Exhibit  MEX-77), p. 22). 
2516 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), pp. 21 -23. 
2517 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  WT/DS524/R  
- 352 - 
  entry points are considered insufficient to ensure phytosanitary security2518, adding the explanation 
that ASBVd in particular is asymptomatic in fruits and that specific tests are needed to detect it.2519 
7.1491.   The Panel notes that one of the alternative requirements imposed (that the provenance of 
the product must be a place of production free of a particular pest) comes from the manual's high 
risk rating list, which also mentions verification at origin where deemed necessary.2520 With regard 
to the options within the importing country, the manual indicates that these options could include 
careful surveillance to try and detect the entry of the pest as early as possible, eradication 
programmes to eliminate any foci of infestation and/or containme nt action to limit spread.2521 
7.1492.   In the view of th e Panel, Reports ARP -002-2017 and ARP -006-2016 fail to explain the 
measure selection process, and, specifically, which measures could be applied and why the 
recommended measures were chosen over other measures.  While the reports do mention and set 
out why conducting inspections at entry points was rejected as an option that would fail to address 
the risk posed by asymptomatic fruit, there is no mention or analysis of other risk management 
options that could reduce the risk associated with those fruits. The reports do not offer a relative 
assessment of the measures, that is by comparing them with other measures or combinations of 
measures that could reduce the risk. In addition, it is not explained whether or how the manual's 
lists of risk management opti ons were considered, or how it was decided to recommend the three 
alternative phytosanitary requirements and suggest the general recommendations. There is also no 
assessment of the expected results of the application of the recommended SPS  measures. In oth er 
words, the reports lack an assessment of the technical, economic and operational feasibility of these 
measures.  
7.1493.   With regard to the measures previously in place, the Panel notes that the 2015 emergency 
measure implemented through Resolution DSFE -03-2015 was a temporary suspension of the issuing 
of phytosanitary import certifications for avocados from Australia, Ghana, Guatemala, Israel, Mexico, 
South  Africa, Spain and Venezuela.2522 
7.1494.   Subsequently, Resolution DSFE -11-2015 established the following phytosanita ry 
requirements for imports of avocado fruit for consumption from Mexico, with respect to ASBVd: 
(i) plantations must comprise plants from nurseries certified by the NPPO of the country of origin, 
as free of ASBVd, previously recognized by the SFE of Costa  Rica; (ii)  products must come from a 
place of production free of ASBVd, previously recognized by the SFE of Costa Rica. It was also 
determined that the products would be subject to phytosanitary controls at the point of entry. 
Furthermore, it was indicate d that fruit samples would be sent to the SFE nurseries in Pavas, 
San José, for planting and subsequent laboratory analysis to determine whether they were free of 
ASBVd, by the Central  Laboratory for Pest Diagnosis of the Laboratory Department of the SFE.2523 
7.1495.   Taking into account the foregoing, Reports ARP -002-2017 and ARP -006-2016 also fail to 
explain why it was decided to maintain the same type of measures as those imposed through 
Resolution  DSFE -11-2015, and why a decision was made to add the systems approa ch and the 
general recommendations.  
7.1496.   In sum, the Panel is of the view that, besides the reference to inspections at entry points, 
Reports  ARP-002-2017 and ARP -006-2016 fail to mention or analyse other potential risk 
management measures. The reports include recommendations for three alternative measures, as 
well as general recommendations, without providing an explanation of why they were chosen or how 
they relate to the risk management options in Manual NR -ARP-PO-01_M -01, should such a 
relationship exist. Th e reports simply  set out the recommendations on measures to be applied 
without explaining which other measures could be applied. In other words, they do not identify or 
ponder the measures that could be applied.  
7.1497.   As a result, the Panel concludes that Report s ARP -002-2017 and ARP -006-2016 fail to 
evaluate the likelihood of entry, establishment or spread according to the SPS measures which might 
 
2518 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  
2519 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), p. 23.  
2520 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 24.  
2521 Manual NR -ARP-PO-01_M -01, (Exhibit MEX -104), p. 23.  
2522 Resolution DS FE-03-2015, (Exhibit MEX -1), p. 2.  
2523 Resolution DSFE -11-2015, (Exhibit MEX -3), p. 9.  WT/DS524/R  
- 353 - 
  be applied , which means that the risk assessment does not comply with the third step suggested by 
the Appellate Body  based on the definition of "risk assessment" in paragraph  4 of Annex  A to the 
SPS Agreement . 
7.1498.   Given that the consideration of the relative cost -effectiveness of alternative approaches to 
limiting risks is one of the relevant economic factors listed in Arti cle 5.3 of the SPS  Agreement , the 
Panel will elaborate on this matter in the section 7.4.5.8  below.  
7.1499.   Similarly, Mexico's argument on whether or not the domestic regulation on the use of the 
seeds was a measure that , by itself, mitigated any risk of entry, establishment and spread of ASBVd 
arising from the diversion from intended use of the pit obtained from fresh fruit imported for 
consumption relates to Mexico's trade -restrictiveness claims under Article  5.6 of the SPS  Agreement . 
Therefore , the Panel will address this argument in section 7.5 below.  
7.4.5.5   Whether Costa Ric a's risk assessment in Reports ARP -002-2017 and ARP -006-
2016 is appropriate to the circumstances  
7.1500.   Mexico  submits that Costa Rica's measures are not based on a risk assessment "as 
appropriate to the circumstances", since Costa Rica failed to consider both th e circumstances specific 
to the pathway of fresh avocados imported for consumption, and the circumstances relating to the 
origin and destination of the product at issue.2524 
7.1501.   Mexico considers that the nature of the expression "appropriate to the circumstances " 
requires an objective analysis of the specific situations that should influence how a country conducts 
its risk assessment, such as the source (disease -causing organism) and subject (fresh avocados for 
consumption) of the risk, as well as the country -specific situations of the product's points of origin 
(Mexico) and destination (Costa Rica).2525 
7.1502.   Costa  Rica submits that Mexico has failed to establish that Costa Rica's measures are not 
based on a risk assessment "as appropriate to the circumstances".2526 
7.1503.   Costa  Rica notes that, under past case law, the requirement that the risk assessment be 
"appropriate to the circumstances" has been considered to leave some flexibility for an assessment 
of risk on a case -by-case basis, in terms of product, origin and destinatio n, in particular, country -
specific situations. Costa Rica adds that, for example, relevant circumstances are considered to be 
the fact that the importing country is free of the pest under analysis, or that its climatic conditions 
make it a potentially favo urable environment for the spread of the pest.2527 
7.1504.   Costa  Rica asserts that it carried out a risk assessment specifically for the pest, ASBVd, and 
the pathway of fresh avocados fruit for consumption, noting, in particular, the country -specific 
situations, such as the absence of the viroid in Costa Rican territory and Costa  Rica's favourable 
climatic conditions.2528 
7.1505.   As a third party, the European  Union  is of the view that "as appropriate to the 
circumstances" indicates that consideration must be gi ven to the methodological difficulties posed 
by the nature and characteristics of the specific substance and risk being evaluated, and that 
WTO Members have to assess the risk, on a case -by-case basis, in terms of product, origin and 
destination, including , in particular, country -specific situations. According to the European  Union, 
this expression provides some flexibility for Members in the conduct of their risk assessments, 
without absolving them of their duty to base their measures on a risk assessment.2529 The 
European  Union is of the opinion that the question of whether the elements set forth in Articles  5.2 
 
2524 Mexico's first written submission, para. 409; second written submission, para.  182. 
2525 Mexico's first written submission, para. 385.  
2526 Costa Rica's first written submission, p. 64.  
2527 Costa Rica's first written submission, para. 5.155 (citing Panel  Report , Japan – Apples , paras.  8.239 -
8.240); second written submission, para. 3.24 (citing Pan el Report , Japan – Apples , paras.  8.239 -8.240).  
2528 Costa Rica's second written submission, para. 3.24.  
2529 European  Union 's response to Panel question No. 6, para. 19 (citing Appellate Body Reports, 
US/Canada – Continued Suspension , para. 562; and Panel  Repor ts, Australia – Salmon , para. 8.71; and 
US – Animals , para. 7.323).  WT/DS524/R  
- 354 - 
  and 5.3 were taken into account is also relevant to the determination of whether the risk assessment 
is "appropriate to the circumstances".2530 
7.1506.   Canada , as a third party, indicates that the phrase "appropriate to the circumstances" 
applies to the assessment of risks conducted by the WTO Member pursuant to Article  5.1, and that 
the types of circumstances that could be considered by a panel include t he source and subject of the 
risk, as well as product, origin and destination, including country -specific situations; the risk 
assessment techniques developed by the relevant international organizations as well as scientific 
opinions; and the factors consi dered in the assessment of risks under Articles 5.2 and 5.3.2531 
Canada further indicates that the phrase "appropriate to the circumstances" only applies to the 
obligation under Article  5.1 providing Members with a certain degree of flexibility2532, but does n ot 
qualify or provide discretion to the WTO Member to determine which of the factors listed in 
Articles  5.2 and 5.3 need to be taken into account.2533 Canada adds that this phrase does not annul 
or supersede the obligation of a WTO Member to base its measure  on a risk assessment.2534 
7.1507.   The Panel  recalls that Article  5.1 requires Members to ensure that their sanitary or 
phytosanitary measures are based on an assessment, as appropriate to the circumstances , of the 
risks.  
7.1508.   The Panel notes that the phrase "as appropri ate to the circumstances" provides Members 
with a certain degree of flexibility in meeting the requirements of Article  5.1 of the 
SPS Agreement2535, but that this flexibility does not relieve the Member from the requirements of 
this Article.2536 
7.1509.   As regards the circumstances to which the provision refers, the panel in Australia – Salmon 
considered that these circumstances may include the source of the risk and the subject of the risk, 
as well as the product, origin and destination, including, in pa rticular, country -specific situations .2537 
In addition, the panel in US – Animals  considered that the question of whether the elements set 
forth in Articles  5.2 and 5.3 were taken into account is relevant  to the determ ination of  whether the 
risk assessment i s appropriate to the circumstances in accordance with Article  5.1.2538 
7.1510.   This Panel concurs with those panels, and considers that the circumstances to which the 
phrase "as appropriate to the circumstances" refers include the source and subject of the risk, the  
product, origin, destination, and the elements set forth in Articles 5.2 and 5.3.  
7.1511.   With regard to the consideration of whether there exists a risk assessment appropriate to 
the circumstances, the panel in Japan – Apples (Article  21.5 – US) held that this c onsideration is not 
limited to a procedural review as to whether the risk assessment followed a certain form, in casu 
the IPPC standards. More importantly, the substance of the PRA, that is the scientific evidence which 
is being evaluated, must support the  conclusions of the PRA.2539 
7.1512.   As part of the evaluation of the likelihood of entry, establishment or spread of ASBVd, 
the Panel has already analysed the consideration in Reports ARP -002-2017 and ARP -006-2016 of 
the circumstances relevant to the risk assessmen t, including, in this case, those relating to ASBVd, 
avocado fruit, Costa Rica's climatic conditions, its cultural practices, the status of ASBVd in 
Costa  Rican territory, the presence of ASBVd in Mexico, and the potential biological and economic 
 
2530 European  Union 's response to Panel question No. 6, para. 20 (citing Panel  Report , US – Animals , 
para. 7.323).  
2531 Canada's response to Panel question No. 6, para. 16 (citing Panel  Report , Australia – Salmon , 
para. 8.71).  
2532 Canada's response to Panel question No. 6, para. 17 (citing Appellate Body Report, EC – Hormones , 
para. 129); opening statement at the first meeting of the Panel, para. 15 (citing Appellate Body Report, 
EC – Hormones , para. 129).  
2533 Canada's response to Panel question No. 6, para. 17; opening statement at the first meeting of 
the Panel, para.  16. 
2534 Canada's opening statement at the first meeting of the Panel, para. 15 (citing Panel  Report , 
Australia – Salmon , para. 8.57).  
2535 Appellate Body Report, EC – Hormones , para. 129.  
2536 Panel  Report , EC – Approval and Marketing of Biotech Products , para. 7.3053.  
2537 Panel  Report , Australia – Salmon , para. 8.71.  
2538 Panel  Report , US – Animals , para. 7.323.  
2539 Panel  Report , Japan – Apples (Article 21.5 – US), para. 8.129.  WT/DS524/R  
- 355 - 
  consequen ces. In the course of its analysis of the reports, the Panel has found flaws relating to the 
consideration of these circumstances.  
7.1513.   In the view of this Panel, given the flaws found in relation to the consideration of these 
circumstances that are relevant to  Costa Rica's risk assessment, the risk assessment in Reports ARP-
002-2017 and ARP -006-2016 cannot be considered a risk assessment appropriate to the 
circumstances  within the meaning of Article  5.1 of the SPS  Agreement . 
7.1514.   The Panel observes that Mexico has identified a number of specific circumstances that, in 
its view, Costa Rica should have considered for its risk assessment to be appropriate to the 
circumstances. The Panel will address these specific circumstances to the  extent that it has not done 
so previously.  
7.1515.   Mexico states that Costa Rica failed to consider the circumstances that had a direct impact 
on the outcome of the SFE's risk assessments, such as: the presence of ASBVd and its disease in 
Costa  Rica; the recalcit rant nature of avocado seeds; the  more than 20 years  of trade in fresh 
avocados for consumption between Mexico and Costa Rica without a single risk situation arising; the 
uninterrupted trade, prior to the preparation of the PRA , in avocados from Mexico and  other countries 
where ASBVd and its disease are present; and Mexico's status as the world's leading exporting 
country thanks to its avocado quality, yield and production level.2540 
7.1516.   As regards the presence of ASBVd and its disease in Costa Rica , Mexico  refers to the 
declaration of freedom from ASBVd, to the samples taken, and to the evidence, scientific testimonies 
and statements by members of the avocado industry to assert that they indicate the presence of 
ASBVd and its disease.2541 
7.1517.   Mexico also asserts that the climatic conditions in the Los Santos zone  are not a 
circumstance that justifies an increased probability of ASBVd transmission.2542 
7.1518.   With regard to the recalcitrant nature of avocado seeds , Mexico contends that an avocado 
seed does not germinate in such a  spontaneous manner because it is a recalcitrant seed, and that if 
Costa  Rica had considered the seed's recalcitrant nature, the risk assessment would have been 
conducted differently and would probably have reached a different conclusion with regard to the  
likelihood of entry, establishment and spread of ASBVd.2543 
7.1519.   Costa Rica  refers to the arguments it presented in relation to the absence of ASBVd in the 
country, the suitability of its climatic conditions, and the viability of avocado seeds.2544 
7.1520.   The Panel  has already addressed the matter of the presence of ASBVd in Costa  Rica in 
section 7.3 above, and the matters of Costa Rica's climatic conditions and the seed 's recalcitrant 
nature in section 7.4.5.3.3  above.  
7.1521.   Turning to the more than 20 years of trade  in fresh avocados for consumption between 
Mexico and Costa Rica , Mexico  asserts that during the 22 -year period from 1993 to 2015, Costa  Rica 
imported a total of 137,492.46 tonnes of fresh avoc ado for consumption from Mexico, without a 
single instance of ASBVd and its disease having been reported in the fresh avocados imported. 
Therefore , according to Mexico, assuming, arguendo , that Costa Rica is free of ASBVd, this implies 
that: (i)  Mexico's c ontrol measures are sufficient to prevent the exportation of products infected 
with ASBVd; (ii)  the pathway of fresh avocados imported for consumption from Mexico is not a 
means for the spread of ASBVd and its disease; and (iii)  the risk posed by fresh avo cado fruit for 
consumption is negligible.2545 
7.1522.   Mexico adds that from 2009, when the presence of ASBVd was officially reported in 
Michoacán, until 2015, Mexico exported a total of 58,562,723 tonnes of fresh avocado for 
consumption to Costa Rica, which means an  average of 292,814,615 avocado seeds that, according 
 
2540 Mexico's first written submission, para. 386.  
2541 Mexico's first written submission, para. 388.  
2542 Mexico's first written submission, p. 93.  
2543 Mexico's first written submission, paras.  395-398. 
2544 Costa Rica's  first written submission, paras. 5.156 -5.157.  
2545 Mexico's first written submission, para. 399.  WT/DS524/R  
- 356 - 
  to Costa  Rica's line of argumentation, each represent an opportunity for the entry, establishment 
and spread of ASBVd, therefore there would be 292,814,615 avocado seeds planted that were 
infected with ASBVd and its disease.2546 
7.1523.   For Mexico, if Costa Rica had considered the circumstances surrounding the fact that no 
instances of ASBVd were detected in consignments of fresh avocados for consumption from Mexico 
during the period of trade before the measures w ere in place, it would have conducted the risk 
assessment differently and would probably have reached a different conclusion with regard to the 
likelihood of entry, establishment and spread of ASBVd.2547 
7.1524.   As part of its arguments under Article  5.2 of the SPS Agreement , Mexico also submits that 
Costa  Rica's risk assessment failed to take into account as an additional relevant factor the fact that 
Mexico exported avocados to Costa Rica for more than 22 years, since Mexico exported 137,492.46 
tonnes of fresh avocado for consumption  from 1993 to May 2015, without the presence of ASBVd 
having been reported once.2548 In the same section, Mexico also notes that another relevant factor 
that Costa Rica failed to consider is that Costa Rica has not detected ASBVd in sh ipments from 
Mexico, as stated by the SFE in 2015.2549 
7.1525.   Costa Rica , for its part , contends that at no point did Mexico report the presence of ASBVd 
in its territory; that, for 20 years, ASBVd was never detected in consignments of avocados from 
Mexico because Costa Rica, unaware that ASBVd was established in Mexico, did not impose 
phytosanitary requirements2550; and that Costa Rica learned of the presence of ASBVd in Mexico as 
a result of the IV Latin American Avocado Congress held in San José in July 2013, at wh ich it was 
revealed for the first time that ASBVd was present in Mexico.2551 Costa Rica states that, in mid -2013, 
it began the verification process to determine whether ASBVd was still absent from or had entered 
Costa  Rican territory and that, due to technic al constraints, in particular, the lack of laboratories 
able to carry out reliable diagnostic tests, the first results from the sampling survey carried out in 
2014 arrived in October, and the results of a number of inconclusive samples that had been sent t o 
Korea for sequencing arrived in early April 2015. Costa Rica asserts that, in light of the fact that all 
the samples examined tested negative for ASBVd, the country began its revision of the risk 
assessment for ASBVd and temporarily suspended the phytosa nitary authorizations for avocados 
from countries where ASBVd is present.2552 
7.1526.   Costa  Rica adds that, from the moment ASBVd was found in Mexico until Costa Rica adopted 
its temporary measure, Costa Rica acted with due caution, refraining from taking action on imported 
products until its territory was confirmed to be free of ASBVd. Costa Rica states, however, that the 
risk of entry for ASBVd was significant owing to Mexico's lack of transparency, as well as the difficulties 
Costa  Rica faced when it came to estab lishing, through sampling surveys and reliable diagnostic tests, 
that the country remained free of ASBVd and thus could regulate it as a quarantine pest.2553 
7.1527.   At the Panel's meeting with the parties and the experts, Costa Rica asserted that it is not 
true tha t it has imported avocado fruit from Mexico for more than 20 years when ASBVd was present 
in Mexico. Costa Rica states that ASBVd was detected in Mexico for the first time in 2009 and Costa 
Rica became aware of this fact in 2013. Costa Rica's first measure s were then applied as of 2015. 
Therefore, according to Costa Rica, it cannot be said that the risk has existed for 20 years.2554 
7.1528.   With regard to the continued trade  to date between Costa Rica and other countries where 
ASBVd and its disease are present , Mexic o submits that, among the main suppliers of fresh 
 
2546 Mexico's first written submission, para. 400.  
2547 Mexico's first written submission, para. 401.  
2548 Mexico's first written submission, para. 469.  
2549 Mexico's first written submission, paras.  470-472 (citing Servicio Nacional de Sanidad, Inocuidad y 
Calidad Agroalimentaria (SENASICA), Oficio B00.306 -2015 (2015), (Exhibit MEX -140); and Solicitud de 
informa ción sobre el análisis de aguacate importado a Costa Rica (2018), (Exhibit MEX -141)). 
2550 Costa Rica's first written submission, paras.  5.160 -5.161; response to Panel question No. 5.  
2551 Costa Rica's first written submission, para. 5.162 (citing Ochoa Ascencio  (2013), (Exhibit CRI -11)); 
response to Panel question No. 5.  
2552 Costa Rica's first written submission, para. 5.163 (citing Memorandum CIBCM -PCDV -044-2014 (2014), 
(Exhibit  MEX-115); and Memorandum CIBCM -PCDV -021-2015 (2015), (Exhibit MEX -134)); response to Panel 
question No.  5. 
2553 Costa Rica's first written submission, para. 5.164.  
2554 Costa Rica, transcript of the Panel's meeting with the parties and the experts, day 2, p. 30.  WT/DS524/R  
- 357 - 
  avocados for consumption are countries such as Chile, Peru, Honduras, Nicaragua, Guatemala and 
the United  States, which do not regulate ASBVd as a quarantine pest, and that Costa Rica has been 
trading since  2015 with countries such as Peru and Guatemala, in the territories of which ASBVd has 
been declared present.2555 Mexico adds that, once the measures at issue were imposed, Peruvian 
avocados supplanted Mexican ones in Costa Rica.2556 
7.1529.   According to Mexico, this shows that the probability of entry, establishment and spread of 
ASBVd through the pathway of fresh avocados imported for consumption is minimal or zero, 
therefore Costa  Rica should have considered the circumstances of the presence of ASBVd in  other 
countries and the fact that, for the main producers and importers of fresh avocados for consumption, 
ASBVd is not a regulated quarantine pest.2557 
7.1530.   Mexico adds that it is highly questionable that Costa Rica has remained free of the pathogen 
after havin g received fresh avocados for consumption from Mexico for so many years, in addition to 
continuing to market avocados from other countries where ASBVd is present, such as Peru 
or Guatemala, despite having full knowledge of this.2558 Mexico questions how ther e can have been 
more than 20 years of uninterrupted trade in avocados between Mexico and Costa Rica and other 
countries where ASBVd is present, without a single outbreak or instance of ASBVd being recorded 
in Costa  Rica.2559 
7.1531.   In Mexico's view, this situation seems paradoxical and there can only be two possible 
answers: (i)  that the risk of entry, establishment and spread of ASBVd defined as high by Costa  Rica 
is actually not, and the irrefutable proof of this is the alleged absence of ASBVd in its territory; o r 
(ii) that, as a result of this high risk of entry, establishment and spread, ASBVd is already present 
in Costa Rica.2560 For Mexico, this contradiction shows that the premises throughout Costa  Rica's 
risk assessment are incorrect.2561 
7.1532.   Costa Rica , for its part, states that Guatemala was subject to the suspension of 
phytosanitary authorizations for avocados adopted pursuant to Resolution DSFE -03-2015, and the 
only tonne that entered Costa Rica in 2015 did so before the resolution was adopted; and that, in 
the case of Peru, imports of avocados had already been certified  since 2012 as coming from a place 
of production free of ASBVd.2562 
7.1533.   Costa Rica asserts that, before ASBVd appeared in Mexico, other countries where the pest 
is present were already subject to phyt osanitary measures, and that, for example, Peru and the 
United  States  (California), where ASBVd has long been present, have for years been subject to the 
phytosanitary requirement to certify that avocados come from an ASBVd -free place of production.2563 
7.1534.   The Panel  observes that, according to Mexico, Costa Rica's risk assessment should have 
considered as specific circumstances (or taken into account as relevant factors under Article  5.2) 
the more than 20 years  of trade in fresh avocados for consumption betw een Mexico and Costa Rica 
and the continued trade to date between Costa Rica and other countries where ASBVd is present.  
 
2555 Mexico's first written submission, para. 402 (citing EPPO Global Database, World d istribution  (2019) , 
(Exhibit  MEX-48)). 
2556 Mexico's first written submission, para. 403 (citing " Importadores prevén un precio más alto para el 
aguacate Hass de Perú", La Nación  (2015), (Exhibit MEX -91)). 
2557 Mexico's first written submission, para. 404.  
2558 Mexico's second written submission, para. 177.  
2559 Mexico's opening statement at the first meeting of the Panel, para. 29.  
2560 Mexico's opening statement at the first meeting of the Panel, para. 29; second writt en submission, 
para. 180. 
2561 Mexico's opening statement at the first meeting of the Panel, para. 30.  
2562 Costa Rica's first written submission, paras.  5.165 -5.167 (citing Servicio Fitosanitario del Estado 
(SFE), Unidad de Análisis de Riesgo de Plagas, Guía Té cnica ARP 05, "Requisitos fitosanitarios para la 
importación de frutas, hortalizas, raíces, bulbos y tubérculos para consumo fresco o para la industria", NR -ARP-
GT05 (Perú) (2012)  (SFE, Phytosanitary requirements , NR-ARP-GT05 (Per u) (2012) ),  
(Exhibit CRI -37), p. 35).  
2563 Costa Rica's response to Panel question No. 5, para. 1 (citing SFE, Phytosanitary requirements,  NR-
ARP-GT05 (Peru) (2012), (Exhibit CRI -37); and Servicio Fitosanitario del Estado (SFE), Unidad de Análisis de 
Riesgo de Plagas, Guí a Técnica ARP 05, "Requisitos fitosanitarios para la importación de frutas, hortalizas, 
raíces, bulbos y tubérculos para consumo fresco o para la industria", NR -ARP-GT05 (Estados Unidos) (2012) 
(SFE, Phytosanitary requirements , NR-ARP-GT05 ( US) (2012)), (Exhibit  CRI-54)). WT/DS524/R  
- 358 - 
  7.1535.   The Panel understands that Mexico's concern regarding the failure to consider the more 
than 20 years of trade between Mexico and Costa Rica and the continued trade to date between 
Costa Rica and other countries where ASBVd is present is linked to the contradictions that Mexico 
finds in the fact that Costa  Rica has classified the risk of entry, establishment and spread of ASBVd 
in its terr itory as high, while, at the same time, determining that ASBVd is absent in its territory , 
despite the trade to which Mexico refers . 
7.1536.   The Panel observes that the parties disagree over how long  ASBVd was present in Mexico 
while Costa Rica continued importing  from Mexico, and, therefore, over how long  imports of Mexican 
avocados into Costa Rica posed a risk. The parties also disagree over whether imports from other 
countries where ASBVd is present posed and continue to pose a risk.  
7.1537.   With respect to the trade be tween Mexico and Costa Rica, Mexico submits that there are 
records dating back to 1948 that refer to the possible detection of avocado trees with ASBVd in 
Mexico, that an article was published  in 2009 , which for the first time confirmed the presence of 
ASBVd in Mexico through RT -PCR, and that the article speaks of surveys in 2006 -2007.2564 Costa 
Rica, for its part, contends that it is not true that Costa Rica has imported avocado fruit from Mexico 
for more than 20 years when ASBVd was present in Mexico. Costa  Rica states that ASBVd was 
detected in Mexico for the first time in 2009, at which time, according to Costa Rica, the incidence 
of ASBVd in the avocado -producing zones in Mexico was still low; that Costa Rica became aware of 
this fact in 2013; and that Co sta Rica's first measures were then applied as of 2015, therefore, 
according to Costa Rica, it cannot be said that the risk has existed for 20 years.2565 
7.1538.   The Panel observes that the table of avocado exports from Mexico to Costa Rica in the 
period 1993 -2015 s ubmitted by Mexico confirms that there was an uninterrupted trade in avocados 
between Mexico and Costa Rica for over 20 years.2566 The data are available from the cited source, 
UN COMTRADE.2567 Regarding the time during which there was some risk stemming from imports of 
Mexican avocados to Costa Rica, the Panel considers that it is not possible to determine with certainty 
at what point ASBVd appeared in avocados in Mexico. There is scientific literature that speaks of the 
presence of ASBVd in Mexico as far back  as 1948.2568 However, the statements on the presence of 
ASBVd in that literature are based on observations of symptoms, which would not be reliable to 
confirm scientifically the presence of ASBVd. The record does not contain any r esearch in which  
molecular diagnostic testing was used to detect  ASBVd in Mexico prior to the study b y De la Torre 
Almaráz et al. That study, published in 2009, was carried out using RT -PCR and dot -blot analysis on 
samples taken from Hass avocados in a survey in 2006 -2007.2569 Costa Rica's emergency measure, 
which temporarily suspended the importation of fresh avocados from Mexico, wa s issued in 2015. 
On the basis of the foregoing, ASBVd was present in Mexico's territory for at least 8 -9 years 
before  2015.  
7.1539.   With regard to trade with other countries where ASBVd is present, Mexico submits that 
among the main suppliers of fresh avocados fo r consumption are countries such as Chile, Peru, 
Honduras, Nicaragua, Guatemala and the United  States , which do not regulate ASBVd as a 
quarantine pest, and that Costa Rica has been trading since 2015 with countries such as Peru and 
Guatemala, in the terri tories of which ASBVd has been declared present.2570 Costa Rica asserts, for 
its part, that, before ASBVd appeared in Mexico, other countries where the pest was present were 
already subject to phytosanitary measures, and that, for example, Peru and the Unite d States  
 
2564 Mexico's response to Panel question No. 4, para. 15 (citing De la Torre et al. (2009),  
(Exhibit MEX -70); Saucedo Carabez et al. (2019), (Exhibit MEX -175); and Trask (1948), (Exhibit MEX -176)). 
2565 Costa Rica's response to Panel question No. 5; transcript of the Panel's meeting with the parties and 
the experts, day 2, p. 30.  
2566 Exportaciones de aguacate a Costa Rica originarias de México, 1993 -2015, (Exhibit MEX -217). 
2567 UN Comtrade Database, accessed 18  January  2022, https://comtrade.un.org/Data/ . 
2568 See Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 2; and Trask (1948), (Exhibit MEX -176), 
pp. 3-4. 
2569 De la Torre et al. (2009), (Exhibit MEX -70). 
2570 Mexico's first written submission, para. 402 (citing EPPO Global Database, World distribution (2019), 
(Exhibit MEX -48)). WT/DS524/R  
- 359 - 
  (California) where ASBVd has long been present, have for years been subject to the phytosanitary 
requirement to certify that avocados come from an ASBVd -free place of production.2571 
7.1540.   The exhibit that contains the requirements as of 2012 for Peru  mentions, as general 
requirements for fresh products for consumption:  "They must be properly packaged and identified 
and free of plant debris, soil, snails and slugs ." Under the country -specific requirements for Peru, it 
states that "[t]he consignment must be  accompanied by  an official phytosanitary certificate issued 
by the country of origin, which indicates, in the section for additional declarations, that it comes 
from a place of production free of avocado sunblotch viroid."2572 The exhibit that contains the 
requirements as of 2012 for the United States indicates that "[t]he consignment must be 
accompanied by an official phytosanitary certificate issued by the country of origin, which indicates, 
in the section for additional declarations, that it comes from a n area free of Bactrocera dorsalis, from 
a place of production free of avocado sunblotch viroid."2573, 2574 
7.1541.   The Panel is unable to ascertain with the information in the record whether imports from 
other countries where ASBVd is present posed and continue to pos e a risk.  
7.1542.   With regard to the contradiction that Mexico finds, the expert Robert Griffin remarks that 
the probability of entry and establishment may be low or negligible because the infection level is low 
in source countries or imported consignments, and that greater frequency and volume are required 
for enough infected seed to escape and germinate to introduce the disease. Mr Griffin considers that 
Costa  Rica is likely assuming a worst -case as the norm, and that Costa Rica cannot claim w ith 
absolute certainty that ASBVd is absent, but that Mexico 's assertion that Costa Rica 's position is 
contradictory is based on absolutes and he disagrees with it. For Mr Griffin, in reality, the situation 
is described by probabilities surrounded by uncer tainties, and the focus should not be on absolute 
conclusions but on whether the evidence supports the closest representation of reality.2575 
7.1543.   The expert Fernando Pliego Alfaro, for his part , asserts that if Costa Rica is still free from 
ASBVd, the most convi ncing explanation is that, to date, it has not used many seeds from imported 
fruit to develop rootstock in the country.2576 
7.1544.   Regardless of the disagreements between the parties over how long the presence of ASBVd 
in Mexico and in other countries posed or has been posing a risk, i n the Panel's view, the 
considerations that give rise to the contradictions identified by  Mexico are related to the assertion 
in Reports ARP -002-2017 and ARP -006-2016 on the absence of ASBVd in Costa Rica and to the 
assignment of v alues to some of the factors and elements of the assessment of the probability of 
entry, establishment and spread of ASBVd in Costa Rica . These factors and elements are , for 
example,  the probability of the pest being associated with the pathway at origin ( including the 
prevalence of ASBVd in Mexico), the probability of transfer to a suitable host, and the probability 
related to cultivation practices  and control measures. The Panel has already addressed the 
determination of freedom of ASBVd and the  aforementioned  factors and elements of the risk 
assessment, and has found flaws that affect the reliability of this determination of freedom and of 
the assignment of probability values to these factors and elements.  
7.1545.   The Panel considers that the contradictions identified by  Mexico should not arise in a risk 
assessment that is based on respectable scientific evidence and  coherent reasoning , and that can, 
in that sense, be objectively justified. Trade -related questions should be explained by or considered 
in the risk a ssessment through the analysis of the relevant factors and elements, such as the 
probability of the pest being associated with the pathway at origin (including the volume and 
 
2571 Costa Rica's response to Panel question No. 5, para. 1 ( citing SFE, Phytosanitary requirements,   
NR-ARP-GT05 (Peru) (2012), (Exhibit  CRI-37); and SFE, Phytosanitary requirements , NR-ARP-GT05 ( US) 
(2012), (Exhibit  CRI-54)). 
2572 SFE, Phytosanitary requirements,  NR-ARP-GT05 (Peru) (2012), (Exhibit CRI -37), pp. 1 and 35.  
2573 SFE, Phytosanitary requirements , NR-ARP-GT05 ( US) (2012), (Exhibit  CRI-54), p. 12.  
2574 Reports ARP-002-2017 and ARP -006-2016 also state that Costa Rica has regulations that concern 
Peru and the United  States  (California), citing SFE (2017). ( ARP-002-2017, (Exhibit MEX -84), p. 14; 
ARP-006-2016, (Exhibit MEX -85), p. 10). The relevant exhibit, referred to in Costa Rica's response to Panel 
question No. 19 (Exhibit CRI -140), contains information on the importation of avocados from January 2015 to 
December 2017, but does not mention the regulations. See SFE, Avocado imports statistics 2015 -2017 (2019) , 
(Exhibit CRI -140). 
2575 Robert Griffin's response to Panel question No. 52 for the experts.  
2576 Fernando Pliego Alfaro's response to Panel question No. 52 for the experts.  WT/DS524/R  
- 360 - 
  frequency of movement along the pathway and the prevalence of ASBVd in Mexico), t he probability 
of transfer to a suitable host (including dispersal mechanisms, the destination points in the PRA 
area, the time of the year at which import takes place, and the risks from by -products and waste), 
and the rate of reproduction and spread of A SBVd.  
7.1546.   In view of the foregoing, the Panel does not consider that the  more than 20 years  of trade 
in fresh avocados for consumption between Mexico and Costa Rica and the continued trade to date 
between Costa  Rica and other countries where ASBVd is present s hould be viewed as specific 
circumstances (or factors under Article  5.2) to be analysed separately. However, in th e Panel's view, 
Costa  Rica should have considered the trade flows between itself and the countries where ASBVd is 
present when analysing vario us factors or elements of the risk assessment. These trade flows affect 
the magnitude of the risk of entry, establishment and spread of ASBVd in Costa Rica, and also 
constitute information that is relevant to the consideration of the measures that might be  applied.  
7.1547.   As regards Mexico's status as the world's leading exporter of fresh avocados for 
consumption , Mexico  asserts that Costa Rica should have considered the factors that make Mexico 
the world's main supplier of fresh avocados, such as the quality of i ts fruit, which is the result of the 
high sowing, crop, harvesting and packing standards that are monitored by the authorities and the 
industry workers themselves.2577 Mexico adds that there has been no fall in avocado production and 
yield levels since the n otification of the presence of ASBVd in Michoacán, and, on the contrary, these 
levels have increased, meaning that Mexico's yield levels are much higher than the global standard 
and than those of Costa Rica.2578 
7.1548.   Mexico submits that, if Costa Rica had considered the circumstances of the avocado 
production in Mexico, it would have conducted the risk assessment differently and would probably 
have reached a different conclusion with regard to the likelihood of entry, establishment and spread 
of ASBVd and i ts disease.2579 
7.1549.   As part of its arguments under Article  5.2 of the SPS  Agreement , Mexico also submits that 
Costa  Rica's risk assessment failed to take into account as another relevant factor the fact that, 
despite ASBVd being present in Mexico, it has not led  to the devastation of the industry and there is 
no evidence to suggest that ASBVd and its disease have given rise to a phytosanitary risk or problem 
for Mexico.2580 
7.1550.   Costa Rica , for its part, contends that Mexico fails to explain why this information is 
relevant; that the avocado industries in Mexico and Costa Rica cannot be compared at any level; 
and that the fact that Mexico has been able to maintain a stable yield in its production, despite the 
presence of ASBVd, says nothing about the serious economic con sequences that Costa  Rica's 
avocado production could suffer as a result of the viroid entering the country.2581 
7.1551.   Costa Rica states that it does not consider that, in order to conduct a risk assessment 
appropriate to the circumstances, it should have taken int o account Mexico's position as the world's 
leading avocado exporter, but that it did take into account the fact that Mexico has traditionally been 
the main exporter of avocados to Costa Rica, which is why, since Costa Rica learned in 2013 of the 
presence o f ASBVd in Mexico, all necessary steps have been taken to ensure the implementation of 
appropriate risk mitigation measures that are consistent with all Costa Rica's obligations under the 
SPS Agreement.2582 
7.1552.   The Panel  notes that, according to Mexico, Costa Ri ca should have considered the factors 
that make Mexico the world's main supplier of fresh avocados, such as the quality of its fruit, which 
is the result of the high sowing, crop, harvesting and packing standards. However, Mexico fails to 
explain why these  factors would affect the evaluation of the likelihood of entry, establishment and 
 
2577 Mexico's first written submission, para. 405.  
2578 Mexico's first written submission, paras.  406-407 (citing Mexico, The avocado in Mexico (2019), 
(Exhibit  MEX-40)). 
2579 Mexico's first written submission, para. 408.  
2580 Mexico's first written submission, para. 468.  
2581 Costa Rica's first written submission, para. 5.168.  
2582 Costa Rica's second written submission, para. 3.24.  WT/DS524/R  
- 361 - 
  spread of ASBVd in Costa Rican territory, and why they would constitute a circumstance to which 
Costa  Rica's risk assessment must be appropriate.  
7.1553.   Mexico refers to the fact t hat there has been no fall in avocado production and yield levels 
in the country since the notification of the presence of ASBVd in Michoacán, and, on the contrary, 
these levels have increased; and that Costa Rica failed to take into account in its risk as sessment 
that ASBVd has not led to the devastation of the Mexican industry and there is no evidence that 
ASBVd has given rise to a phytosanitary risk or problem for Mexico.  
7.1554.   The Panel considers that these situations could be related to the evaluation of pot ential 
economic consequences associated with the entry, establishment and spread of ASBVd. The expert 
Robert  Griffin notes that the primary factor for measuring harm is usually the impact on yield, which 
is quantified based on the market value of the lost crop. Mr Griffin adds that, in many cases, analysts 
may draw from the experiences of other countries, which can provide valuable insight.2583 
7.1555.   The Panel does not consider, however, that, when evaluating the potential economic 
consequences, Costa Rica should n ecessarily have considered that there has been no fall in Mexico's 
production levels or that ASBVd has not led to the devastation of the Mexican industry. Costa  Rica 
should have assessed the potential economic consequences by gathering sufficient scientifi c 
evidence, which could include information on the experience of the Mexican industry if considered 
applicable, but also other types of information, provided that this information was sufficient to 
support the risk analyst's conclusions.  
7.1556.   In light of the fo regoing, in the Panel's view, the circumstances identified by Mexico as 
specific circumstances that Costa Rica should have considered for its risk assessment to be 
appropriate to the circumstances have been addressed previously or do not constitute a 
circumstance that should have been considered as such separately (or as a factor of Article  5.2). 
7.1557.   However, the Panel reiterates its conclusion in paragraph 7.1 513 above, that, given the 
flaws found in relation to the consideration of the circumstances that are relevant to Costa  Rica's 
risk assessment, the risk assessment in Reports ARP -002-2017 and ARP -006-2016 cannot be 
considered as a risk assessment appropriate to the circumstances  within the meaning of Article  5.1 
of the SPS  Agreement . 
7.4.5.6   Whether the risk asses sment techniques of international organizations were 
taken into account  
7.1558.   Mexico  submits that Costa Rica did not take into account ISPM Nos.  4, 6, and 11 when 
preparing Reports ARP -006-2016 and ARP -002-2017, contrary to the third aspect necessary to 
determine whether Costa Rica carried out a risk assessment in accordance with Article  5.1 of the 
SPS Agreement .2584 In its responses to the Panel's questions, Mexico contends that Costa  Rica 
should have taken into account ISPM Nos. 2 and 112585, and that these  ISPMs are the risk assessment 
techniques referred to in Article  5.1, since they are specific standards concerning risk assessment 
techniques developed by the IPPC, the relevant international organization in matters of plant 
health.2586 
7.1559.   Mexico maintains that  Costa Rica failed to take into account the relevant international 
standards for a PRA, because: (i)  it did not use as a basis the methodology proposed in 
ISPM No. 112587; (ii)  the scientific evidence included in the PRAs to justify each aspect of 
ISPM No. 11 is not based on conclusions regarding the probability of entry, establishment and spread 
of ASBVd and its disease through the pathway of fresh avocados imported for consumption from 
Mexico2588; and (iii)  contrary to the recommendations in ISPM Nos. 4 and 6, Costa  Rica did not 
consider the requirements and procedures for claiming that its territory is ASBVd -free as an element 
 
2583 Robert Griffin's response to Panel question No. 114(c) for the experts.  
2584 Mexico's first written submission, para. 413. 
2585 Mexico's response to Panel question No. 103(c), para. 141.  
2586 Mexico's response to Panel question No. 103(d), para. 142. 
2587 Mexico's first written submission, para. 410. 
2588 Mexico's first written submission, para. 411. WT/DS524/R  
- 362 - 
  of the pest risk assessment, which means that its SPS measures lack the scientific basis needed to 
argue that all of Costa Rica i s free of  ASBVd.2589 
7.1560.   For Mexico, the fact that Costa Rica cited sections of ISPM No.  11 does not mean that it 
based its reasoning on the instrument. Accordingly , Costa Rica cannot be considered to have taken 
into account the risk assessment techniques set ou t therein.2590 
7.1561.   Mexico also asserts that Costa Rica did not clarify how it estimated the probability of the 
introduction of ASBVd from discarded seeds within the meaning of ISPM No.  5, which shows that it 
did not conduct an assessment as appropriate to the ci rcumstances and in accordance with the 
assessment techniques recommended by the IPPC.2591 
7.1562.   Costa Rica  argues that Mexico has failed to demonstrate how Costa  Rica's risk assessment 
did not "take into account" risk assessment techniques developed by the relevan t international 
organizations. Costa Rica states that, in the phytosanitary domain, PRA techniques are set out mainly 
in ISPM No.  11, and that, while there is no need to respect each and every aspect of ISPM No.  11 
or to achieve a specific result, the risk analyst must consider or pay attention to the stipulations of 
this international standard.2592 
7.1563.   Costa Rica adds that it is fully aware of the importance of the IPPC guidelines and the 
procedural guidelines in the ISP Ms, and that, because of this, it went beyond the obligation to take 
into account the ISPMs and produced a manual that transposes the recommendations in ISPM  No. 11 
into a domestic tool with which the SFE must comply. Costa Rica states that the manual, ado pted 
on a voluntary basis, helps to increase transparency as to how the SFE analyses pest risks, and 
ensures that the risk analyses take into account the relevant factors in ISPM No.  11.2593 
7.1564.   Costa Rica also submits that its risk assessment followed the stipu lations of its manual with 
respect to conducting a PRA. Since these stipulations are based entirely on ISPM  No. 11, its risk 
assessment necessarily took into account risk assessment techniques developed by the relevant 
international organizations.2594 Costa Rica asserts that the failure to follow each and every aspect of 
an international standard does not render the risk assessment inconsistent with Article  5.1 of the 
SPS Agreement , since Members are free to conduct the risk assessment according to the approp riate 
methodology that they deem relevant, and taking into account risk assessment techniques does not 
require that the assessment be "based on" or "conform with" these techniques.2595 
7.1565.   Costa Rica adds that the best way to examine whether its phytosanitary au thority took into 
account international standards – in this case, ISPM No.  11 – is to address this element in the risk 
assessment analysis under Article  5.1 of the SPS  Agreement .2596 
7.1566.   The European  Union , as a third party, is of the view that Article  5.1 of th e SPS  Agreement 
requires the Member to take into account the risk assessment techniques included in ISPM Nos. 2 
and 11, to the extent that those techniques are deemed to have been developed by the relevant 
international organizations. However, Article  5.1 does not require that the Member comply with such 
techniques.2597 
7.1567.   The European  Union  considers that "to take into account" is less stringent than "to base 
on" or "to conform with". Nonetheless, the risk assessment techniques developed by the relevant 
interna tional organizations can provide very useful guidance as to whether the risk assessment at 
issue constitutes a proper risk assessment within the meaning of Article  5.1.2598 
 
2589 Mexico's first written submission, pa ra. 412. 
2590 Mexico's second written submission, para. 193.  
2591 Mexico's second written submission, para. 126.  
2592 Costa Rica's second written submission, para. 3.25.  
2593 Costa Rica's second written submission, paras.  3.26-3.27. 
2594 Costa Rica's first written submission, para. 5.77.  
2595 Costa Rica's first written submission, para. 5.101.  
2596 Costa Rica's second written submission, para. 3.27.  
2597 European  Union 's response to Panel questions Nos. 1(c) and (d), para. 10.  
2598 European  Union 's response to Panel question No. 7, paras.  23–25 (citing Panel  Report s, 
Japan  – Apples , para. 8.241; and US/Canada – Continued Suspension , para. 7.458).  WT/DS524/R  
- 363 - 
  7.1568.   Canada  states , as a third party , that ISPM Nos. 2 and 11 are "risk assessment techniq ues" 
relevant to any analysis under Article  5.1, and that these ISPMs were developed by a relevant 
international organization, the IPPC, recognized in Annex A, paragraph 3, as an international body 
that develops international standards, guidelines and reco mmendations.2599 
7.1569.   Canada submits that ISPM No.  2 sets out general requirements for the PRA. Canada recalls 
that the Appellate Body in Australia – Apples  described ISPM No.  2 as "a framework describing the 
pest risk analysis process"; found that ISPM No.  11 "provides details for the conduct of pest risk 
analysis to determine if pests are quarantine pests and describes the integrated processes to be 
used for risk assessment, as  well as the selection of risk management options"; and determined 
that, read together, ISPM Nos. 2 and 11 "present the general framework for conducting a pest risk 
assessment".2600 Canada adds that the Appellate Body then applied these risk assessment 
techn iques to evaluate Australia's assessment under Article  5.1.2601 
7.1570.   Canada asserts that there is no requirement for risk assessments to be based on, or 
conform to, risk assessment techniques developed by relevant international organizations2602, but 
that Article  5.1 still requires WTO Members to "give consideration" to such techniques when 
conducting their risk assessments.2603 
7.1571.   El Salvador  states , as a third party , that ISPM No.  2 establishes a framework that 
describes the PRA process, and that ISPM No.  11 provides details for the conduct of a PRA to 
determine if pests are quarantine pests. El Salvador considers that ISPM Nos. 2 and 11 constitute 
international standards applicable to the risk assessment that each Member must undertake and 
establish the stages of the procedure to be included in the PRA, in accordance with Article  5.1 of the 
SPS Agreement .2604 
7.1572.   El Salvador adds that ISPM Nos. 2 and 11 establish the framework for the PRA process and 
that the process set out in ISPM Nos. 2 and 11 is a risk assessment technique developed by FAO as 
the relevant international organization, in compliance with Article  5 of the SPS  Agreement.2605 
7.1573.   The Panel  recalls that Article  5.1 of the SPS  Agreem ent requires Members to ensure that 
their sanitary or phytosanitary measures are based on an assessment, as appropriate to the 
circumstances, of the risks to human, animal or plant life or health, taking into account risk 
assessment techniques developed by  the relevant international organizations . 
7.1574.   The SPS  Agreement  does not specifically identify the relevant international organizations 
for purposes of Article  5.1. However, the Panel notes the observation of the panel in US – Continued 
Suspension  that the re levant international organizations for the purposes of harmonization, as 
identified in paragraph 3 of Annex A to the SPS  Agreement , are relevant international organizations 
for purposes of Article  5.1.2606 
7.1575.   In Australia – Apples , in the context of Article  5.1, the Appellate Body noted that, according 
to paragraph 3(c) of Annex A  to the SPS  Agreement , the international standards, guidelines, and 
recommendations relevant for plant health are those developed under the auspices of the IPPC in 
cooperation with r egional organizations operating within the framework of the IPPC.2607 
 
2599 Canada's response to Panel question No. 1(c), para. 5.  
2600 Canada's response to Panel question No. 1(c), para. 6 (citing Appellate Body Report, 
Australia  – Apples , para. 245 and fn  376).  
2601 Canada's response to Panel question No. 1(c), para. 6 (citing Appell ate Body Report, 
Australia  – Apples , paras.  248 and 261).  
2602 Canada's opening statement at the first meeting of the Panel, para. 18 (citing Appellate Body Report, 
Australia – Apples , para. 246); response to Panel question No. 7(a), para. 19 (citing Appellat e Body Report, 
Australia – Apples , para. 246).  
2603 Canada's opening statement at the first meeting of the Panel, para. 18.  
2604 El Salvador's response to Panel question No. 1(c).  
2605 El Salvador's response to Panel question No. 1(d).  
2606 Panel  Report , US – Continue d Suspension , para. 7.446.  
2607 Appellate  Body Report , Australia – Apples , para. 245.  WT/DS524/R  
- 364 - 
  7.1576.   In this context, this Panel considers that the ISPMs, which were developed within the 
framework of the IPPC, constitute standards developed by a relevant international organization 
within the meaning of Article  5.1 of the SPS  Agreement . 
7.1577.   Regarding the obligation to "take into account", the ordinary meaning of the phrase, 
according to the Diccionario de la lengua española  of the Real Academia Española, is " tener presente, 
considerar " ("to kee p in mind, consider ").2608 
7.1578.   In interpreting Article  5.3 of the SPS  Agreement , the panel in Russia – Pigs (EU)  reviewed 
other panels' interpretations of expressions similar to "shall take into account" in Articles  5.1, 5.2, 
5.4, and 10.1 of the SPS  Agreement , and 12.3 of the TBT  Agreement , and expressed its 
agreement  with these interpretations.2609 That panel referred to, among other matters, the panel in 
US – Animals , which stated that "to take into account" means "to take into consideration, notice" 
and does no t require any particular result of that consideration.2610 
7.1579.   The panel in Japan – Apples  expressed the view that the requirement to take into account 
risk assessment techniques developed by the relevant international organizations does not impose 
that a risk a ssessment be "based on" or "in conformity with" such risk assessment techniques, and 
that, while such techniques should be considered relevant, a failure to respect each and every aspect 
of them would not necessarily signal that the risk assessment is not in conformity with Article  5.1.2611 
The panel added that, nonetheless, reference to these risk assessment techniques can provide very 
useful guidance as to whether the risk assessment at issue constitutes a proper risk assessment 
within the meaning of Articl e 5.1.2612 
7.1580.   The Appellate Body in Australia – Apples  noted that the obligation to conduct a pest risk 
assessment that takes into account internationally developed risk assessment techniques does not 
imply that compliance with such techniques alone suffices to  demonstrate compliance with a 
Member's obligations under the SPS  Agreement .2613 The Appellate Body added that, however, 
reference by the risk assessor to such techniques is useful both to the risk assessor, should a dispute 
arise in relation to the risk assessment, and to the panel that is called upon to review the consistency 
of tha t risk assessment with the provisions of the SPS  Agreement .2614 
7.1581.   It should be noted that the panel in EC – Approval and Marketing of Biotech Products  
expressed the view that the phrase "taking into account risk assessment techniques developed by 
the relevant international organizations" addresses how risks are to be assessed.2615 
7.1582.   In light of the foregoing, this Panel considers that its task in this case is to identify whether 
there are risk assessment techniques for the purposes of Article  5.1 developed in the f ramework of 
the IPPC, and to determine whether, in carrying out its risk assessment, Costa Rica has taken these 
into account, in the sense of taking into consideration. The Panel agrees that the risk assessment 
need not be based on or in conformity with ri sk assessment techniques, and that compliance with 
such techniques alone is not sufficient to meet the requirements of Article  5.1, but also notes that 
these techniques provide important guidance on how to conduct a risk assessment, in this case a 
phytosan itary risk assessment.  
7.1583.   The Panel will now address the ISPMs that Mexico identified as risk assessment techniques 
that, in its view, Costa Rica did not take into account in its risk assessment, i.e. ISPM Nos. 2, 4, 6, 
and 11. The Panel will determine whethe r these ISPMs are risk assessment techniques for the 
 
2608 Diccionario de la lengua española , Real Academia Española , accessed 30  November  2021,  
https://dle.rae.es/cuenta . 
2609 Panel  Report , Russia – Pigs (EU) , paras.  7.760 –7.767.  
2610 Panel  Report , Russia – Pigs (EU) , para. 7.763 (citing Panel  Report s, US – Animals , para. 7.401, in 
turn citing Appellate Body Report, Korea – Various Measures on Beef , para. 111; and Panel  Report s, 
US – COOL , para. 7.776).  
2611 Panel  Report , Japan – Apples , para. 8.241. See also Panel  Report s, Canada – Continued Suspension , 
paras. 7.452 –7.459; and US – Continued Suspension , paras.  7.462 –7.469; and Appellate Body Report, 
Australia  – Apples , para. 246.  
2612 Panel  Report , Japan – Apples , para. 8.241.  
2613 Appellate Body Report, Australia – Apples , para. 246.  
2614 Appellate Body Report, Australia – Apples , para. 246.  
2615 Panel  Report s, EC – Appro val and Marketing of Biotech Products , para. 7.3022.  WT/DS524/R  
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  purposes of Article  5.1 of the SPS  Agreement , and whether Costa Rica took them into account when 
conducting its risk assessment.  
7.1584.   As the Panel already explained in section 2.2 above, ISPM Nos. 2, 4, 6, and 11 are 
international standards developed in the framework of the IPPC.  
7.1585.   The Panel does not consider ISPM No.  4, "Requirements for the establishment of pest free 
areas", to be a risk assessment technique for the purposes of Article  5.1 of the SPS  Agreement , 
since it describes the requirements for the establishment and use of PFAs as a risk management 
option for phytosanitary certification of plants and plant products a nd other regulated articles 
exported from the PFA or to support the scientific justification for phytosanitary measures taken by 
an importing country for protection of an endangered PFA2616, which does not constitute guidance 
on how to conduct a risk assessm ent. Moreover, Mexico states that it "agrees with the experts that 
Costa Rica was not required to establish a PFA within its territory".2617 
7.1586.   As noted in paragraph 7.459  above, ISPM No.  6, "Surveillance", is referred to in ISPM No.  8, 
"Determination of pest status in an area", which is in turn referred to in ISPM No.  11. ISPM No.  6 is 
a tool that describes the components of survey and monitoring systems for the purpose of pest 
detection and the supply of information for use in PRAs, the establishment of PFAs and, where 
appropriate, the preparation of pest lists.2618 As such, ISPM No.  6 is relevant to risk assessment 
techniques but does not in itself constitute a risk assessment technique for the purposes of 
Article  5.1 of the SPS  Agreement . 
7.1587.   The parties and third parties agree that ISPM Nos. 2 and 11  are risk assessment techniques 
pursu ant to Article  5.1.2619 ISPM Nos. 2 and 11 have also previously been accepted as risk 
assessment techniques for the purposes of Article  5.1 by the Appellate Body, which acknowledged 
that ISPM Nos. 2 and 11 "present the general framework for conducting a pest  risk assessment".2620 
7.1588.   As explained, with regard to its scope, ISPM No.  2 provides a framework that describes the 
PRA process within the scope of the IPPC, and introduces the three stages of PRA, i.e. initiation, pest 
risk assessment and pest risk management .2621 This standard provides detailed guidance on stage  1 
(initiation), summarizes stages 2 (risk assessment) and 3 (risk management)2622, and refers to other 
ISPMs, including ISPM No.  11, for further analyses throughout PRA Stages 2 and 3.2623 With regard 
to its scope, ISPM No.  11 provides details for the conduct of PRA to determine if pests are quarantine 
pests, and describes the integrated processes to be used for risk assessment as well as the selection 
of risk management options.2624 
7.1589.   In short, ISPM No.  2 provides a framework that describes the PRA process2625, while ISPM 
No. 11 provides specific guidance on quarantine pests  PRA.2626 Therefore, ISPM Nos. 2 and 11 
provide guidance on how to conduct a pest risk assessment and identify its stages and what they 
should include.  
7.1590.   In view of the above, the Panel agrees with the parties and third parties that ISPM Nos. 2 
and 11 constitute risk  assessment techniques for the purposes of Article  5.1 of the SPS  Agreement . 
 
2616 ISPM No. 4,  (Exhibit MEX -73), p. 4.  
2617 Mexico's comments on the experts' responses to Panel questions Nos. 164, 165, and 167 for the 
experts; response to Panel question No. 129.  
2618 CIPF, Guía de la CIPF sobre Vigilancia Fitosanitaria  (2019) , p. 1, accessed 30  November  2021, 
https://www.fao.org/3/ca3764es/CA3764ES.pdf .  
2619 Mexico's response to Panel question No. 103(d), para. 142; Costa Rica's response to Panel questions 
Nos. 103(a) and (c), para. 5; second written submission, para. 3.24. See also European  Union 's response to 
Panel questions No s. 1(c) and (d), paras.  9 and 10; Canada's response to Panel question No. 1(c), para. 5; El 
Salvador's response to Panel question No. 1(d).  
2620 Appellate Body Report, Australia – Apples , fn 356 (citing Panel  Report , Australia – Apples , 
paras.  2.69 and 2.71).  
2621 ISPM No. 2, (Exhibit MEX -72), p. 4.  
2622 ISPM No. 2, (Exhibit MEX -72), p. 4.  
2623 ISPM No. 2, (Exhibit MEX -72), pp. 4 and 6.  
2624 ISPM No. 11, (Exhibit MEX -77), p. 5.  
2625 ISPM No. 2, (Exhibit MEX -72), p. 4.  
2626 ISPM No. 2, (Exhibit MEX -72), p. 13.  WT/DS524/R  
- 366 - 
  7.1591.   The Panel notes that Manual NR -ARP-PO-01_M -01 reflects most of the factors and elements 
described in ISPM Nos. 2 and 11 for a pest risk assessment. As a result, Reports ARP -002-2017 and 
ARP-006-2016 generally follow the structure described in these ISPMs and contain most of the 
factors and elements suggested therein. Regarding how to conduct the risk assessment, the Panel 
considers that Costa Rica has taken into consideration the g eneral framework for conducting a pest 
risk assessment established in ISPM Nos. 2 and 11. Although the Panel has found flaws in the 
assessment of the factors and elements suggested in the ISPM, including in terms of the insufficient 
documentation of uncert ainty, an issue specifically addressed in ISPM Nos. 2 and 11, the Panel does 
not consider these flaws sufficient to conclude that Costa Rica failed to take into account ISPM Nos.  2 
and 11 in its assessment of risks in Reports ARP -002-2017 and ARP -006-2016.  Thus, in the Panel's 
view, Costa Rica took into account ISPM Nos. 2 and 11 as risk assessment techniques within the 
meaning of Article  5.1 of the SPS  Agreement . 
7.1592.   In summary, the Panel concludes that ISPM Nos. 2 and 11 are risk assessment techniques 
develop ed by one of the relevant international organizations that Costa Rica should have taken into 
account when conducting its risk assessment; and that Costa Rica did take into account ISPM Nos.  2 
and 11 when conducting its risk assessment. The Panel does not c onsider ISPM Nos. 4 and 6 to be 
risk assessment techniques for the purposes of Article  5.1 of the SPS  Agreement . 
7.4.5.7   Whether the factors listed in Article  5.2 of the SPS  Agreement  were taken into 
account  
7.1593.   Mexico  claims that Costa Rica's measures are contrary to  Article  5.2 of the 
SPS Agreement .2627 Mexico asserts that Article  5.2 of the SPS  Agreement  complements the 
obligation set forth in Article  5.1 by indicating the elements that Members must take into account in 
the assessment of risks.2628 Mexico submits that, when conducting the risk assessment, Costa Rica 
should have considered the elements listed in that article, but Costa Rica has failed to provide the 
elements necessary to demonstrate that it did so.2629 
7.1594.   Mexico maintains that, in its risk assessment, Costa Ri ca did not consider available scientific 
evidence, relevant inspection, sampling and testing methods, the prevalence of ASBVd, quarantine 
treatments, or other relevant factors.2630 
7.1595.   Costa Rica  submits that Mexico has failed to establish that its measures are inconsistent 
with Article  5.2 of the SPS  Agreement .2631 Costa Rica asserts that Mexico does not present any new 
arguments in relation to this Article.2632 For Costa Rica, while it is logical to take into account the 
elements contained in Article  5.2 in the risk assessment analysis under Article  5.1 of the 
SPS Agreement , Mexico uses Article  5.2 to repeat the arguments related to its claim under 
Article  5.1.2633 
7.1596.   Costa Rica contends that it has already set out , in the context of Article  5.1, how its risk 
assessment took into account risk assessment techniques developed by the relevant international 
organizations, which, in this case, are reflected in ISPM No.  11. Costa Rica adds that the factors 
listed in Articles 5.2 and 5.3 of the SPS  Agreement  are already contained in ISPM No.  11. Thus, a 
risk assessment that takes into account ISPM No.  11 can be expected to address the relevant factors 
in Articles 5.2 and 5.3, as is the case with Costa Rica's risk assessment.2634 
7.1597.   Costa Rica concludes that, for the same reasons given under Article  5.1 of the 
SPS Agreement , Mexico has not substantiated its claim that Costa Rica has failed to conduct a proper 
risk assessment tha t takes into account risk assessment techniques developed by the relevant 
 
2627 Mexico's first written submission, p. 105.  
2628 Mexico's first written submission,  para. 425. 
2629 Mexico's first written submission,  para. 429. 
2630 Mexico's first written submission,  pp. 105 –123. 
2631 Costa Rica's first written submission, p. 67.  
2632 Costa Rica's fir st written submission,  para. 5.173.  
2633 Costa Rica's first written submission,  paras.  5.178 -5.179.  
2634 Costa Rica's first written submission,  para. 5.182.  WT/DS524/R  
- 367 - 
  international organizations, and that the Panel should therefore reject Mexico's claim under 
Article  5.2 of the SPS  Agreement .2635 
7.1598.   Regarding the expression "to take into account" in Ar ticles 5.1, 5.2, and 5.3, the 
European  Union  asserts, as a third party, that its ordinary meaning is "to take into consideration" 
and that it does not require any particular result of that consideration, as confirmed by the case 
law.2636 For the European  Union, the expression "taking available scientific evidence into account" 
does not require that a Member conform its actions to a particular conclusion in a particular scientific 
study. Rather, it seeks to ensure that a Member, when assessing risk with the ai m of formulating an 
appropriate SPS measure, has as wide a range as possible of scientific information before it to ensure 
that its measure will be based on sufficient scientific data and supported by scientific principles.2637 
7.1599.   Canada  states, as a third part y, that the phrase "take into account" has been interpreted 
to mean "give consideration" and "take into consideration, notice".2638 Canada considers that, in the 
context of Articles 5.2 and 5.3, the phrase "take into account" means that Members must give 
consideration to the evidence and information in conducting the risk assessment.2639 Canada asserts 
that Members are required to "take into account" the factors listed in Articles 5.2 and 5.3 but are 
not required to show that they incorporated the factors in their assessment of risks2640 or to conform 
their actions to a particular conclusio n in a particular scientific study.2641 For Canada, the obligation 
to "take into account" will vary according to the specific facts of the case, the SPS risks at issue and 
the risk assessment conducted by the Member.2642 
7.1600.   El Salvador  states, as a third party, t hat the Appellate Body has interpreted the expression 
"take into account" to mean "take into consideration, notice". According to El Salvador, the factors 
referred to in Articles 5.1, 5.2, and 5.3 should be considered and assessed, and the SPS measure 
should be based on or supported by them.2643 
7.1601.   The Panel  recalls that Article  5.2 requires Members to take into account certain factors in 
the assessment of risks. These factors are: (i)  available scientific evidence; (ii)  relevant processes 
and production methods ; (iii) relevant inspection, sampling and testing methods; (iv)  prevalence of 
specific diseases or pests; (v)  existence of pest - or disease -free areas; (vi) relevant ecological and 
environmental conditions; and (vii) quarantine or other treatment.  
7.1602.   The Pane l further recalls that, in considering the factors to be taken into account when 
conducting a risk assessment, the Appellate Body in EC – Hormones  referred to the listing of factors 
in Article  5.2 of the SPS  Agreement  and stated that it is not a closed lis t.2644 The Appellate Body 
added that "[i]t is essential to bear in mind that the risk that is to be evaluated ... is not only risk 
ascertainable in a science laboratory operating under strictly controlled conditions, but also risk ... 
in the real world".2645 
7.1603.   The panel in US – Continued Suspension  was of the view that taking available scientific 
evidence into account "does not require that a Member conform its actions to a particular conclusion 
in a particular scientific study", since "[t]he available scientific  information may contain a multiplicity 
of views and data on a particular topic".2646 Article  5.2 aims to ensure that a Member, when assessing 
 
2635 Costa Rica's first written submission,  para. 5.183; second written submission, para. 3.58.  
2636 European  Union 's response to Panel question No. 7, paras.  21-22. 
2637 European  Union 's response to Panel question No. 7, para. 26 (citing Panel  Report , US – 
Continued  Suspension , para. 7.480).  
2638 Canada's response to Panel question No. 7(a), para. 18 (citing Panel  Report , Russia – Pigs (EU) , 
para. 7.767); response to question No. 7(c), para. 22; opening statement at the first meeting of the Panel, 
para. 17 (citing Panel  Report , Russia – Pigs (EU) , para. 7.767).  
2639 Canada's opening statement at the first meeting  of the Panel, para. 19.  
2640 Canada's response to Panel question No. 7(a), para. 20.  
2641 Canada's response to Panel question No. 7(a), para. 20 (citing Panel  Report , US – Continued Suspension , 
para. 7.480).  
2642 Canada's response to Panel question No. 7(b), para. 21.  
2643 El Salvador's response to Panel questions Nos. 7(a) and (c).  
2644 Appellate Body Report, EC – Hormones , para. 187. See also Appellate Body Report, 
Australia  – Apples , para. 207.  
2645 Appellate Body Repor t, EC – Hormones , para. 187. See also Appellate Body Reports, US/Canada – 
Continued Suspension , para. 527; India – Agricultural Products , para. 5.19; and Australia – Apples , para. 207.  
2646 Panel  Report , US – Continued Suspension , para. 7.480.  WT/DS524/R  
- 368 - 
  risk, "has as wide a range as possible of scientific information before it to ensure that its measure 
will be based  on sufficient scientific data and supported by scientific principles".2647 
7.1604.   The Panel reiterates that, according to the Diccionario de la lengua española  of the Real 
Academia Española, the ordinary meaning of the phrase " tener en cuenta " ("take into account ") is 
"tener presente, considerar " ("to keep in mind, consider ").2648 
7.1605.   This Panel also considers relevant to its analysis under Article  5.2 the observations of the 
panel in Russia – Pigs (EU)  on the phrase "take into account" in the context of Article  5.3 of t he 
SPS Agreement . As explained, the panel in Russia – Pigs (EU)  reviewed other panels' interpretations 
of expressions similar to "shall take into account" in Articles 5.1, 5.2, 5.4, and 10.1 of the 
SPS Agreement  and 12.3 of the TBT  Agreement , and expressed  its agreement with these 
interpretations.2649 The panel referred to, among other matters, the panel in US – Animals , which 
noted that "to take into account" means "to take into consideration, notice" and does not require 
any particular result of that consid eration.2650 
7.1606.   As to the relationship between Articles 5.1 and 5.2 of the SPS  Agreement , previous panels 
have considered that "[t]hese provisions directly inform each other", in that Article  5.2 "sheds light 
on the elements that are of relevance in the assessm ent of risks" foreseen in Article  5.12651, that 
Article  5.2 is inextricably linked to Article  5.12652, and that Article  5.2 "instructs WTO Members on 
how to conduct a risk assessment".2653 
7.1607.   In accordance with the foregoing, the Panel will now analyse whether, in the assessment 
of risks, Costa Rica has taken into account, in the sense of take into consideration, the factors listed 
in Article  5.2 of the SPS  Agreement  that were mentioned by Mexico.  
7.1608.   With regard to available scientific evidence , Mexico  contends that the conclusions of the 
PRAs are not based on relevant scientific evidence2654 and that, from an analysis of the bibliographic 
references and scientific evidence referred to in the PRAs, it cannot be concluded that the scientific 
evidence considered by Costa Rica is adequate and sufficient to support its hypothesis.2655 
7.1609.   Costa Rica , for its part , submits that Mexico failed to establish that its measures are 
inconsistent with Article  5.2 of the SPS  Agreement2656, and states that Mexico again disputes, under 
Article  5.2, the relevance of the scientific evidence used by Costa Rica in its ris k assessment 
challenged under Article  5.1.2657 
7.1610.   The Panel  observes that, as explained, the list of factors provided in Article  5.2 must be 
taken into account in the assessment of risks, and a panel may therefore examine the available 
scientific evidence and o ther factors when analysing claims related to the assessment of risks under 
Article  5.1 of the SPS  Agreement . Thus, this Panel analysed the factors in Article  5.2 as part of its 
analysis of the various factors and elements of the evaluation of the likeliho od of entry, 
establishment and spread of ASBVd and of the associated potential biological and economic 
consequences in Reports ARP -002-2017 and ARP -006-2016.  
7.1611.   On the basis of this analysis of the various factors and elements of Costa Rica's risk 
assessment,  the Panel found some flaws with regard to the scientific basis for Reports ARP -002-
2017 and ARP -006-2016, including the existence of assertions that do not find support in the 
 
2647 Panel  Report , US – Continued Suspension , para. 7.480.  
2648 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/cuenta . 
2649 Panel  Report , Russia – Pigs (EU) , paras.  7.760 –7.767.  
2650 Panel  Report , Russia – Pigs (EU) , para. 7.763 (citing Panel  Report s, US – Animals , para. 7.401, in 
turn citing Appellate Body Report, Korea – Various Measures on Beef , para. 111; and Panel  Report s, US – 
COOL , para.  7.776).  
2651 Panel  Report , Japan – Apples , para. 8.230.  
2652 Panel  Report , Australia – Apples , para. 7.211 (citing Appellate Body Reports, US/Canada – 
Continued Suspension , para. 527).  
2653 Panel  Report , US – Poultry (China) , para. 7.171.  
2654 Mexico's first written submission, para. 432.  
2655 Mexico's first written submission, para. 439.  
2656 Costa Rica's first written submission, p. 67.  
2657 Costa Rica's first written submission, para. 5.180.  WT/DS524/R  
- 369 - 
  scientific evidence; the existence of assertions that refer to a source, but th at source does not 
support those assertions, or does so only partially; the failure to consider information relevant to 
the risk assessment contained in the scientific evidence cited; and the failure to explain the quality 
of the evidence. The Panel consid ers that these flaws are sufficient to find that Costa Rica failed to 
comply with its obligation under Article  5.2 to take into account available scientific evidence in the 
assessment of risks.  
7.1612.   With respect to relevant inspection, sampling and testing meth ods, Mexico  argues that, in 
its risk assessment, Costa Rica did not consider relevant inspection, sampling and testing methods 
that demonstrate the alleged absence of ASBVd in its territory. For Mexico, the sampling surveys 
conducted by Costa Rica to deter mine the absence of ASBVd lack the proper application of scientific 
methodology, and Costa Rica failed to consider relevant inspection, sampling and testing methods 
that would have allowed it to obtain objective and reliable results.2658 
7.1613.   As noted above, Costa Rica  submits that Mexico has failed to establish that its measures 
are inconsistent with Article  5.2 of the SPS  Agreement .2659 Costa Rica asserts that Mexico does not 
present any new arguments in relation to this Article.2660 
7.1614.   Regarding inspection, sampling and testing methods, Costa Rica contends that it observed 
that, although Mexico carries out post -harvest visual inspections and discards fruit with symptoms 
of ASBVd, this does not solve the problem of asymptomatic fruit, since not all fruit infec ted with 
ASBVd displays symptoms2661, meaning that the only way to know for certain whether a fruit is 
infected is through laboratory testing, preferably using the RT -PCR technique.2662 Costa Rica states 
that it found, therefore, that there are no crop treatme nts or post -harvest inspections that could 
prove effective in Mexico against the risk posed by symptomless infected fruit.2663 
7.1615.   In the Panel 's view, the "relevant inspection, sampling and testing methods" referred to in 
Article  5.2 include methods used in con nection with consignments, which may affect the risk being 
evaluated and may therefore be relevant to the likelihood of entry, establishment or spread of a 
pest. The Panel does not consider that Article  5.2 concerns sampling and diagnostic methods related 
to the determination of pest status in an area. Mexico has not explained why sampling and diagnostic 
methods related to the determination of pest status in an area would be covered by this factor in 
Article  5.2 of the SPS  Agreement .2664 
7.1616.   Moreover, the Panel a ddressed the issue of inspection, sampling and testing methods in 
section  7.4.5.3.4.1  above, in its examination of the elements related to pest management 
procedures in Costa Rica's Reports ARP -002-2017 and ARP -006-2016.  
7.1617.   Regarding the prevalence of specific diseases or pests , Mexico  submits that Costa Rica did 
not consider the prevalence of ASBVd in its risk assessment. Mexico asserts that, although Costa 
Rica should h ave analysed the extent of the presence of ASBVd and its disease in a particular area 
or at a particular point in time2665, Costa Rica does not use as a basis scientific and representative 
evidence or other valid evidence confirming the specific area within Mexico's territory in which ASBVd 
and its disease are present.2666 Mexico states that it may be concluded that the prevalence of ASBVd 
in Mexico is low, and the lack of an official survey to ascertain the places where ASBVd is found 
 
2658 Mexico's first written submission, para. 453 (citing LaNG IF, Avocado Sunblotch Viroid , (Exhibit  MEX-
53)); second written submission, paras.  192 and 198.  
2659 Costa Rica's first written submission, p. 67.  
2660 Costa Rica's first written submission, para. 5.173.  
2661 Costa Rica's second written submission, para. 3.34 (citi ng Mohamed and Thomas (1980), 
(Exhibit  CRI-125); Desjardins (1987), (Exhibit CRI -101); and Schnell et al. (2001), (Exhibit CRI -131)). 
2662 Costa Rica's second written submission, para. 3.34 (citing Schnell et al. (1997), (Exhibit MEX -68)). 
2663 Costa Rica's second written submission, para. 3.34.  
2664 The Panel notes that the prevalence of a pest in an area is a factor to be taken into account in t he 
assessment of risks, as indicated in Article 5.2 through the reference to the prevalence of specific diseases or 
pests, and in Article 6.1 when it establishes that, in assessing the sanitary or phytosanitary characteristics of a 
region, Members shall ta ke into account, inter alia , the level of prevalence of specific diseases or pests.  
2665 Mexico's first written submission, paras.  454-455. 
2666 Mexico's first written submission,  para. 456. WT/DS524/R  
- 370 - 
  reflects the fact that th e disease has not posed a phytosanitary problem and is not economically 
significant.2667 
7.1618.   Mexico adds that Costa Rica should have considered, objectively, not only the prevalence 
of ASBVd in its territory but also, separately, that of its disease, and that Mexico presented conclusive 
evidence demonstrating that ASBVd and its disease have been present in Costa Rica.2668 
7.1619.   Costa Rica  submits that Mexico has failed to establish that its measures are inconsistent 
with Article  5.2 of the SPS  Agreement .2669 Costa Rica asserts that Mexico does not present any new 
arguments in relation to this Article.2670 
7.1620.   Costa Rica states that Mexico is taking advantage of the opportunity to advance, once more, 
many of the arguments that it already put forward under Article  5.1. Costa Rica asserts that Mexico 
reiterates that Costa Rica did not correctly determine its status as free of ASBVd, having already 
presented this argument in relation to the likelihood of entry of ASBVd, and that it again alleges that 
Costa Rica did not consider the prevalence of ASBVd in Mexico, having already raised this point when 
addressing the pest's association with the pathway at origin.2671 
7.1621.   The Panel  addressed Mexico's arguments regarding the prevalence of ASBVd in Mexico in 
section 7.4.5.3.4.1  above. The Panel noted that Report ARP -002-2017 refers to technical and 
scientific sources that contain relevant information on the presence of ASBVd in Mexico, but that the 
report fails to explain how the assertion in Vallejo Pérez et al. (2017) that the prevalence of ASBVd 
in Michoacán stood at 14% was used, and what weight was attached to it.  
7.1622.   With respect to Mexico's argument concerning the prevalence of ASBVd in the te rritory of 
Costa Rica, the Panel notes that Mexico's argument is based on its assertion that ASBVd is present 
in Costa Rica. The Panel refers to its finding in paragraph 7.310  above that Mexico has failed to 
demonstrate, as a matter of fact, that ASBVd is present in Costa Rica . 
7.1623.   Regarding quarantine treatments , Mexico  maintains that Costa Rica failed to take them 
into account in its risk assessment, since the PRA manual does not establish a general standard for 
evaluating this factor in PRAs.2672 Mexico states  that it establishes only phytosanitary requirements 
for the importation of avocado plants for sowing or planting from the United  States , which requires 
a certificate indicating that the product is from Ventura County, California, and specifying that it is  
ASBVd -free.2673 
7.1624.   Costa Rica  submits that Mexico has failed to establish that its measures are inconsistent 
with Article  5.2 of the SPS  Agreement .2674 Costa Rica asserts that Mexico does not present any new 
arguments in relation to this Article.2675 
7.1625.   Costa Rica states that Mexico is taking advantage of the opportunity to advance, once more, 
many of the arguments that it already put forward under Article  5.1. Costa Rica asserts that Mexico 
reiterates that other quarantine treatments were not taken into accoun t, having already questioned 
the consideration of ASBVd as a quarantine pest by other countries in the context of the identification 
of the pest and its potential economic and biological consequences.2676 
7.1626.   The Panel  notes that Mexico maintains that the manual  does not establish a general 
standard for evaluating quarantine treatments in PRAs2677, but does not explain what standard 
 
2667 Mexico's first written submission,  para. 462. 
2668 Mexico's first writte n submission, para. 461.  
2669 Costa Rica's first written submission, p. 67.  
2670 Costa Rica's first written submission, para. 5.173.  
2671 Costa Rica's first written submission, para. 5.181.  
2672 Mexico's first written submission, paras.  463-464. 
2673 Mexico's first writt en submission,  para. 465 ( citing  Servicio Nacional de Sanidad, Inocuidad y 
Calidad Agroalimentaria (SENASICA), Requisitos fitosanitarios para la importación de los EE.UU. , publicado 
en 2013 (SENASICA, Phytosanitary requirements for importation from the US, published in 2013), 
(Exhibit  MEX-139)). 
2674 Costa Rica's first written submission, p. 67.  
2675 Costa Rica's first written submission, para. 5.173.  
2676 Costa Rica's first written submission, para. 5 .181. 
2677 Mexico's first written submission, paras.  463-464. WT/DS524/R  
- 371 - 
  should have been established or what treatment should have been considered with respect to ASBVd 
in Costa Rica's risk assessment. Mexi co also states that it establishes phytosanitary requirements 
only for the importation of avocado plants for sowing or planting from the United  States2678, but 
does not explain the relevance to this factor of the way in which Mexico regulates ASBVd.  
7.1627.   The Pane l observes that Mexico has identified other specific relevant factors  that it argues 
Costa Rica should have considered in its risk assessment in order to comply with Article  5.2. The 
Panel will now address these factors.  
7.1628.   Mexico  submits that Costa Rica fail ed to take into account the following other relevant 
factors in its risk assessment: that, even though the viroid is present in Mexico, it has not had any 
impact on the industry; that Mexico has exported avocados to Costa Rica for more than 22 years; 
that Costa Rica has not detected ASBVd in consignments from Mexico; the diversion from intended 
use of seeds from imported avocados for consumption; and the distinction between the ASBVd 
pathogen and sunblotch disease.  
7.1629.   Costa Rica , for its part , submits that Mex ico has failed to establish that its measures are 
inconsistent with Article  5.2 of the SPS  Agreement .2679 Costa Rica states that Mexico is taking 
advantage of the opportunity to advance, once more, many of the arguments that it already put 
forward under Arti cle 5.1, including that ASBVd has not devastated the industry in Mexico, the 
historical trade between Mexico and Costa Rica, that ASBVd has not been detected in consignments 
from Mexico, the diversion from intended use of seeds, and that Costa Rica did not  distinguish 
between ASBVd and sunblotch disease.2680 
7.1630.   With respect to what Mexico considers to be other relevant factors, the Panel  has already 
addressed all the issues referred to by Mexico. The Panel conducted a detailed analysis of the 
arguments of the pa rties concerning diversion from intended use in Reports ARP -002-2017 and ARP -
006-2016 in section 7.4.5.3.3.4   above, in which it identified the lack of sufficient scientific evidence 
and estimates of the scale on which such diversion occurs in Costa Rica, and in section 7.4.5.3.6  on 
the matter of uncertainty in the reports.  
7.1631.   Section 7.4.5.5  above on whether Costa Rica's risk assessment is appropriate to the 
circumstances addresses Mexico 's arguments concerning its  position as the world's leading exporter 
of fresh avocados for consumption and concerning the more than 20 years of trade between Mexico 
and Costa Rica. Regarding these issues, Mexico asserts that, even though the viroid is pres ent in 
Mexico, it has not had any impact on the industry, that Mexico has exported avocados to Costa Rica 
for more than 22 years, and that Costa Rica has not detected ASBVd in consignments from Mexico. 
Costa Rica, for its part, submits that it is not true that it has imported avocado fruit from Mexico for 
more than 20 years when ASBVd was present in Mexico. The Panel has already addressed this in 
paragraphs 7.1521 through 7.1556  above.  
7.1632.   Mexico's argument concerning the need to distinguish between the ASBVd p athogen and 
sunblotch disease in the risk assessment was already addressed in section 7.4.5.2  above.  
7.1633.   On the basis of the foregoing, the Panel concludes that, in its risk assessment, Costa Rica 
did not take into account the available scientific evidence or the prevalence of specific diseases or 
pests. The Panel therefore concludes that Costa Rica has acted inconsistently  with Article  5.2 of the 
SPS Agreement  by failing to take into account the factors under that Article in its assessment of 
risks. 
7.4.5.8   Whether the factors listed in Article  5.3 of the SPS  Agreement  were taken into 
account in the assessment of the risk in question  
7.1634.   Mexico  submits that, in assessing the risk to plant life or health, Costa Rica did not take 
into account all the relevant economic factors mentioned in Article  5.3 of the SPS  Agreement .2681 
 
2678 Mexico's first written submission, para. 465 (citing SENASICA, Phytosanitary requirements for 
importation from the US, published in 2013, (Exhibit MEX -139)). 
2679 Costa Rica's first written submissi on, p. 67.  
2680 Costa Rica's first written submission, para. 5.181.  
2681 Mexico's first written submission, para. 498.  WT/DS524/R  
- 372 - 
  7.1635.   Mexico states that, while this obligation does not imply that the consideration will require 
a particular course of action from the Member imposing an SPS measure, there can be no 
consideration without addressing the factors in a way that indicates their an alysis beyond merely 
listing them, since there must be at least one reasoned explanation.2682 
7.1636.   Mexico asserts that Costa Rica failed to consider relevant factors such as the costs of control 
or eradication and the relative cost -effectiveness of alternative ap proaches in its risk assessment. 
As a result, its measures are inconsistent with Article  5.3 of the SPS  Agreement  and therefore it did 
not conduct a risk assessment in accordance with Articles 5.1 and 5.2 of the Agreement.2683 
7.1637.   Costa Rica  submits that Mexico has failed to establish that Costa Rica's measures are 
inconsistent with Article  5.3 of the SPS  Agreement2684, and that Mexico does not present any new 
arguments under Article  5.3 with respect to the risk assessment.2685 
7.1638.   Costa Rica asserts that Article  5.3 of the SPS  Agreement  reflects elements of ISPM No.  11 
related to the content of a risk assessment in the phytosanitary context, such as analysis of 
commercial consequences or costs of control measures for the importing Member.2686 For Costa Rica, 
it is therefor e to be expected that any risk assessment that takes into account risk assessment 
techniques developed by the relevant international organizations – in this case, ISPM No.  11 – in 
accordance with Article  5.1 of the SPS  Agreement , will consider the factors listed in Article  5.3 of 
the SPS  Agreement .2687 
7.1639.   Costa Rica adds that the obligation to "take into account" under Article  5.3 does not imply 
a particular course of action from the Member imposing an SPS measure and does not require respect 
for each and every aspect of the instrument that is taken into account. It is therefore an obligation 
to "take into consideration" but does not imply any particular result in the risk assessment.2688 
7.1640.   Costa Rica states that, when one speaks of "potential" economic damage,  the costs of 
control or eradication of a pest that does not yet exist, and the cost -effectiveness of "potential" risk 
mitigation measures, one is speaking of hypothetical or potential scenarios that could occur if the 
pest existed in the national territor y and produced effects, and that this intellectual exercise may be 
overly complex.2689 Costa Rica adds that, despite the potential complexity of this assessment, it did 
its utmost to consider the possible adverse effects of the establishment and spread of th e viroid and 
the possible costs of eradication in the event of its spread, and that the relative cost -effectiveness 
of alternative approaches to limiting risks was considered and discussed at length.2690 
7.1641.   Costa Rica asserts that Mexico is using Article  5.3 of  the SPS  Agreement  to repeat 
arguments that it already put forward under Article  5.1 of the SPS  Agreement , which is a conceptual 
error, since compliance with Articles 5.2 and 5.3 of the SPS  Agreement  should be analysed when 
considering the risk assessment under Article  5.1 of the SPS  Agreement . Costa Rica adds that all 
the arguments presented by Mexico were already addressed in Mexico's claim under Article  5.1 of 
the SPS  Agreement .2691 
7.1642.   Costa Rica maintains that, for the same reasons given under Article  5.1 of  the 
SPS Agreement , Mexico has not substantiated its claim that Costa Rica has failed to conduct a proper 
risk assessment that takes into account risk assessment techniques developed by the relevant 
international organizations. The Panel should therefore r eject Mexico's claim under Article  5.3 of the 
SPS Agreement .2692 
 
2682 Mexico's first written submission, para. 480.  
2683 Mexico's first written submission, para. 507; comments on Costa Rica's response to Panel question 
No. 170, para. 2.  
2684 Costa Rica's first written submission, p. 70; second written submission, para. 3.58.  
2685 Costa Rica's first written submission, para. 5.184 . 
2686 Costa Rica's first written submission, para. 5.188; second written submission, para. 3.25.  
2687 Costa Rica's first written submission, para. 5.188.  
2688 Costa Rica's comments on Mexico's response to Panel question No. 170, para. 102 (citing 
Panel  Report s, Russia – Pigs (EU) , para. 7.767; and Japan – Apples , para. 7.761).  
2689 Costa Rica's response to Panel question No. 56, para. 1.  
2690 Costa Rica's response to Panel question No. 56, paras.  2-3. 
2691 Costa Rica's first written submission, paras.  5.189 -5.190.  
2692 Costa R ica's first written submission, para. 5.192; second written submission, para. 3.58.  WT/DS524/R  
- 373 - 
  7.1643.   The European  Union  states, as a third party, that Article  5.3 requires a Member to give 
consideration to the relevant economic factors listed therein, which does not require a particular 
course  of action.2693 The European  Union  considers that, while no particular result is required, a 
Member is obliged to take into consideration the factors listed in Article  5.3 of the SPS  Agreement  
and this consideration should be found in its risk assessment and  risk management, even if it does 
not lead to a particular outcome.2694 
7.1644.   Canada 's opinion, as a third party, is that WTO Members must consider, at a minimum, 
the relevant economic factors set out in Article  5.3. Canada asserts that those factors represent a 
closed list, but that this does not prevent a WTO Member from considering other economic factors 
in its assessment of risks, and adds that the obligation to "take into account" does not require a 
particular result. According to Canada, to estab lish a violation of Article  5.3, there must be a finding 
that the respondent has failed to take into account at least one of the relevant economic factors 
listed in the provision. 2695 
7.1645.   El Salvador  states, as a third party, that, in assessing the risk to animal or plant life or 
health and determining the measure to be applied for achieving the ALOP, Members are required to 
take into account the relevant economic factors listed in Article  5.3, and no t other economic factors. 
El Salvador adds that this obligation does not imply, however, that consideration of the relevant 
economic factors requires a particular course of action from the Member imposing an SPS measure, 
since the provision requires the Me mber only to analyse these economic factors when adopting an 
SPS measure, not to perform or carry out an additional action.2696 
7.1646.   The Panel  recalls that Article  5.3 requires that, in assessing the risk to animal or plant life 
or health and determining the meas ure to be applied for achieving the ALOP from such risk, Members 
should take into account as relevant economic factors: (i)  the potential damage in terms of loss of 
production or sales in the event of the entry, establishment or spread of a pest or disease ; (ii) the 
costs of control or eradication in the territory of the importing Member; and (iii)  the relative cost -
effectiveness of alternative approaches to limiting risks.  
7.1647.   Regarding the obligation to "take into account", as mentioned above, the ordinary me aning 
of the phrase, according to the Diccionario de la lengua española  of the Real Academia Española, is 
"tener presente, considerar " ("to keep in mind, consider ").2697 
7.1648.   The panel in Russia – Pigs (EU)  reviewed other panels' interpretations of expressions si milar 
to "shall take into account" in Articles 5.1, 5.2, 5.4, and 10.1 of the SPS  Agreement  and 12.3 of the 
TBT Agreement , and expressed its agreement with these interpretations.2698 The panel referred to, 
among other matters, the panel in US – Animals , whic h noted that "to take into account" means "to 
take into consideration, notice" and does not require any particular result of that consideration.2699 
7.1649.   The panel in Russia – Pigs (EU)  considered that a Member has the obligation to give 
consideration to the rele vant economic factors listed in that provision, and not to other economic 
factors, but that this obligation does not imply that consideration of the relevant economic factors 
will require a particular course of action from the Member imposing an SPS measur e.2700 
7.1650.   This Panel is of the view that taking into account  the relevant economic factors listed in 
Article  5.3 of the SPS  Agreement  is an obligation to take into consideration those factors, even if the 
provision does not require any particular result of that consideration, in the sense of requiring a 
 
2693 European  Union 's response to Panel question No. 7, para. 27 (citing Panel  Report , Russia – Pigs 
(EU), para. 7.767).  
2694 European  Union 's response to Panel question No. 8, p ara. 32 (citing Panel  Report , US – Animals , 
paras.  7.401 -7.402).  
2695 Canada's response to Panel questions No s. 8(a), (b) and (c), paras.  23-25; opening statement at 
the first meeting of the Panel, para. 20. 
2696 El Salvador's response to Panel questions No s. 8(a) and (b).  
2697 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/cuenta . 
2698 Panel  Report , Russia – Pigs (EU) , paras.  7.760 –7.767.  
2699 Panel  Report , Russia – Pigs (EU) , para. 7.763 (citing Panel  Report s, US – Animals , para. 7.401, in 
turn citing Appellate Body Report, Korea – Various Measures on Beef , para. 111; and Panel  Report s, 
US – COOL , para. 7.776).  
2700 Panel  Report , Russia – Pigs (EU) , para. 7.767.  WT/DS524/R  
- 374 - 
  particular course of action. The Panel concurs with the European  Union  that, while n o particular 
result is required, a Member is obliged to take into consideration the factors listed in Article  5.3, and 
this consideration should be found in its risk assessment and risk management, even if it does not 
lead to a particular outcome.2701 
7.1651.   As not ed by the panel in Russia – Pigs (EU)  in interpreting Article  5.3 for the first time, this 
provision refers to the obligation of taking into account the relevant economic factors listed therein 
in two different situations: (i)  when assessing the risk to an imal or plant life and health; and 
(ii) when determining the measure to be applied to achieve the ALOP.2702 Mexico claims that Costa  
Rica violated Article  5.3 of the SPS  Agreement  by failing to take into account the factors in Article  5.3 
in both situations.2703 
7.1652.   In this section, the Panel will address Mexico's arguments concerning whether Costa Rica 
took into account the relevant economic factors listed in Article  5.3 in the first situation, i.e. when 
assessing the risk in question, and later in its analysis, i t will address Mexico's arguments with 
respect to the second situation, i.e. when determining the measure to be applied to achieve the 
ALOP.  
7.1653.   The panel in Russia – Pigs (EU)  considered that the first situation is informed by the 
obligation to base SPS measu res on scientific principles (Article  2.2), through an assessment of risk 
appropriate to the circumstances (Articles 5.1 and 5.2), and was of the opinion that the obligation 
to take into account relevant economic factors when carrying out an assessment is contingent upon 
the obligation to base an SPS measure on a risk assessment pursuant to Articles 5.1 and 5.2 of the 
SPS Agreement .2704 In addition, the panel in US – Animals  considered that, when determining 
whether a risk assessment is "appropriate to the ci rcumstances" in accordance with Article  5.1, the 
question of whether the elements set forth in Articles 5.2 and 5.3 were taken into account is 
relevant.2705 
7.1654.   As noted, the list of relevant economic factors in Article  5.3 must be taken into account in 
the asse ssment of risks, and the Panel therefore considers that a panel may examine these economic 
factors when analysing claims related to the assessment of risks under Article  5.1 of the 
SPS Agreement . 
7.1655.   In particular, the Panel recalls that it has reviewed the as sessment of the potential economic 
consequences associated with the entry, establishment or spread of pests or diseases, which is one 
of the components of the risk assessment in this dispute. The Panel considers that the economic 
factors consisting of the potential damage in terms of loss of production or sales in the event of the 
entry, establishment or spread of a pest or disease and the costs of control or eradication in the 
territory of the importing Member are covered by this assessment. Accordingly, t he Panel will refer 
to this review in its analysis of Mexico's arguments with respect to the economic factors, and will 
address Mexico's arguments that have not been addressed in its previous analysis.  
7.1656.   In light of the foregoing, the Panel will now consider  whether Costa Rica took into account, 
in the sense of taking into consideration, the relevant economic factors listed in Article  5.3 of the 
SPS Agreement  in assessing the risk to plant life or health in Reports ARP -002-2017 and 
ARP-006-2016.  
7.1657.   Regarding the potential damage in terms of loss of production or sales in the event of the 
entry, establishment or spread of a pest or disease , Mexico  submits that the  sections of the PRAs 
on the "Effects of the pest" reflect the fact that no analysis has been carried out of the potential 
returns or profit that may be forgone as a result of the entry, establishment or spread of ASBVd in 
the territory of Costa Rica throu gh fresh avocados imported for consumption.2706 
 
2701 European  Union 's response to Panel question No. 8, para. 32 (ci ting Panel  Report , US – Animals , 
paras.  7.401 -7.402).  
2702 Panel  Report , Russia – Pigs (EU) , para. 7.769.  
2703 Mexico's first written submission, p. 123.  
2704 Panel  Report , Russia – Pigs (EU) , para. 7.770.  
2705 Panel  Report , US – Animals , para. 7.323.  
2706 Mexico's first  written submission, paras.  482–485; second written submission, para. 201.  WT/DS524/R  
- 375 - 
  7.1658.   For Mexico, there has also been no calculation of the potential losses that could result from 
the entry, establishment or spread of ASBVd in the territory of Costa Rica through the fresh avocados 
imported for c onsumption involving at least the following factors: (i)  total avocado production in 
Costa Rica; (ii)  the average sale price of avocado by intermediaries to the public in Costa Rica; 
(iii) the potential decrease in production; (iv)  the potential decrease i n yield per hectare; (v)  the 
potential decrease in the sales prices of intermediaries and the retail price; (vi) the potential 
percentage reduction in the actual yield of avocado trees because of ASBVd; (vii) variables that 
consider different scenarios suc h as the spread of the disease in the largest production area in 
Costa  Rica, in backyards; and (viii) the potential impact on exports.2707 
7.1659.   Mexico adds that the 30% decrease claimed by Costa Rica is incorrect and cannot be 
considered a widespread loss in ASBV d-infected avocado orchards. Mexico states that the study from 
which the reference is obtained focused only on two orchards in the state of Michoacán (Uruapan 
and Tingambato). Mexico asserts that, in the Uruapan orchard, a comparison was drawn between 
the total yield of 12 Hass trees (four healthy, four symptomatic and four asymptomatic), that, in 
November 2011, there was a 15% reduction in the yield of asymptomatic trees compared to healthy 
ones, and that, in November 2012, there was a 30% reduction. For M exico, there is no scientific 
basis to assert that, in countries where ASBVd and its disease are present, reported average crop 
output losses have been 30%, since the reduction in the yield of a symptomless Hass tree may be 
smaller than the average reporte d by Costa Rica, and Costa Rica has not demonstrated that a 
reduction of more than 30% in the yield of a symptomless tree has been reported anywhere in the 
world.2708 Mexico adds that Costa Rica did not provide specific reasoning as to why it is valid to 
extrapolate the information supplied with respect to crop losses.2709 
7.1660.   Mexico also contends that in no section of Datasheet ARP -001-2014 is there a specific 
reference to a study or document reporting that 80% of fruits are rejected at the packing stage, as 
alleged by Costa Rica, which means that there is no scientific basis for such an assertion.2710 
7.1661.   Mexico adds that two key factors that should have been taken into considera tion in the 
assessment are: (i)  the fact that the presence of ASBVd in Mexico has not seriously harmed avocado 
production, such that Mexico remains the world's leading exporter, with a yield per hectare that is 
higher than the world average; (ii)  if it is accepted that Costa Rica is ASBVd -free, the exportation of 
Mexican avocados to Costa Rica has not, for at least 20 years, caused ASBVd to spread in the 
territory of the country, nor has it resulted in a decline in Costa Rican avocado production.2711 
7.1662.   Mexico a lso contends that Costa Rica has never requested evidence from Mexico concerning 
the aforementioned factors.2712 
7.1663.   Regarding the costs of control or eradication in the territory of the importing Member , 
Mexico  states that, in its PRA, Costa Rica lists various factors in its assessment of the potential 
consequences but does not explain how it considered the costs of control or eradication beyond 
including them as a bullet point, and there is no indication in the methodology used of the qualitative 
impact that th is factor could have on the effects.2713 
7.1664.   Mexico submits that, even though Costa Rica mentioned the possibility of there being costs 
of control and eradication or containment, it did not carry out a comprehensive study on these 
factors. Mexico states that Cos ta Rica failed to take into account the precise costs of control or 
eradication of the pest, which could have served as a basis for calculating economic losses in the 
event of the entry, establishment or spread of ASBVd in the territory of Costa Rica throu gh fresh 
avocados imported for consumption. For Mexico, this exercise should have been undertaken, at least 
hypothetically, and should have mentioned, inter alia : (i) the direct and indirect costs of carrying 
out an eradication programme; (ii)  the budget for the materials used in the eradication; (iii)  the 
hours of work required; (iv)  the impact on the budget for controlling and eradicating ASBVd; and 
 
2707 Mexico's first written submission, para. 485; second written submission, para. 201.  
2708 Mexico's first written submission, para. 486.  
2709 Mexico's second written submission, para. 202.  
2710 Mexico's first written submission, para. 487. 
2711 Mexico's first written submission,  paras.  488-489. 
2712 Mexico's first written submission,  para. 490.  
2713 Mexico's first written submission,  para. 481. WT/DS524/R  
- 376 - 
  (v) a comparison with the costs incurred in Mexico in order to control ASBVd.2714 Mexico adds that 
Costa Rica failed to evaluate the possible methods of eradicating the pest or compare the situations 
of other countries where ASBVd is present.2715 
7.1665.   Costa Rica  submits that Mexico has not established that Costa Rica's measures are 
inconsistent with Article  5.3 of the SPS  Agreement2716, and that Mexico does not present any new 
arguments under Article  5.3 with respect to the risk assessment.2717 
7.1666.   As noted, Costa Rica asserts that Article  5.3 of the SPS  Agreement  reflects elements of 
ISPM No.  11 related to the content o f a risk assessment in the phytosanitary context, such as 
analysis of commercial consequences or costs of control measures for the importing Member.2718 For 
Costa Rica, it is therefore to be expected that any risk assessment that takes into account risk 
assessment techniques developed by the relevant international organizations – in this case, ISPM 
No. 11 – in accordance with Article  5.1 of the SPS  Agreement , will consider the factors listed in 
Article  5.3 of the SPS  Agreement .2719 
7.1667.   Costa Rica adds that all the arguments presented by Mexico were already addressed in 
Mexico's claim under Article  5.1 of the SPS  Agreement .2720 Costa Rica contends that it correctly 
evaluated the potential economic and biological consequences associated with the entry, 
establishment and spread of ASBVd and that Mexico has failed to demonstrate otherwise.2721 
Costa  Rica states that it took into acco unt the potential damage in terms of loss of production or 
sales and the costs of control or eradication of the pest in its territory, both of which are factors 
listed in Article  5.3 of the SPS  Agreement .2722 
7.1668.   As noted above, the Panel  considers that the econ omic factors consisting of the potential 
damage in terms of loss of production or sales in the event of the entry, establishment or spread of 
a pest or disease and the costs of control or eradication in the territory of the importing Member are 
covered by the evaluation of the potential economic consequences associated with the entry, 
establishment or spread of pests or diseases, which is one of the components of a risk assessment 
of the type relevant to this dispute. The Panel will therefore refer to its a nalysis of the evaluation of 
the potential biological and economic consequences in Reports ARP -002-2017 and ARP -006-2016.  
7.1669.   Both the potential damage in terms of loss of production or sales in the event of the entry, 
establishment or spread of a pest or dise ase and the costs of control or eradication in the territory 
of the importing Member are in the list of effects of the pest in Reports ARP -002-2017 and ARP -006-
2016. In this list, reference is made to, inter alia , crop losses, in yield and quality; effects  on export 
market access; changes to producer costs or input demands, including control costs; changes to 
domestic or foreign consumer demand for a product resulting from quality changes; and feasibility 
and cost of eradication or containment.2723 
7.1670.   As set out  in section 7.4.5.3.5  above, in Report ARP -002-2017, some figures are provided 
for economic losses per hectare per year and the reduction in yield, but the highest fi gures are given 
from ranges that appear in the sources cited, and an unsubstantiated assertion is made about the 
percentage of fruit rejected at the packing stage. This information is missing completely from Report 
ARP-006-2016. This is relevant to the ana lysis of the economic factor consisting of the potential 
damage in terms of loss of production or sales under Article  5.3. 
7.1671.   Regarding the costs of control and eradication, Reports ARP -002-2017 and ARP -006-2016 
mention, among the effects of the pest, changes  to producer costs or input demands, including 
 
2714 Mexico's first written submission, para. 493; second written submission, para. 201.  
2715 Mexico's second written submission, para. 202.  
2716 Costa Rica's first written submission, p. 70; second written submission, para. 3.58.  
2717 Costa Rica's first written submission, para . 5.184.  
2718 Costa Rica's first written submission, para. 5.188; second written submission, para. 3.25.  
2719 Costa Rica's first written submission, para. 5.188.  
2720 Costa Rica's first written submission, paras.  5.189 -5.190.  
2721 Costa Rica's first written submission , p. 60; second written submission, para. 3.48.  
2722 Costa Rica's first written submission, paras.  5.140 –5.143; second written submission, para. 3.51.  
2723 ARP-002-2017, (Exhibit MEX -84), pp. 40 -41; ARP -006-2016, (Exhibit MEX -85), p. 21.  WT/DS524/R  
- 377 - 
  control costs, and feasibility and cost of eradication or containment2724, but, as mentioned in section 
7.4.5.3.5  above, this reference is made without any explanation or substantiation.  
7.1672.   The Panel finds relevant the statement made by  the expert Robert Griffin that he does not 
consider the analysis of "pot ential" harm and "possible" risk mitigation methods to be an intellectual 
exercise or excessively complex. For Mr Griffin, it is a requirement of the SPS  Agreement  and the 
subject of detailed guidance in section 2.3 of ISPM No.  11, and, while it is possible to construct any 
level of complex analyses of impacts and the cost -effectiveness of mitigations, much simpler 
analyses are more common and useful.2725 
7.1673.   Mr Griffin also refers to the methodology used by Costa Rica to estimate the harm in terms 
of loss  of production or sales and the costs of control, and states that it is a simple list that gives 
equal weight to each item as they are summed to give an overall score that determines the category 
(high, medium, or low). For Mr Griffin, this methodology is transparent but overly simplistic, and, 
although it provides the structure to include these aspects into the PRA, there is no analysis beyond 
the bimodal response of yes/no.2726 
7.1674.   Considering Mr Griffin's comments and the flaws identified in the evaluation of the potential 
economic consequences, this Panel is of the view that it cannot be concluded that Costa Rica has 
taken into account, in the sense of taking into consideration, the potential damage in terms of loss 
of production or sales and the costs of cont rol or eradication in its territory in Reports ARP -002-2017 
and ARP -006-2016.  
7.1675.   For the Panel, the mere mention of effects related to the economic factors in a list, without 
the necessary substantiation or explanation, does not mean that these relevant econo mic factors 
have been taken into account by Costa Rica in its assessment of the risk of ASBVd. The Panel 
therefore concludes that Costa Rica failed to take into account the first two factors under Article  5.3 
of the SPS  Agreement  in its assessment of the r isk in question.  
7.1676.   Concerning the relative cost -effectiveness of alternative approaches to limiting risks , 
Mexico  contends that Costa Rica did not evaluate the cost -effectiveness of these alternative 
approaches to limiting risks because it took into account only one alternative to the three measures 
proposed in the PRA: the carrying out of inspections at entry points. Mexico asserts that this implies 
that, among other possibilities, Costa Rica ignored Mexico's proposal to certify consignments of 
symptomless f resh avocados for consumption and Chile's measure to prohibit the diversion from 
intended use of the seeds of avocados for consumption, without limiting the importation of 
avocados.2727 Mexico adds that no detailed cost -effectiveness analysis was conducted o f the reasons 
for selecting the measures that were determined to be applicable.2728 
7.1677.   Mexico argues that if Costa Rica had followed the process provided for in Article  5.3 of the 
SPS Agreement , it would have: (i) determined its ALOP, taking into consideration Article  5.4 of the 
SPS Agreement ; (ii) listed all the possible measures in its PRAs; (iii)  assessed and indicated the pros 
and cons of each one and carried out a qualitative analysis to justify maintaining the requirement 
for a phytosanitary certificate; ( iv) pointed out which measures would be onerous for Costa Rica to 
implement, for individuals, and the impact on avocado -exporting countries, including on Mexican 
avocado producers and importers; (v)  selected the measures considered appropriate to the 
circumstances in the territory of Costa Rica; and (vi) pointed out the reasons why the measures 
selected were preferable to the rest and, if appropriate, explained in detail why the requirement for 
a phytosanitary certificate is a mechanism that must be im posed on top of the measures related to 
diversion from intended use.2729 
 
2724 ARP-002-2017, (Exhibit MEX -84), pp. 40 -41; ARP -006-2016, (Exhibit MEX -85), p. 21.  
2725 Robert Griffin's response to Panel question No. 114(b) for the experts.  
2726 Robert Griffin's response to Panel question No. 114(a) for the experts.  
2727 Mexico's first written submission, para. 495.  
2728 Mexico's first written submission, para. 496.  
2729 Mexico's first written submission, para. 497.  WT/DS524/R  
- 378 - 
  7.1678.   Costa Rica  submits that Mexico has failed to establish that Costa Rica's measures are 
inconsistent with Article  5.3 of the SPS  Agreement2730, and that Mexico does not present any new 
arguments under Article  5.3 with respect to the risk assessment.2731 
7.1679.   As noted, Costa Rica asserts that Article  5.3 of the SPS  Agreement  reflects elements of 
ISPM No.  11 related to the content of a risk assessment in the phytosanitary context, such as 
analysis of  the commercial consequences or costs of control measures for the importing Member.2732 
For Costa Rica, it is therefore to be expected that any risk assessment that takes into account risk 
assessment techniques developed by the relevant international organiz ations – in this case, ISPM 
No. 11 – in accordance with Article  5.1 of the SPS  Agreement , will consider the factors listed in 
Article  5.3 of the SPS  Agreement .2733 
7.1680.   Costa Rica adds that all the arguments presented by Mexico were already addressed in 
Mexico's claim under Article  5.1 of the SPS  Agreement .2734 Costa Rica also maintains that it took 
into account the relative cost -effectiveness of alternative approaches to limiting risks.2735 
7.1681.   For the  analysis of Costa Rica's consideration of the relative cost -effective ness of alternative 
approaches to limiting risks , the Panel  finds relevant its  analysis of whether, in Costa Rica's risk 
assessment, the evaluation of the likelihood of entry, establishment and spread of ASBVd was carried 
out according to the sanitary or p hytosanitary measures which might be applied. Also relevant is the 
statement made by expert Robert Griffin to the effect that he sees no evaluation of the cost -
effectiveness of other possible measures.2736 
7.1682.   As noted in section 7.4.5.4  above, it is the Panel's view that, while Reports ARP -002-2017 
and ARP -006-2016 mention the inspection at entry points, they fail to mention or analyse other 
potential risk management measures. The reports set out only the recommendations on measures 
to be applied , without explaining which other measures could be applied. In other words, they do 
not identify or ponder the measures that could be applied.  
7.1683.   The rep orts indicate that inspections carried out at entry points would not be sufficient, 
given that ASBVd is asymptomatic in fruits.2737 Aside from this assertion about the effectiveness of 
inspections, which does not include a complete analysis of their cost -effectiveness, the Panel finds 
no other indication that Costa Rica took into account the relative cost -effectiveness of alternative 
approaches to limiting risks.  
7.1684.   In the view of the Panel, without identifying other measures which might be applied, it is 
imposs ible to analyse or consider the various measures that could mitigate the risk. In other words, 
the relative cost -effectiveness of these alternative approaches to limiting risks cannot be taken into 
account unless the approaches have been identified and exp lained.  
7.1685.   In view of the foregoing, the Panel is of the opinion that it cannot be concluded that, in its 
assessment of the risk of ASBVd, Costa Rica took into account, in the sense of taking into 
consideration, the relative cost -effectiveness of alternative approaches to limiting risks. The Panel 
therefore concludes that Costa Rica failed to take into account this relevant economic factor under 
Article  5.3 of the SPS  Agreement  in its assessment of the risk in question.  
7.1686.   Based on all the above, the Panel concludes that, in its risk assessment, Costa Rica did not 
take into account the potential damage in terms of loss of production or sales in the event of the 
entry, establishment or spread of ASBVd; the costs of control or eradication in the territory of 
Costa Rica; or the relative cost -effectiveness of alternative approaches to limiting risks. The Panel 
therefore concludes that Costa Rica has acted inconsistently with Article  5.3 of the SPS  Agreement  
 
2730 Costa Rica's first written submission, p. 70; second written submission, para. 3.58.  
2731 Costa Rica's first written submission, para. 5. 184. 
2732 Costa Rica's first written submission, para. 5.188; second written submission, para. 3.25.  
2733 Costa Rica's first written submission, para. 5.188.  
2734 Costa Rica's first written submission, paras.  5.189 -5.190.  
2735 Costa Rica's first written submission, pa ras. 5.147 –5.149; second written submission, para. 3.46.  
2736 Robert Griffin's response to Panel question No. 114(a) for the experts.  
2737 ARP-002-2017, (Exhibit M EX-84), p. 42; ARP-006-2016, (Exhibit MEX -85), p. 23.  WT/DS524/R  
- 379 - 
  because Costa Rica failed to take into account the relev ant economic factors listed in that Article in 
its assessment of the risk in question.  
7.4.5.9   Conclusion on the risk assessment in Reports ARP -002-2017 and ARP -006-2016  
7.1687.   The Panel recalls that it reached the following intermediate conclusions with respect to its 
analysis of Costa Rica's risk assessment contained in Reports ARP -002-2017 and ARP -006-2016:  
a. Costa Rica's assertion in Reports ARP -002-2017 and ARP -006-2016 that it determined that 
its territory is free of ASBVd, which forms part of the basis for its risk a ssessment, lacks 
sufficient  reliability , and, therefore , cannot be considered legitimately scientific. Moreover, 
the confirmation of the determination that ASBVd is absent in Costa Rica on the basis of 
sampling surveys conducted subsequent to Reports ARP -002-2017 and ARP -006-2016 
(the 2017 –2018 and 2019 surveys) also lacks sufficient reliability  to be considered 
legitimately scientific;  
b. Contrary to Mexico's argument, the risk assessment in Reports ARP -002-2017 and 
ARP-006-2016 identifies the pest or disease  (ASBVd) whose entry, establishment or 
spread Costa Rica wants to prevent within its territory, as well as the potential biological 
and economic consequences associated with the entry, establishment or spread of this 
pest or disease, and thus complies with  the first step suggested by the Appellate Body 
based on the definition of "risk assessment" in paragraph 4 of Annex A to the 
SPS Agreement ; 
c. The use of a fixed format , derived from Manual NR -ARP-PO-01_M -01, in Reports ARP -002-
2017 and ARP -006-2016 limits the flexibility of judgement in the analysis, which leads to 
the absence of  the risk assessor's reasoning; and removes the flexibility to address 
ASBVd -specific issues, which affects the appropriateness of the risk assessment to the 
circumstances;  
d. There is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the existence of diversion from the intended use of seeds from fresh fruit for consumption, 
and there are no estimates, even in q ualitative terms, of the scale on which this diversion 
occurs in Costa Rica, which prevented the risk analyst from conducting either a qualitative 
or quantitative assessment of the probability of entry, establishment or spread of ASBVd 
in Costa Rica that would give due consideration to this diversion from intended use;  
e. There is insufficient scientific evidence in Reports ARP -002-2017 and ARP -006-2016 on 
the occurrence of spontaneous germination, and there are no estimates, even in 
qualitative terms, of the scale on which this spontaneous germination occurs in Costa Rica, 
which prevented the risk analyst from conducting either a qualitative or quantitative 
assessment of the probability of entry, establishment or spread of ASBVd in Costa Rica 
that would give due consideration to this spontaneous germination;  
f. In reaching a generalized conclusion on spontaneous germination, without considering in 
the assessment of the elements and factors of the probability analysis the differences in 
the edaphoclimatic condition s in the various regions of the country and the different 
situations in which a seed could be discarded (for example, on a farm, in a garden or at a 
waste disposal site), Reports ARP -002-2017 and ARP -006-2016 overestimated the 
probability of spontaneous ge rmination occurring in the entire PRA area. There is also a 
failure to take into account the edaphoclimatic conditions conducive to the development 
of the avocado tree after germination, which affects the assessment of the availability of 
host plants, and thus the probability of spread of ASBVd;  
g. Assigning risk values, whether high, medium , or low, with their respective numerical 
values (3, 2, or 1), to the various factors and elements, on several occasions without the 
necessary scientific basis, without suf ficient reasoned explanations by the risk assessor, 
and without considering the multipli cative  relationship that exists between the conditions 
and events necessary for the entry of ASBVd, cannot be considered an objectively 
justifiable qualitative assessme nt of the likelihood of entry of ASBVd in Costa Rica's 
territory;  WT/DS524/R  
- 380 - 
  h. Assigning risk values, whether high, medium , or low, with their respective numerical 
values (3, 2, or 1), to the various factors, on several occasions without the necessary 
scientific basis,  without sufficient reasoned explanations by the risk assessor, without 
attaching sufficient weight to the rate of reproduction and spread of ASBVd, and without 
considering the multipli cative  relationship that exists between the conditions and events 
neces sary for the establishment of ASBVd, cannot be considered an objectively justifiable 
qualitative assessment of the likelihood of establishment of ASBVd in Costa Rica's 
territory;  
i. Assigning risk values, whether high, medium , or low, with their respective nu merical 
values (3, 2, or 1), to the various factors, on several occasions without the necessary 
scientific basis, without sufficient reasoned explanations by the risk assessor, and without 
attaching any weight to the rate of reproduction and spread of ASBV d, cannot be 
considered an objectively justifiable qualitative assessment of the likelihood of spread of 
ASBVd in Costa Rica's territory;  
j. Reports ARP -002-2017 and ARP -006-2016 refer to economic effects and biological 
consequences without explanation or jus tification, and there are statements about 
economic effects that refer to two sources and contain quantitative data, but these data 
are extrapolated to the case of Costa Rica with no explanation of how they are applicable 
to Costa Rica's circumstances. Thu s, there has been no evaluation of the associated 
potential biological and economic consequences, and this constitutes  a flaw in the risk 
assessment in Reports ARP -002-2017 and ARP -006-2016;  
k. While most of the scientific evidence in Reports ARP -002-2017 and  ARP-006-2016 comes 
from respected sources, can accordingly be seen as legitimate in itself, and includes 
evidence that may be considered relevant and sufficiently specific, the lack of analysis on 
the quality of the evidence constitutes a flaw in the risk  assessor's reasoning;  
l. The calculation of probabilities in Reports ARP -002-2017 and ARP -006-2016 was affected 
by the failure to identify and sufficiently document the situations of uncertainty and the 
uncertainties associated with the probabilities, and th is constitutes  a flaw in the risk 
assessment in Reports ARP -002-2017 and ARP -006-2016;  
m. In view of the conclusions in subparagraphs (c) to (l), Costa Rica's risk assessment 
contained in Reports ARP -002-2017 and ARP -006-2016 does not comply with the second 
step suggested by the Appellate Body based on the definition of "risk assessment" in 
paragraph 4 of Annex A to the SPS  Agreement ; 
n. While Reports ARP -002-2017 and ARP -006-2016 mention the inspection at entry points, 
they fail to mention or analyse other poten tial risk management measures. The reports 
include recommendations for three alternative measures, as well as general 
recommendations, without providing an explanation of why they were chosen or how they 
relate to the risk management options in Manual NR -ARP-PO-01_M -01, should such a 
relationship exist. The reports simply set out the recommendations on measures to be 
applied , without explaining which other measures could be applied. In other words, they 
do not identify or ponder  the measures that could be a pplied. As a result, Reports ARP -
002-2017 and ARP -006-2016 fail to evaluate the likelihood of entry, establishment or 
spread according to the SPS measures that might be applied, which means that the risk 
assessment does not comply with the third step sugge sted by the Appellate Body based 
on the definition of "risk assessment" in paragraph 4 of Annex A to the SPS  Agreement ; 
o. In the course of its analysis of the evaluation of the likelihood of entry, establishment or 
spread, the Panel found flaws with regard t o the consideration in Reports ARP -002-2017 
and ARP -006-2016 of the circumstances relevant to the risk assessment, including those 
relating to ASBVd, avocado fruit, Costa Rica's climatic conditions, its cultural practices, the 
status of ASBVd in Costa Rica n territory, the presence of ASBVd in Mexico, and the 
potential economic and biological consequences. Given the flaws found in relation to the 
consideration of these circumstances that are relevant to Costa Rica's risk assessment, 
the risk assessment in Re ports ARP -002-2017 and ARP -006-2016 cannot be considered a WT/DS524/R  
- 381 - 
  risk assessment appropriate to the circumstances  within the meaning of Article  5.1 of the 
SPS Agreement ; 
p. ISPM Nos. 2 and 11 are risk assessment techniques developed by one of the relevant 
internati onal organizations that Costa Rica should have taken into account when 
conducting its risk assessment, and Costa Rica did take into account ISPM Nos. 2 and 11 
when conducting its risk assessment. ISPM Nos. 4 and 6 are not risk assessment 
techniques for the  purposes of Article  5.1 of the SPS  Agreement ; 
q. In its risk assessment, Costa Rica did not take into account the available scientific evidence 
or the prevalence of specific diseases or pests. Therefore , Costa Rica has acted 
inconsistently with Article  5.2 o f the SPS  Agreement  by failing to take into account the 
factors under that Article in its assessment of risks;  
r. In its risk assessment, Costa Rica did not take into account the potential damage in terms 
of loss of production or sales in the event of the ent ry, establishment or spread of ASBVd; 
the costs of control or eradication in the territory of Costa Rica; or the relative cost -
effectiveness of alternative approaches to limiting risks. Therefore , Costa Rica has acted 
inconsistently with Article  5.3 of the  SPS Agreement  by failing to take into account the 
relevant economic factors listed in th at Article in its assessment of the risk in question.  
7.1688.   Given the flaws identified in this section, the Panel concludes that Costa Rica's risk 
assessment contained in Reports ARP -002-2017 and ARP -006-2016 is not an assessment, as 
appropriate to the circumstances, of the risks to plant life or health, within the meaning of 
paragraph  4 of Annex A to the SPS  Agreement  and Article  5.1 of the SPS  Agreement ; and that Costa 
Rica failed to take into account, in the risk assessment, the factors listed in Articles 5.2 and 5.3 of 
the SPS  Agreement.  
7.4.6   Whether Costa Rica's SPS measures are based  on the risk assessment  
7.1689.   Mexico  submits that Costa Rica's phytosanitary measures  are not based on a risk 
assessment, as appropriate to the circumstances, of the likelihood of entry, establishment and 
spread of ASBVd, because of the lack of specific scientific evidence and the lack of consistency 
between the analysis conducted by Costa  Rica and the measures applied.2738 
7.1690.   For Mexico, a comprehensive analysis of the PRA reveals that the assessment is inconsistent 
with Article  5.1, as it relies upon central arguments that lack a scientific basis and, given that it fails 
to take into account r elevant factors as regards the risk posed by the pathway of avocados imported 
for consumption in terms of the probability of entry, establishment and spread of ASBVd, it is not 
specific to this risk. Mexico adds that the assessment appears to assume that t here is a high risk 
associated with the pathway under analysis, without actually considering the risk arising from the 
diversion from intended use.2739 
7.1691.   Mexico submits a table that incorporates a number of assertions made by Costa Rica in the 
PRA, which Mexico considers to be central aspects of the assessment and which it considers lack a 
sufficient scientific basis. Mexico states that each of these assert ions reveals certain inconsistencies 
that collectively contribute to the fact that the assessment conducted is deficient and, as a result, 
not appropriate to the circumstances. Mexico notes that most of the arguments are based on a socio -
economic census pr epared by a consulting firm whose competence is questionable; and that neither 
Costa Rica's PRA nor the census present evidence indicating that this firm is a respected source that 
may be used as a basis in the risk analysis, since information is not provi ded on the firm's area of 
expertise, its experience in preparing this type of study, and the experience of the individuals that 
conducted this study in relation to the avocado industry.2740 
7.1692.   Mexico notes that its analysis reflected in the table reveals the fo llowing inconsistencies in 
the PRAs:  
 
2738 Mexico's second written submission, para. 187.  
2739 Mexico's first written submission, para. 416.  
2740 Mexico's first written submission, para. 417.  WT/DS524/R  
- 382 - 
  a. It cannot be deduced from CONSULSANTOS (2010) and CONSULSANTOS (2017) that 
producers use the seeds of Hass avocados imported for consumption from Mexico as 
rootstock in their own orchards, and there is no other scien tific evidence in the PRAs to 
support this assertion.  
b. Costa Rica fails to demonstrate with scientific evidence that its climatic conditions are 
conducive to the germination of the seeds imported for consumption from Mexico, and 
there is no evidence in C ONSULSANTOS (2010) and CONSULSANTOS (2017) proving 
this assertion.  
c. Costa Rica fails to demonstrate that its territory is a PFA, and Mexico has submitted 
information from which it can properly be inferred that ASBVd and its disease are 
present in Costa R ica. 
d. CONSULSANTOS (2010) and CONSULSANTOS (2017) do not support Costa Rica's 
conclusions that the use of seeds from fresh avocados imported from Mexico is a risk 
factor for the introduction of ASBVd and its disease, or the argument that it is specifical ly 
the seeds of fresh avocados imported for consumption from Mexico or any other country 
that are used as rootstock for planting avocado plantations.  
e. The scientific evidence does not establish the diversion from intended use arising from 
the consumption  of fresh food as a high -risk factor that can be considered as justification 
for imposing a maximum level of protection.  
f. The probability of ASBVd entering Costa Rica's territory through the importation of fresh 
avocados for consumption is negligible.  
g. Costa Rica does not explain in any section of the PRAs why the alleged findings support 
the measures.  
h. The PRAs conducted by Costa Rica are not supported by scientific evidence indicating 
that fresh avocados for consumption imported from Mexico are a pa thway for the entry 
of ASBVd and its disease, or substantiating its conclusions regarding the high probability 
of entry, establishment and spread of ASBVd and its disease through the pathway of 
fresh avocados imported for consumption from Mexico.  
i. From t he statements made by Costa Rica in the PRAs, it would appear that the 
phytosanitary authority considers that 100% of the fresh avocados for consumption 
imported from Mexico are infected with asymptomatic ASBVd.2741 
7.1693.   Mexico submits that, based on these incons istencies, the identifiable risk does not rationally 
support the restriction of imports of fresh avocados for consumption from Mexico.2742 For Mexico, 
there is a lack of specificity in the risk assessed by Costa Rica, because the central risk stems from 
the diversion from intended use of the avocados imported for consumption, yet this is not examined, 
and, on the contrary, it is assumed that there is a risk of ASBVd entering through the importation 
per se  of avocados and a per se  risk of diversion from intended use.2743 
7.1694.   Mexico states that, since there is no consistency between the risk analysis carried out by 
Costa Rica and the measures imposed, there is no objective relationship between the PRAs and the 
measures imposed by Costa Ri ca on the importation of fresh avocados for consumption.2744 
7.1695.   Mexico adds that the measures applied by Costa Rica are not based on the risk assessment, 
because:  
 
2741 Mexico's first written submission, para. 418 (referring to CONSULSANTOS (2010),  
(Exhibit MEX -119); and  CONSUL SANTOS (2017), (Exhibit MEX -118)). 
2742 Mexico's first written submission, para. 419.  
2743 Mexico's first written submission, paras.  421-423. 
2744 Mexico's first written submission, para. 424.  WT/DS524/R  
- 383 - 
  a. The analyst's reasoning mostly relies upon mere assertions and petitiones principii  that 
lack a sc ientific basis and rigour, so the conclusions reached are not objective and 
consistent with real -world experience;  
b. The facts and evidence submitted by Mexico differ from the facts put forward by Costa 
Rica in its risk assessment;  
c. The assessments lack scien tific support to demonstrate that the spontaneous germination 
of the discarded pits of imported avocados is a risk of entry, establishment and spread of 
ASBVd;  
d. The risk assessments are not justified by scientific evidence supporting a diversion from 
intend ed use of the pits of avocados imported for consumption; and  
e. The obvious lack of a scientific, technical and statistical basis became clear when Costa 
Rica provided ad hoc  evidence, prepared ex professo , to respond to Mexico's first written 
submission and to the Panel's questions.2745 
7.1696.   Costa Rica  submits that Mexico has failed to establish that Costa Rica's measures are not 
based on the risk assessment, since it has failed to demonstrate how the phytosanitary requirements 
imposed do not flow or result from Costa Rica's risk analysis, when this is clearly the case.2746 Costa 
Rica adds that it was incumbent upon Mexico to demonstrate that the measures eventually adopted 
have no rational relationship with the risk assessment, and it failed to do so.2747 
7.1697.   Costa Rica states that, taking into account the scie ntific evidence available for the 
evaluation of the likelihood of entry, establishment and spread of ASBVd and its potential biological 
and economic consequences, Costa Rica concluded that there was a cumulative risk score of 
39.67/51, and high -risk status  was granted, although technically the risk was situated between 
medium  and high. Costa Rica adds that, given that the risk was medium  or high, the adoption of 
measures was justified to ensure Costa Rica's phytosanitary status as ASBVd -free.2748 
7.1698.   Costa Rica a dds that this section is based on the hypothesis that the measure under analysis 
is the phytosanitary requirements imposed by Costa Rica, which are contained in Resolutions 
DSFE -002-2018 and DSFE -003-2018, but notes that Mexico identified the PRAs as the o nly 
instruments relevant to its claim under Article  5.1 of the SPS  Agreement , which does not impose an 
obligation that a risk assessment be based on a risk assessment.2749 
7.1699.   Costa Rica contends that Mexico has failed to demonstrate that the requirements lack a 
technical and scientific basis in the risk assessment and, therefore, that there is no rational 
relationship between the two. For Costa Rica, the scientific evidence and empirical studies confirm 
that there is a risk associated with avo cado fruit infected with asymptomatic ASBVd, and that it has 
been found that: (i)  the viroid is systemic in the tissues of the avocado plant, including the fruit and 
its seed2750; (ii) there are symptomless fruits, in which it is impossible to detect ASBVd t hrough 
inspection2751; (iii) the seeds of imported avocados remain viable during transport and storage2752; 
(iv) Costa Rica's climatic conditions are suitable for the natural germination of avocado seeds2753; 
(v) the practice of diversion from intended use incre ases the risk that seeds of unknown origin that 
 
2745 Mexico's second written submission, para. 184.  
2746 Costa Rica's second written submission, para. 3.53.  
2747 Costa Rica's first written submission, paras.  5.169 -5.170.  
2748 Costa Rica's first written submission, para. 5.171.  
2749 Costa Rica's second written submission, para. 3.54.  
2750 Costa Rica's second written submission, para. 3.55 (c iting Ploetz et al. (2011), (Exhibit MEX -56), 
p. 5). 
2751 Costa Rica's second written submission, para. 3.55 (citing Mohamed and Thomas (1980), 
(Exhibit  CRI-125); Desjardins (1987), (Exhibit CRI -101); Schnell et al. (2001), (Exhibit CRI -131); and 
Schnell  et al. (1997) , (Exhibit  MEX-68)). 
2752 Costa Rica's second written submission, para. 3.55 (citing Wutscher and Maxwell  (1969),  
(Exhibit  MEX-132); and Spalding et al. (1976),  (Exhibit MEX -133)). 
2753 Costa Rica's second written submission, para. 3.55 (cit ing Holdridge (1982), (Exhibit CRI -122); 
Galindo Tovar et al. (2008) , (Exhibit MEX -22); CONSULSANTOS (2010), (Exhibit MEX -119), p. 15; and 
"Agronomists rescue the best varieties of criollo avocado", ucr.ac.cr  (2019), (Exhibit CRI -58)). WT/DS524/R  
- 384 - 
  are infected with ASBVd will germinate2754; (vi) there is a very high probability, close to 100%, that 
the germination of seeds of symptomless infected fruits will transmit the viroid to the new tree2755; 
(vii) the spread of the viroid, once introduced, occurs mainly through grafting and the use of 
contaminated material2756; (viii) there is no cure for ASBVd and the only solution is to eradicate 
infected trees2757; and (ix) ASBVd has very significant economic conseque nces.2758 
7.1700.   Costa Rica states that, on this basis, it implemented phytosanitary requirements aimed at 
ensuring the absence of ASBVd in symptomless fruit. The exporting country can choose between 
three equally acceptable alternatives, and Costa Rica, for its pa rt, will verify the pest freedom 
certification at the entry point through sampling and laboratory testing (RT -PCR). In Costa Rica's 
view, this measure has a clear rational relationship with the conclusions reached in the risk 
assessment. Costa Rica adds th at the measure has a technical and scientific basis, even if the 
qualitative rating of the risk as medium  or high is contested, since what is crucial is that the risk 
exists and that ASBVd is a quarantine pest in Costa Rica, which means that the least that  should be 
applied to address this risk is a requirement for a consignment to be certified as free of ASBVd, 
together with verification upon arrival.2759 
7.1701.   Costa Rica submits that it protects its plant health system through controls at the entry 
points of good s, which involve a thorough examination of the documentation accompanying 
consignments of plant products and the subsequent inspection and verification of compliance with 
the phytosanitary requirements established for each product. Costa Rica states that i t implemented 
an innovative detection test for ASBVd at the border, which, within a very short period of time and 
using molecular biology techniques, establishes with the required certainty that the consignment is 
free of ASBVd. Costa Rica points out that domestic measures alone are insufficient to ensure that its 
ASBVd -free status is maintained.2760 
7.1702.   With respect to the second aspect of the analysis of Article  5.1, i.e. that the SPS measure 
be based on the risk assessment, the Panel  notes that the expression "based on" refers to an 
objective relationship between two elements, that is to say, to an objective situation that persists 
and is observable between an SPS measure and a risk assessment.2761 
7.1703.   As has been mentioned above, a panel's task under Article  5.1 is linked to the provisions 
of Article  2.2. In EC – Hormones , the Appellate Body considered that Article  5.1, when contextually 
read, in conjunction with and as informed by Article  2.2 of the SPS  Agreement, "requires that the 
results of the risk assessment must sufficiently warrant – that is to say, reasonably supp ort – the 
SPS measure at stake."2762 According to the Appellate Body, the requirement that an SPS measure 
be "based on" a risk assessment is "a substantive requirement that there be a rational relationship 
between the measure and the risk assessment".2763 
7.1704.   The panel in EC – Approval and Marketing of Biotech Products  also highlighted that the 
requirement in  Article  5.1 to base an SPS  measure on a risk assessment "is plainly a substantive 
 
2754 Costa Rica's second written submission, para. 3.55 (citing CONSULSANTOS (2017),  
(Exhibit  MEX-118); CONSULSANTOS (2010), (Exhibit  MEX-119); Cultural practices in sowing and managing 
avocado seeds in Costa Rica  (2019), (Exhibit CRI -44), p. 12; and Manual for Nurseries (2017),  
(Exhibit  CRI-43), p. 20). 
2755 Costa Rica's second written submission, para. 3.55 (citing Vargas et al. (1991), (Exhibit CRI -137); 
Hadidi et al. (2003), (Exhibit CRI -121); and Ochoa Ascencio (2013), (Exhibit CRI -128)). 
2756 Costa Rica's second written submission, para. 3.55 (citing Hadidi et al. (2003), (Exhibit CRI -121)). 
2757 Costa Rica's second written submission, para. 3.55 (citing Coit (1928), (Exhibit CRI -9); Hadidi et al. 
(2003), (Exhibit CRI -121); and Suarez et al. (2005), (Exhibit CRI -136)). 
2758 Costa Rica's second written submission, para. 3.55 (citing Saucedo Carabez et al. (2014), 
(Exhibit  MEX-45); Mohamed and Thomas (1980), (Exhibit CRI -125); Desjardins et al. (1980),  
(Exhibit CRI -116); and Hadidi et al. (2003), (Exhibit CRI -121)). 
2759 Costa Rica's second written submission, para. 3.56.  
2760 Costa Rica's opening statement at the first meeting of the Panel, paras.  15-21. 
2761 Appellate Body Report, India – Agricultural Products , para. 5.16 (citing Appellate Body Report, 
EC – Hormones , para. 18 9). 
2762 Appellate Body Report, EC – Hormones , para. 193. See also Panel  Report , US – Poultry (China) , 
para. 7.180; and Appellate Body Report,  India – Agricultural Products , para. 5.16.  
2763 Appellate Body Report, EC – Hormones , para. 193. See also Appellate  Body Report, 
India – Agricultural  Products , para. 5.16.  WT/DS524/R  
- 385 - 
  requirement, and not simply a formal requirement to accompany an SPS measure  by a risk 
assessment".2764 
7.1705.   The Panel has already concluded that Costa Rica's risk assessment contained in Reports 
ARP-002-2017 and ARP -006-2016 is not an assessment, as appropriate to the circumstances, of the 
risks to plant life or health within the meaning of Annex A(4) to SPS  Agreement  and Article  5.1 of 
that Agreement; and that Costa Rica failed to take into account in the risk assessment the factors 
listed in Articles 5.2 and 5.3 of the SPS  Agreement . The fact that Costa Rica's risk assessment doe s 
not comply with this means that it cannot be concluded that the phytosanitary measures, i.e. 
Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary requirements, 
are based on a risk assessment in accordance with Article  5.1 of the S PS Agreement . In this case, 
no objective or rational relationship can be established between the measure and the risk 
assessment, given that the risk assessment itself cannot be objectively justified.  
7.1706.   The Panel therefore concludes that Costa Rica has acted  inconsistently with Article  5.1 of 
the SPS  Agreement  by failing to ensure that its phytosanitary measures, i.e. Resolutions DSFE -002-
2018 and DSFE -003-2018, which contain the phytosanitary requirements, are based on an 
assessment, as appropriate to the ci rcumstances, of the risks to plant life or health.  
7.4.7   Whether the factors listed in Article  5.3 of the SPS  Agreement  were taken into 
account in determining the measure to be applied  
7.1707.   Mexico  claims that Costa Rica violated Article  5.3 of the SPS  Agreement  by failing to take 
into account the relevant economic factors in determining its measures.2765 
7.1708.   With regard to the potential damage in terms of loss of production or sales in the event of 
the entry, establishment or spread of a pest or disease, Mexico submits that  Resolutions DSFE -002-
2018 and DSFE -003-2018 do not transcribe, either in monetary terms or in any other quantitative 
manner, the calculation of the potential damage in terms of loss of production or sales, and how this 
relates to the measures that were de termined to apply to imports of fresh avocados for consumption 
from Mexico.2766 Mexico asserts that a consistent argument in both resolutions is that ASBVd can 
lead to a decline in avocado production, but at no point is a quantitative or qualitative analysis  
carried out in which the economic impacts of this are specified.2767 
7.1709.   Turning to the costs of control or eradication in the territory of the importing Member , 
Mexico notes that the resolutions ignore this economic factor because, for example, there is no 
mention of what would be the cost to the public purse or to avocado producers in order to prevent 
the spread of ASBVd in avocado orchards, or to eradicate the pest.2768 
7.1710.   On the relative cost -effectiveness of alternative approaches to limiting risks , Mexico 
submits that the resolutions give no reasoning or explanation of the alternatives considered and of 
the relative cost -effectiveness of methods other than the requirement for a phytosanitary certificate, 
the declaration of a PFA or the application of a system s approach to limit the alleged risks associated 
with the entry and establishment of ASBVd.2769 Mexico states that, in order to analyse this economic 
factor, the SFE should have taken into consideration at least the possibility of establishing measures 
such as those aimed at preventing diversion from intended use, and set forth the reasons why it 
was not a suitable option in this case.2770 
7.1711.   Costa Rica  contends that Mexico puts forward the same arguments with respect to 
Resolutions DSFE -002-2018 and DSFE -003-2018 containing the phytosanitary requirements 
adopted by Costa Rica, i.e. the lack of consideration of losses of production and sales, of the costs 
of control or eradication, and of the relative cost -effectiveness of alternative measures. Costa Rica 
notes, ho wever, that the obligation to take into account relevant economic factors when determining 
the measure to be applied arises in the context of complying with other obligations, such as those 
 
2764 Panel  Report , EC – Approval and Marketing of Biotech Products , para.  7.3067.  
2765 Mexico's first written submission, p. 123.  
2766 Mexico's first written submission, para. 499.  
2767 Mexico's first written submission, para. 500.  
2768 Mexico's first written submission, para. 501.  
2769 Mexico's first written submission, para. 502.  
2770 Mexico's first written submission, para. 503.  WT/DS524/R  
- 386 - 
  pursuant to Articles 2.2 and 5.6 of the SPS  Agreement .2771 Costa Ric a adds that, while it has already 
responded to these arguments under Article  5.1 of the SPS  Agreement , it will address them again 
in the context of Mexico's claim under Article  5.6 of the SPS  Agreement .2772 
7.1712.   Costa Rica points out that, when one speaks of "pot ential" economic damage, the costs of 
control or eradication of a pest that does not yet exist, and the cost -effectiveness of "potential" risk 
mitigation measures, one is speaking of hypothetical or potential scenarios that could occur if the 
pest existed in the national territory and produced effects, and that this intellectual exercise may be 
overly complex.2773 Costa Rica adds that, despite the potential complexity of this assessment, it did 
its utmost to consider the possible adverse effects of the establ ishment and spread of the viroid and 
the possible costs of eradication in the event of its spread, and that the relative cost -effectiveness 
of alternative approaches to limiting risks was considered and discussed at length.2774 
7.1713.   The European  Union  considers, as a third party, that the relevant economic factors listed 
in Article  5.3 may be relevant for Articles 5.4 and 5.6. For example, the potential damage in terms 
of loss of production or sales in the event of the entry, establishment or spread of a pest or d isease 
can be relevant when deciding the trade -restrictiveness of the SPS measure. The European  Union  
recalls that Articles 5.4 and 5.6 of the SPS  Agreement  are particularly relevant to the risk 
management decision, and are part of the context in which a M ember is required to take into account 
the relevant economic factors listed in Article  5.3 of the SPS  Agreement  when determining the 
measure it will apply to achieve its ALOP.2775 
7.1714.   Canada , as a third party, is of the view that Articles 5.4 and 5.6 apply to th e second 
situation set out in Article  5.3 – i.e. determining the measure to be applied for achieving the 
Member's ALOP.2776 Canada adds that, in complying with Articles 5.4 and 5.6, the Member is required 
to take into account the relevant economic factors li sted in Article  5.3 when determining whether 
the SPS measure it establishes or maintains will achieve its ALOP.2777 Canada also notes that 
Article  5.4 does not contain an obligation, but presents a "discipline" that Members must respect 
when deciding on their ALOP and take into account in the interpretation of other SPS  Agreement  
provisions, including Articles 5.3 and 5.6.2778 
7.1715.   El Salvador  is of the view, as a third party, that, in order to comply with the provisions of 
Articles 5.4 and 5.6 of the SPS  Agreem ent, a Member must take into account the relevant economic 
factors referred to in Article  5.3 so as to adopt an appropriate risk analysis and level of protection.2779 
7.1716.   The Panel  recalls that Article  5.3 sets forth the obligation of taking into account the 
relevant economic factors listed therein in two different situations: (i)  in assessing the risk to animal 
or plant life and health; and (ii)  in determining the measure to be applied to achieve the ALOP.2780 
Mexico claims that Costa Rica violated Article  5.3 of the SPS  Agreement  by failing to take into 
account the factors in Article  5.3 in both situations.2781 With regard to the first situation, the Panel 
concluded in section 7.4.5.8  above that Costa Rica failed to take into account the relevant economic 
factors under Article  5.3 in its assessment of the risk in question.  
7.1717.   With respect to the second situation, the panel in Russia  – Pigs (EU)  considered that the 
relevant economic factors listed in Article  5.3 shall be taken into account in the context of complying 
with Articles 2.2, 5.4, and 5.6 of the SPS  Agreement .2782 
 
2771 Costa Rica's first written submission, para. 5.191 (citing Panel  Report , Russia – Pigs (EU) , 
para. 7.771).  
2772 Costa Rica's first written submission, para. 5.191.  
2773 Costa Rica's response to Panel question No. 56, para. 1.  
2774 Costa Rica's response to Panel qu estion No. 56, paras.  2-3. 
2775 European  Union 's response to Panel question No. 8, paras.  34-37. 
2776 Canada's response to Panel question No. 8(d), para. 28.  
2777 Canada's response to Panel question No. 8(d), para. 29.  
2778 Canada's response to Panel question No. 8(d) , para. 30 (citing Panel  Report s, US – Animals , 
para. 7.399; EC – Hormones (Canada) , para. 8.169; and EC – Hormones (US) , para. 8.166; and 
Appellate  Body Report,  US – Continued Suspension , fn 1088).  
2779 El Salvador's response to Panel question No. 8(d).  
2780 Panel Report, Russia – Pigs (EU) , para. 7.769.  
2781 Mexico's first written submission, p. 123.  
2782 Panel  Report , Russia – Pigs (EU) , para. 7.771.  WT/DS524/R  
- 387 - 
  7.1718.   In this Panel's view, the analysis of the relevant economic factors in Arti cle 5.3 may be 
relevant to Articles 5.4 and 5.6 of the SPS  Agreement , and particularly to Article  5.6 addressing the 
establishment of a measure, because these economic factors, and in particular the relative 
cost-effectiveness of alternative approaches to limiting risks, can be considered in the analysis of 
the negative trade effects (Article  5.4) or trade -restrictiveness (in Article  5.6). 
7.1719.   However, the Panel considers that a complainant may claim that the relevant economic 
factors were not taken into accoun t in determining the measure to be applied for achieving the ALOP, 
without having to refer to its claims of inconsistency with Article  5.4 or Article  5.6 of the 
SPS Agreement , or to its claims of inconsistency with Article  2.2 of the SPS  Agreement . 
7.1720.   In the circumstances of the case at hand, the Panel considers that its finding that Costa  Rica 
failed to take into account the relevant economic factors in Article  5.3 when assessing the risk in 
question is an indication that these relevant economic factors were not taken into account when 
determining the measure to be applied.  
7.1721.   Costa Rica indicates that the relative cost -effectiveness of alternative approaches to limiting 
risks was considered and discussed at length in a technical working group of the SFE, and tha t, in 
light of what was on the record at the time the PRA was finalized, the risk management section 
contains the three possible measures that were acceptable to Costa Rica.2783 
7.1722.   The Panel notes that Costa Rica itself refers to its PRA to assert that it has c onducted an 
analysis of the relative cost -effectiveness of alternative approaches to limiting risks. Costa Rica does 
not provide explanations or additional evidence on how it considered the relative cost -effectiveness 
of alternative approaches to limiting risks or any of the other factors in Article  5.3, but instead refers 
to its arguments in response to Mexico's claims under Articles 5.1 and 5.6 of the SPS  Agreement . 
The Panel considers that there is no indication that Costa Rica has considered the relevan t economic 
factors at a time other than during the preparation of the PRAs. Resolutions DSFE -002-2018 and 
DSFE -003-2018 do not contain any information in this respect.  
7.1723.   In light of the foregoing, the Panel concludes that, in determining the measure to be ap plied 
for achieving its ALOP, Costa Rica failed to take into account the potential damage in terms of loss 
of production or sales in the event of the entry, establishment or spread of ASBVd; the costs of 
control or eradication in Costa Rican territory; and  the relative cost -effectiveness of alternative 
approaches to limiting risks. The Panel therefore concludes that Costa Rica has acted inconsistently 
with Article  5.3 of the SPS  Agreement  because it failed to take into account the relevant economic 
factors listed in this Article when determining its phytosanitary measures.  
7.4.7.1   Whether Costa Rica has acted inconsistently with Article  2.2 of the 
SPS Agreement  
7.1724.   Mexico  claims that Costa Rica's phytosanitary measures are inconsistent with Article  2.2 
of the SPS  Agreem ent.2784 Mexico contends that, since it can be presumed that a violation of 
Article  5.1 of the SPS  Agreement  results in a violation of Article  2.2, Costa Rica's measures are also 
contrary to Article  2.2 because they are not based on scientific principles and are maintained without 
sufficient scientific evidence.2785 
7.1725.   Mexico submits that, as is clear from the section in which Articles 5.1 and 5.2 of the 
SPS Agreement  were analysed, the risk assessment conducted by Costa Rica is based on assertions 
that are not supported by scientific evidence and that are central to its reasoning for determining 
the risk and the phytosanitary measures applied. With respect to these assertions and arguments, 
Mexico states that:  
a. CONSULSANTOS (2010) does not mention tha t there is a high tendency among producers 
to use for sowing the seeds of avocados imported for consumption, and therefore does not 
 
2783 Costa Rica's response to Panel question No. 56, para. 3.  
2784 Mexico's first written submission, para. 510.  
2785 Mexico's  second written submission, para. 208.  WT/DS524/R  
- 388 - 
  prove a practice of diversion from intended use. The PRA recognizes that there are no 
statistics on the amount of fruit impo rted from which the seed is extracted.  
b. CONSULSANTOS (2010) does not provide scientific evidence that seeds that fall on the 
ground germinate by themselves without human assistance, which is an assertion that 
seeks to increase the risk of intentional or uni ntentional diversion from intended use.  
c. CONSULSANTOS (2010) presents no evidence on the climatic conditions specific to 
avocado cultivation, instead it refers to coffee growing. For Mexico, although the PRA does 
address the practically spontaneous germinat ion of the seeds, it does not present evidence 
of how the dry season is taken into account in the risk posed by imports of avocados for 
consumption, and Costa Rica appears to assume a high import risk throughout the year.  
d. Costa Rica assumes that there is a  high import risk without calculating the probability that 
the imported avocados contain asymptomatic ASBVd, and assumes a high probability of 
diversion from intended use without demonstrating the link between imports and the 
probability that each seed wil l be used for a purpose other than consumption. Therefore, 
although Costa Rica's central concern is based on diversion from intended use, the risk 
assessment is not specific to this risk.  
e. The high probabilities determined by Costa Rica in relation to the i ntroduction, 
establishment and spread of ASBVd cannot be reconciled with the assertion that ASBVd is 
not present in its territory. This is because Costa Rica states  that a practice of diversion 
from intended use exists and assumes that there is a high risk  arising from the volume of 
avocados imported from Mexico, the main exporter to Costa Rica for a number of years. 
In addition, other countries where ASBVd is present have exported avocados for 
consumption to Costa Rica for many years.  
f. Costa Rica has failed  to carry out an assessment according to the measures that might be 
applied.  
g. The flaws in the reasoning in the PRA mean that there is no rational relationship between 
the scientific evidence and the risk assessment, and between the measures seeking to 
address the risk identified by Costa Rica and the risk assessment, since they are not 
sufficiently supported by scientific evidence.  
h. CONSULSANTOS (2010) and CONSULSANTOS (2017) do not support Costa Rica's 
conclusions that the use of seeds from fresh avocados i mported from Mexico is a risk factor 
for the transmission of ASBVd, or the argument that it is specifically the seeds of fresh 
avocados imported for consumption that are used as rootstock for sowing avocado 
plantations.  
i. The PRAs are not supported with scie ntific evidence indicating that fresh avocados for 
consumption imported from Mexico are a pathway for the transmission of ASBVd, or with 
scientific evidence that supports its conclusions with regard to the high probability of entry, 
establishment and sprea d of ASBVd through fresh avocados imported for consumption 
from Mexico.2786 
7.1726.   Mexico concludes that, in light of the foregoing, the PRA and the evidence provided therein 
do not constitute sufficient scientific evidence to prove the specific risk that the seeds of avocados 
imported for consumption will be used for propagation purposes, thereby spreading ASBVd. There 
is no relationship between the risk, the evidence and the assessment in the analysis. Therefore, the 
measures have been maintained without suff icient scientific evidence and, in this regard, it cannot 
be stated that they are based on scientific principles.2787 
7.1727.   Costa Rica  submits that Mexico has failed to prove that Costa Rica's measures are 
inconsistent with Article  2.2 of the SPS  Agreement .2788 Costa Rica states  that Mexico repeats the 
 
2786 Mexico's first written submission, para. 514.  
2787 Mexico's first written submission, para. 515.  
2788 Costa Rica's first written submission, p. 71.  WT/DS524/R  
- 389 - 
  arguments that it already put forward under Articles 5.1 and 5.2 of the SPS  Agreement , and that 
Mexico failed to demonstrate that Costa Rica has acted inconsistently with Articles 5.1, 5.2, and 5.3, 
which means that Me xico also failed to demonstrate that Costa Rica has acted inconsistently with 
Article  2.2 of the SPS  Agreement .2789 
7.1728.   The Panel  recalls that Article  2.2 establishes the following:  
Members shall ensure that any sanitary or phytosanitary measure is applied only to the 
extent necessary to protect human, animal or plant life or health, is based on scientific 
principles and is not maintained without sufficient scientific evidence, except as provided 
for in paragraph 7 of Article  5. 
7.1729.   The Panel also recalls that the Ap pellate Body in Australia – Apples  explained that Article  2.2 
"focuses on the need for an SPS measure to be based on scientific principles and sufficient scientific 
evidence".2790 Moreover, the Appellate Body in India – Agricultural Products  stated that a panel's 
task under Article  2.2, as under Articles 5.1 and 5.2, encompasses a scrutiny of the scientific basis 
underlying a risk assessment and the SPS measure at issue.2791 
7.1730.   Regarding the sufficiency of the scientific evid ence, the Appellate Body in 
Japan  – Agricultural Products II  considered that the ordinary meaning of "sufficient" is "of a quantity, 
extent, or scope adequate to a certain purpose or object", and that, from this, it can be concluded 
that "'sufficiency" is a relational concept that requires the existence of a sufficient or adequate 
relationship between two elements, in casu , between the SPS measure and the scientific 
evidence.2792 The Appellate Body noted that the obligation under  Article  2.2 that an SPS measu re 
not be maintained without sufficient scientific evidence requires that there be a rational or objective 
relationship between the SPS measure and the scientific evidence.2793 
7.1731.   In accordance with the foregoing, a panel's task under Article  2.2 encompasses a scrutiny 
of the scientific basis underlying a risk assessment and the measure at issue, and the obligation that 
an SPS measure not be maintained without sufficient scientific evidence requires that there be a 
rational or objective relationship between the SPS measure and the scientific evidence.  
7.1732.   The Panel recalls that, when analysing the claims under Articles 5.1, 5.2, and 5.3 of the 
SPS Agreement , the Panel found flaws in Reports ARP -002-2017 and ARP -006-2016 relating to the 
scientific basis of the risk as sessment, including the lack of sufficient evidence related to certain 
significant aspects of this assessment, and also with respect to the risk analyst's reasoning. The 
Panel considered that these flaws are sufficient to conclude that Costa Rica's risk as sessment 
contained in Reports ARP -002-2017 and ARP -006-2016 is not an assessment, as appropriate to the 
circumstances, of the risks to plant life or health within the meaning of Annex A(4) to the 
SPS Agreement  and Article  5.1 of that Agreement; and that Co sta Rica failed to take into account in 
the risk assessment the factors listed in Articles 5.2 and 5.3 of the SPS  Agreement . 
7.1733.   The Appellate Body in India – Agricultural Products  explained that an SPS measure found 
to be inconsistent with Articles 5.1 and 5. 2 can be presumed, more generally, to be inconsistent 
with Article  2.2.2794 In other words, a finding of inconsistency with Articles 5.1 and 5.2 gives rise to 
a presumption of inconsistency with Article  2.2. Although the Appellate Body warned that the 
presum ption of inconsistency is rebuttable, it also recognized that establishing that there exists a 
rational or objective relationship between the SPS measure and the scientific evidence for the 
purposes of Article  2.2 would, in most cases, be difficult without  a Member demonstrating that such 
a measure is based on an assessment of the risks, as appropriate to the circumstances.2795 
 
2789 Costa Rica's first written submission, paras.  5.194 -5.195.  
2790 Appellate Body Report, Australia – Apples , para. 209.  
2791 Appellate Body Report, India – Agricultural Products , para. 5.22.  
2792 Appellate Body Report, Japan – Agricultural Products II , para. 73.  
2793 Appellate Body Report, Japan – Agricultural Products II , para. 84 (citing Panel  Report , 
Japan  – Agricultural  Products II , paras.  8.29 and 8.42).  
2794 Appellate Body Report, India – Agricultural Products , para. 5.23 (citing Appellate Body Reports, 
Australia  – Salmon , para. 138; and Australia – Apples , para. 340).  
2795 Appellate Body Report, India – Agricultural Products , para. 5.29 and fn  305. WT/DS524/R  
- 390 - 
  7.1734.   This Panel considers that its conclusions that Costa Rica has acted inconsistently with 
Article  5.1 of the SPS  Agreement  because it failed to ensure that its phytosanitary measures, i.e. 
Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary requirements, 
are based on a risk assessment, as appropriate to the circumstances, of the risks to plant life or  
health, and with Article  5.2 of the SPS  Agreement  because it failed to take into account the relevant 
factors in this Article in assessing the risks, are sufficient to conclude that Costa Rica has acted 
inconsistently with the obligation under Article  2.2 of the SPS  Agreement  to ensure that any SPS 
measure is based on scientific principles and is not maintained without sufficient scientific evidence. 
This is because of the flaws relating to the scientific basis and the risk analyst's reasoning, which 
mean it cannot be concluded that there is a rational or objective relationship between the SPS 
measure and the scientific evidence for the purposes of Article  2.2.2796 
7.1735.   In light of the foregoing, the Panel concludes that Costa Rica has acted inconsistently with 
Article 2.2 of the SPS  Agreement , by failing to ensure that its phytosanitary measures, i.e. 
Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary requirements, 
are based on scientific principles and are not maintained without sufficie nt scientific evidence.  
7.4.8   Overall conclusion of the section on Mexico's claims concerning the risk assessment  
7.1736.   The Panel concludes that:  
a. Costa Rica has acted inconsistently with Article  5.1 of the SPS  Agreement , by failing to 
ensure that its phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-
2018, which contain the phytosanitary requirements, are based on an assessment, as 
appropriate to the circumstances, of the risks to plant life or health.  
b. Costa Rica has acted inconsistent ly with Article  5.2 of the SPS  Agreement , because, in the 
assessment of risks, it failed to take into account available scientific evidence and the 
prevalence of specific diseases or pests.  
c. Costa Rica has acted inconsistently with Article  5.3 of the SPS  Agreement , because, in 
assessing the risk to plant life or health and determining the measure to be applied for 
achieving the appropriate level of phytosanitary protection from such risk, it failed to take 
into account as relevant economic factors: the poten tial damage in terms of loss of 
production or sales in the event of the entry, establishment or spread of a pest or disease; 
the costs of control or eradication in the territory of the importing Member; and the relative 
cost-effectiveness of alternative ap proaches to limiting risks.  
d. Costa Rica has acted inconsistently with Article  2.2 of the SPS  Agreement , by failing to 
ensure that its phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-
2018, which contain the phytosanitary requirements, are  based on scientific principles and 
are not maintained without sufficient scientific evidence.  
7.5  Mexico's claims regarding the obligations of the SPS  Agreement  concerning trade 
restrictiveness  
7.5.1   General introduction  
7.1737.   Mexico asserts that, in order to determine w hether the proposed alternative measure would 
achieve the appropriate level of protection (ALOP), the first consideration to identify is the ALOP set 
by the importing Member.2797 Mexico notes that Costa Rica has not defined its ALOP with sufficient 
precision , and that Costa Rica's "maximum" ALOP is not consistent with an objective assessment of 
the facts.2798 
7.1738.   Mexico submits that there are alternative measures to those adopted in 
Resolutions  DSFE -003-2018 and DSFE -002-2018, and notes that the following measures are 
 
2796 The Panel also observes that Costa Rica has failed to submit specific arguments to rebut the 
presumption of inconsistency arising from the finding of inconsistency with Articles 5.1 and 5.2 of the 
SPS Agreement in the present case.  
2797 Mexico's first writte n submission, para. 559.  
2798 Mexico's second written submission, pp. 60 -61. WT/DS524/R  
- 391 - 
  reasonably available to Costa Rica, considering their technical and economic feasibility: (i)  regulation 
to prevent diversion from intended use of the seed of fresh avocados for consumption as a 
propagation m ethod for new plants; and (ii)  ASBVd symptom -free certification of shipments.2799 
7.1739.   Costa Rica notes that its ALOP is to make every reasonable effort to prevent the entry of 
ASBVd into its territory and thus maintain its current ASBVd -free phytosanitary  status2800, and it 
does not consider that the qualitative definition of its ALOP should be challenged as vague or 
equivocal.2801 
7.1740.   Costa Rica submits that Mexico has failed to  demonstrate that there is another measure, 
reasonably available taking into account technica l and economic feasibility, that achieves 
Costa  Rica's ALOP and that is, at the same time,  significantly less restrictive to trade.2802 For 
Costa  Rica, Mexico has failed to  establish that the alternative measures meet the three requirements 
of Article  5.6 of  the SPS  Agreement .2803 
7.1741.   In this section, the Panel will first address the subject of Costa Rica's ALOP, which will be 
relevant to its analysis of Mexico's claims under Articles 5.5 and 5.6 of the SPS  Agreement . The 
Panel will then analyse whether, by identif ying alternative measures that meet the requirements of 
Article  5.6 of the SPS  Agreement , Mexico has demonstrated that Costa Rica has acted inconsistently 
with that Article. 
7.1742.   To this end, the Panel will first identify the legal provisions that are relevant to both matters , 
and will then outline  the legal standard and carry out the analysis for each matter , that is, first with 
respect to the ALOP and then regarding whether Mexico has substantiated  its claim under Article  5.6 
of the SPS  Agreement . 
7.5.2   The r elevant legal provisions  
7.1743.   Article  5.6 of the SPS  Agreement  states as follows:  
Without prejudice to paragraph 2 of Article  3, when establishing or maintaining sanitary 
or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary 
protection, Members shall ensure that such measures are not more trade -restrictive 
than required to achieve their appropriate level of sanitary or phytosanitary protection, 
taking into account technical and economic feasibility.[3] 
3 For purposes of paragrap h 6 of Article  5, a measure is not more trade -restrictive than required 
unless there is another measure, reasonably available taking into account technical and economic 
feasibility, that achieves the appropriate level of sanitary or phytosanitary protectio n and is 
significantly less restrictive to trade.  
7.1744.   Paragraph 5 of Annex A to the SPS  Agreement  defines "appropriate level of sanitary or 
phytosanitary protection" as "[t]he level of protection deemed appropriate by the Member 
establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health 
within its territory". The  note to this paragraph states that many Members otherwise refer to this 
concept as the "acceptable level of risk".  
7.5.3   Legal standard for determin ing the ALOP  
7.1745.   In this section, the Panel will describe how other panels and the Appellate Body have 
interpreted th e legal standard for determin ing a Member 's ALOP. The Panel will be guided by these 
interpretations to the extent that they are relevant to its analysis.  
 
2799 Mexico's first written submission, para. 549.  
2800 Costa Rica's first written submission, para. 5.216.  
2801 Costa Rica's first written submission, para. 5.233 ( citing  Panel  Report , Korea  – Radionuclides , 
para. 7.247).  
2802 Costa Rica's first written submission, para. 5.216.  
2803 Costa Rica's first written submission, para. 5.225.  WT/DS524/R  
- 392 - 
  7.1746.   The Appellate Body has made it clear in a number of disputes that WTO Members have the 
"prerogative" t o set their own ALOP.2804 
7.1747.   In this regard, in the context of its analysis under Article  5.6 of the SPS  Agreement , the 
Appellate Body in Australia – Salmon  noted that neither the DSU nor the SPS  Agreement  entitled 
the panel or the Appellate Body to substitute its own reasoning about the implied level of protection 
for that expressed consistently by the respondent in that case (Australia).2805 The Appellate Body 
observed that the respondent in that case had determined its ALOP with "sufficient precision" to 
apply Article  5.6.2806, 2807 
7.1748.   In the same Australia – Salmon  case, the Appellate Body made a distinction between the 
ALOP, which is an objective , and the SPS measure, which is an instrument  chosen to attain or 
implement that objective.2808 On the basis of the wording of Article  5.6 of the SPS  Agreement , the 
Appellate Body noted that "the determination of the level of protection is an element in the 
decision -making process which logically prece des and is separate  from the establishment or 
maintenance of the SPS measure."2809 The Appellate Body added that it is the ALOP which 
determines the SPS measure to be introduced or maintained, not the SPS measure introduced or 
maintained which determines the  ALOP.2810 Hence, for the Appellate Body, to imply the ALOP from 
the existing SPS measure would be to assume that the measure always achieves the ALOP 
determined by the Member. That cannot be the case.2811 
7.1749.   Also, the Appellate Body noted in India – Agricultural  Products  that identifying the 
responding Member's ALOP on the basis of the SPS measure at issue is not desirable because it may 
lead to a circular analysis, even if it may be necessary to adopt such an approach in certain 
circumstances, in particular, whe re a Member does not determine its ALOP, or does so with 
insufficient precision.2812 
7.1750.   The Appellate Body in Australia – Salmon  recognized  that the SPS  Agreement  does not 
contain an explicit provision that obliges Members to determine the ALOP2813, but it consid ered that 
the SPS  Agreement  contains an implicit obligation to determine the ALOP.2814 While a Member is not 
required to determine the ALOP in quantitative terms, a Member is not free to determine  its level of 
protection with such vagueness or equivocation t hat the application of the relevant provisions of the 
SPS Agreement  becomes impossible.2815 
7.1751.   In this regard, the panel in Australia – Apples  noted that Members should not be allowed 
to hide behind a generically stated ALOP.2816 The panel explained that, otherwise, obligations under 
Article  5.5 of the SPS  Agreement  would be diminished.2817 The panel in India – Agricultural Products  
considered that an ALOP will express a certain threshold that denotes the position of the relevant 
 
2804 Appellate Body Reports, Korea  – Radionuclides , para. 5.23; India – Agricultural Products , 
para. 5.205; Australia  – Apples,  para. 342; and Australia  – Salmon,  para. 199.  
2805 Appellate Body Report, Australia – Salmon , para. 199.  
2806 Appellate Body Report, Australia – Salmon , para. 207.  
2807 It should be noted that, with regard to compliance, the panel observed, pare nthetically, that a more 
explicit and in particular  a quantitative expression of a Member's ALOP would greatly facilitate the 
consideration of compliance with not only Article 5.6 but with other provisions of the SPS Agreement as well. 
(Panel  Report , Austr alia – Salmon  (Article 21.5 – Canada) , para. 7.129).  
2808 Appellate Body Report, Australia – Salmon , para. 200.  
2809 Appellate Body Report, Australia – Salmon , para. 203. (emphasis original) See also 
Appellate  Body Report s, US/Canada – Continued Suspension , para . 523.  
2810 Appellate Body Report, Australia – Salmon , para. 203.  
2811 Appellate Body Report, Australia – Salmon , para. 203. See also Appellate Body Report, 
India – Agricultural  Products , para. 5.205.  
2812 Appellate Body Report, India – Agricultural Products , para. 5.226. See also Panel  Report, 
Korea  – Radionuclides,  para. 7 .159 ( citing  Appellate Body Report, India – Agricultural Products , para. 5.226) . 
2813 Appellate Body Report, Australia – Salmon , para. 205.  
2814 Appellate Body Reports, Australia – Salmo n, para. 206; US/Canada – Continued Suspension , 
para. 523; Australia – Apples , para. 343; and India – Agricultural Products , para. 5.221.  
2815 Appellate Body Report, Australia – Salmon , para. 206. See also Appellate Body Reports 
Korea  – Radionuclides , para. 5.23 (citing Appellate Body Report, Australia – Apples , para. 343, in turn referring 
to Appellate  Body Report, Australia  – Salmon,  para. 206); and US/Canada – Continued Suspension , para. 523.  
2816 Panel  Report , Australia – Apples , para. 7.970. See also Panel  Report , Korea  – Radionuclides , 
para. 7.158.  
2817 Panel  Report , Australia – Apples , para. 7.970.  WT/DS524/R  
- 393 - 
  Member in relation to the intensity, extent, or relative amount of protection or risk that the Member 
deems to be tolerable or suitable.2818 
7.1752.   In Korea – Radionuclides , the Appellate Body reaffirmed that Members adopting SPS 
measures must determine their ALOP wi th sufficient precision to enable the application of the 
relevant provisions of the SPS  Agreement .2819 
7.1753.   In Australia – Salmon , the Appellate Body noted that, in cases where a Member does not 
determine its ALOP, or does so with insufficient precision, the ALOP  may be established by panels 
on the basis of the level of protection reflected in the SPS measure actually applied.2820 
7.1754.   The Appellate Body  noted in India – Agricultural Products , and reiterated in 
Korea  – Radionuclides , that typically a panel would be expected to accord weight to the respondent's 
articulation of its ALOP, particularly where that ALOP was specified in advance of the adoption of the 
SPS measure, where the ALOP is specified with sufficient precision, and where it has been 
consistently expr essed by the responding Member.2821 However, the Appellate Body added that a 
panel is not required to defer completely to a respondent's articulation of its own ALOP, particularly 
where the respondent has not expressed its ALOP with sufficient precision.2822 
7.1755.   According to the Appellate Body, a panel must ascertain the respondent's ALOP on 
the basis of the totality of the arguments and evidence on the record2823, which may include 
the level of protection reflected in the SPS measure actually applied.2824 The Appellat e Body in 
India – Agricultural Products  noted that this duty applies equally when a claimant contends that the 
ALOP expressed or identified by the respondent for purposes of WTO dispute settlement proceedings 
does not genuinely reflect that Member's ALOP.2825 
7.1756.   In short, as stated  by other panels  and the Appellate Body , Members have the prerogative 
to set their own ALOP, although they must determine their ALOP with sufficient precision to enable 
the application of the relevant provisions of the SPS  Agreement . As noted, it is not desirable to 
identif y the responding Member's ALOP on the basis of the SPS measure at issue, although this 
approach may be adopted where a Member does not determine its ALOP, or does so with insufficient 
precision. Although  the panel is expected to accord  weight to the articu lation  of an ALOP  specified 
in advance  of the adoption of the measure, with sufficient precision and consistently expressed, the 
panel is not required to defer completely to the respondent's characterization  of its own ALOP, and 
it must ascertain  the respo ndent's ALOP on the basis of the totality of the arguments and evidence 
on the record, which may include the level of protection reflect ed in  the SPS measure actually 
applied.  
7.5.4   The Panel 's analysis of Costa Rica's appropriate level of protection (ALOP)  
7.1757.   Mexi co submits that, in order to determine whether the proposed alternative measure 
would achieve the ALOP, the first consideration to identify is the ALOP set by the importing 
Member.2826 Mexico states that consideration should be given to: (i)  whether Costa Ri ca determined 
an ALOP; (ii)  whether that determination was made with sufficient precision; and (iii)  whether, if the 
 
2818 Panel  Report , India – Agricultural Products , para. 7.562.  
2819 Appellate Body Report, Korea – Radionuclides , para. 5.23 (citing Appellate Body Report, India – 
Agricultural Products , para. 5.205, in turn referring to Appellate Body Reports, Australia – Apples , para. 343; 
and Australia – Salmon , paras.  205-206).  
2820 Appellate Body Report, Australia – Salmon , para. 207. See also Panel  Report s, US – Poultry (China) , 
para. 7.220; and Korea – Radionuclides , para. 7.159.  
2821 Appellate Body Reports, India – Agricultural Products , para. 5.221; and Korea  – Radionuclides , 
para. 5.24 (citing Appellate Body Report, India – Agricultural Products , para. 5.221).  
2822 Appellate Body Reports, India – Agricultural Products , para. 5.221; and Korea – Radionuclides , 
para. 5.24. 
2823 Appellate Body Reports, India – Agricultural Products , para. 5.221; and Korea – Radionuclides , 
para. 5.24. 
2824 Appellate Body Report, Korea – Radionuclides , para. 5.24.  
2825 Appellate Body Report, India – Agricultural Products , para. 5.221.  
2826 Mexico's first written submission, para. 559.  WT/DS524/R  
- 394 - 
  first two requirements were met, the measure does not determine the ALOP in vague or equivocal 
terms.2827 
7.1758.   Mexico indicates that in Reports AR P-002-2017 and ARP -006-2016 Costa Rica defines its 
ALOP as the "maximum level of phytosanitary protection " and that, accordingly, Costa Rica defines 
its ALOP or its acceptable level of risk in a vague, uncertain , and confusing  manner.2828 
7.1759.   Mexico states that Costa Rica determined the maximum level of phytosanitary protection 
without sufficient precision2829; that Costa Rica's risk analysis does not indicate anywhere what is 
meant by "maximum level of phytosanitary protection "; and that the reference to it i s not sufficient 
to determin e the objective of applying the measures in question.2830 Mexico adds that, in the absence 
of clarity with respect to the ALOP, this determination is expressed in vague or equivocal terms.2831 
7.1760.   According to Mexico, the Panel can dedu ce Costa Rica's ALOP from the measures at issue, 
as it was not clearly stated and there is a discrepancy between what Costa Rica asserts and the 
specific facts.2832 
7.1761.   Mexico notes that, from Costa Rica's clarification of its ALOP, it understands that the latte r 
adopts an approach that is not limited to seeking the least trade -restrictive measure, as the objective 
of "making every reasonable effort" is contrary to seeking what is necessary to achieve the purpose 
that Costa Rica is presumably pursuing.2833 
7.1762.   Mexico s ubmits that, neither the PRAs nor Costa Rica's supposed clarification of its ALOP in 
its first written submission, allow possible alternative measures  to be identified , particularly 
considering  that the definition of its ALOP is based on one of the grounds  giving rise to this dispute: 
the supposed absence of ASBVd in Costa Rican territory.2834 Mexico further asserts that the 
clarification of the ALOP was subsequent to Costa Rica 's adoption of the measures, contrary to the 
aim of the determination of the ALOP.  Mexico adds that Costa Rica introduces another interpretation 
of its ALOP in its responses to the Panel's questions, namely, "the maximum level of protection 
means taking the necessary measures that minimize to the greatest extent  the risk of entry  of the  
quarantine pest concerned".2835 According to Mexico, from the many clarifications of the ALOP, it is 
clear that Costa Rica has adopted a "moving target " strategy, which shows that Costa Rica justified 
its measures ex post facto .2836 
7.1763.   Mexico asserts that, as a  result of Costa Rica's lack of precision in establishing unequivocally 
its ALOP, it is impossible to identify alternative measures  with precision, and it had difficulties in  
identifying alternative measures, although it considers that  the measures it  has proposed achieve 
Costa Rica's vague ALOP.2837 
7.1764.   Mexico submits that at the outset it assumed that the maximum level of phytosanitary 
protection implied an acceptable level of risk close to zero, which is impossible to set. Therefore, 
Mexico adds, in recogni tion of  WTO Members ' right to adopt  measures that seek to do  what is 
necessary to protect their plants from the entry, establishment and spread of pests, that it assumed 
that Costa Rica's maximum ALOP was to significantly reduce the risk of entry, establishment and 
spread of ASBVd involved in the trade  in fresh avocados for consumption.2838 
7.1765.   Furthermore , in its first written submission, Mexico stated that , assuming for the sake of 
argument that a maximum level of phytosanitary protection means  that ASBVd is not introduced 
into Costa Rican territory, the ad option of this ALOP was not consistent with Costa Rica's failure to 
 
2827 Mexico's first written submission, para. 560.  
2828 Mexico's first written submission, para. 561.  
2829 Mexico's first written submission, para. 562; second written submission, para. 257.  
2830 Mexico's first written submission, para. 562; second written submission, para. 259; response to 
Panel question  No. 91, paras.  92, and 94.  
2831 Mexico's first written submission, para. 562.  
2832 Mexico's second written submission, paras. 257 -258. 
2833 Mexico's second written submission, para. 260.  
2834 Mexico's second written submission, pa ra. 261.  
2835 Mexico's second written submission, paras.  261-262. (emphasis original)  
2836 Mexico's second written submission, para. 263; response to Panel question No. 91, paras.  98-99. 
2837 Mexico's response to Panel question No. 91, para. 94; second written sub mission, para. 264.  
2838 Mexico's response to Panel question No. 91, para. 96; second written submission, para. 265.  WT/DS524/R  
- 395 - 
  produce a domestic regulation that would prevent the establishment and spread of ASBVd. Mexico 
asserted that, as of the date of its first written submission, there was no regulation in force that held  
producers responsible for  ensuring that marketed avocados were free of ASBVd.2839 Mexico noted 
that there were affidavits from Costa Rican producers corroborating that there was no regulation 
concerning the marketing of avocados in the domestic market.2840 
7.1766.   Mexico submits that the SFE did not consider that zero risk is impossible to achieve, as the 
decrease in the supply of avocados caused by Costa Rica's de facto  ban on imports of fresh avocados 
for consumption from Mexico has led to an increase in  imports from other origins, including countries 
where  ASBVd is also present, such as Peru.2841 
7.1767.   Mexico states  that the measures introduced by the SFE in Resolutions DSFE -003-2018 and 
DSFE -002-2018 would appear to stem from the fact that the ALOP set by Costa  Rica through the 
regulation of fresh avocado fruit is to prevent the introduction of ASBVd through the seeds of fresh 
fruit for consumption. According to Mexico, if Costa Rica had acted in a manner consistent with the 
ALOP set out in the PRAs, it would ha ve implemented measures that prevented  the spread of ASBVd 
in the event of its introduction.2842 
7.1768.   Mexico further submits that an objective assessment of the facts does not suggest that 
fresh avocados for consumption are, by themselves, a probable pathway for the entry, establishment 
and spread of ASBVd.2843 For Mexico, Costa Rica's maximum ALOP is not consistent with an objective 
assessment of the facts , therefore the Panel should infer that maximum ALOP .2844 Mexico adds that 
there is a discrepancy between the facts and Costa Rica 's assertions, mainly with regard to the risk 
posed by fresh avocados for consumption as a proven pathway for the introduction, establishment 
and spread of ASBVd, and Costa Rica 's sta tus as free  of ASBVd.2845 
7.1769.   Mexico asserts that Costa Rica should have determined its ALOP by considering that the 
subject to be regulated is seeds for propagation and not fresh fruit for consumption, and should 
have based its ALOP, as well as its measures, on  that. For Mexico, it is not clear how the "maximum" 
ALOP adopted is consistent with the fact that Costa Rica continues to import fresh avocados for 
consumption from countries that have reported the presence of ASBVd, especially when Costa Rica 
has recogni zed that fruit with ASBVd have been detected in consignments from these countries.2846 
7.1770.   Costa Rica  submits  that its ALOP is to make every reasonable effort to prevent the entry 
of ASBVd into its territory and thus maintain its current ASBVd -free phytosanitary  status.2847 
7.1771.   Costa Rica asserts that the determination of the ALOP is a prerogative of the respondent, 
not of a panel or the Appellate Body, and can be done in qualitative or quantitative terms. Costa  Rica 
argues that its ALOP has been defined qualitatively as the "maximum level of phytosanitary 
protection", and is to prevent as much as possible the entry of ASBVd into Costa Rican territory in 
order to maintain the ASBVd -free phytosanitary status of the country.2848 Costa Rica adds that the 
definition of its AL OP is comparable to the definition of Korea's ALOP in Korea – Radionuclides , in 
which the qualitative component of Korea's ALOP was that radiation exposure levels should be "as 
low as reasonably achievable", and that, similarly, it does not consider that t he qualitative definition 
of its ALOP should be challenged as vague or equivocal.2849 
 
2839 Mexico's first written submission, para. 563.  
2840 Mexico's first written submission, para. 564 ( citing  Affidavit of Jesús Alberto Salas Sanabr ia (2019) , 
(Exhibit  MEX-93); Affidavit of Eduardo Ramírez Castro  (2019) , (Exhibit MEX -94); Affidavit of 
Manrique  Loáiciga  González  (2019) , (Exhibit MEX -95); and Affidavit of Randall Benavides Rivera  (2019) , 
(Exhibit MEX -96)). 
2841 Mexico's first written submission, para. 564.  
2842 Mexico's first written submission, para. 565.  
2843 Mexico's second written submission, para. 264.  
2844 Mexico's second written submission, p. 61.  
2845 Mexico's second written submission, para. 265.  
2846 Mexico's respons e to Panel question No. 91, para. 100.  
2847 Costa Rica's first written submission, para. 5.216.  
2848 Costa Rica's first written submission, para. 5.233.  
2849 Costa Rica's first written submission, para. 5.233 ( citing  Panel  Report , Korea  – Radionuclides , 
para. 7.247).  WT/DS524/R  
- 396 - 
  7.1772.   Costa Rica considers Mexico's argument that the maximum ALOP is not consistent with 
Costa  Rica's failure to produce domestic regulation that prevents  the establishment and spread of 
ASBVd  to be incorrect . Costa Rica points out  that it has adopted domestic  measures that, together 
with the phytosanitary requirements for the importation of avocados, seek to mitigate the risk of 
entry of ASBVd. Costa Rica adds that work is under  way to train producers to implement and obtain  
a certification in good agricultural practices; that Technical Standards for the Certification of Avocado 
(Persea americana  Mill.) Seeds, Buds and Nursery Plants were adopted in October 2017; and that, 
follow ing the recommendation of the risk assessment to regulate the use of seeds of imported 
avocados for consumption for propagation, as at the date of delivery of its first written submission, 
it was in the process of issuing a decree to regulate the use of av ocado ( Persea americana  Mill.) 
seed for propagation, the origin of which is fresh fruit for consumption, imported from countries 
where  ASBVd is presen t.2850 
7.1773.   Costa Rica submits  that the maximum level of protection is not the equivalent of zero risk, 
and that there will never be zero phytosanitary risk in international trade  in plants. Costa Rica asserts 
that the maximum level of protection means taking the necessary measures to minimize  to the 
greatest extent  the risk of entry of the quarantine pest concerned.2851 
7.1774.   Costa Rica notes that Costa Rica's measures with regard to ASBVd are those that minimize 
the risk of entry of the pest, also taking account of the obligation not to restr ict international trade 
more than required.2852 Costa Rica adds that its measures minimize to the greatest extent  possible 
the risk of entry of ASBVd, while allowing the trade in avocados with countries where  ASBVd  is 
presen t to continue . Costa Rica notes th at its phytosanitary requirements and border checks through 
laboratory analysis, together with the regulation prohibiting diversion from intended use, achieve 
the highest possible level of protection, without disrupting international trade.2853 Costa Rica as serts 
that it achieves its ALOP through the imposition of domestic and border measures.2854 
7.1775.   Costa Rica further notes that its ALOP is not based solely on diversion from intended use 
but mainly on the considerations that ASBVd is absent in Costa Rica and that it is a pest of economic 
importance for which control measures do not exist. Costa Rica a sserts that even if the probability 
of entry, establishment and spread was considered low, the risk would continue to be high because 
of the importance of the protected good (status of absence and protection of natural resources), the 
nature of the pest (q uarantine pest without control measures) and Costa Rica 's special 
environmental characteristics.2855 Costa Rica adds that its ALOP also stems from the considerations 
that Costa Rica is a centre of origin for avocados, that there are challenges with  respect t o waste 
management and the cultural practice of seed exchange and sowing (diversion from intended use) 
which, for Costa Rica, increase  the potential entry  of ASBVd and its spread.2856 
7.1776.   The Panel  notes that Costa Rica articulated  its ALOP in its risk assessmen t for ASBVd as 
the "maximum level of phytosanitary protection". Reports ARP -002-2017 and ARP -006-2016, in 
stage  3 on pest risk management, state as follows:  
On the basis of the information arising from the risk analysis, the application of specific 
phytosa nitary measures is recommended. Costa Rica is free of the pest ASBVd and 
should therefore adopt the necessary phytosanitary measures to prevent its entry into 
Costa Rican territory. In th is regard, the measures adopted should achieve the  
maximum level of p hytosanitary protection .2857 
 
2850 Costa Rica's first written submission, para. 5.234 ( citing  Technical standards for seeds (2017), 
(Exhibit  CRI-33); and Draft decree governing the use of avocado seeds (2019), (Exhibit CRI -34)). The Panel 
notes that Costa  Rica adopted the Regulation governing  the use of avocado seed s of 23 September  2019, 
published in Official  Journal No. 196 of 16  October  2019. (See Regulation governing  the use of avocado seed s 
(2019), (Exhibits  MEX-174 and CRI -53)).  
2851 Costa Rica's respon se to Panel question No. 84, para. 1.  
2852 Costa Rica's response to Panel question No. 84, para. 2; response to Panel question No. 86, para. 1.  
2853 Costa Rica's response to Panel question No. 84, para. 2.  
2854 Costa Rica's response to Panel question No. 86, para. 2.  
2855 Costa Rica's response to Panel question No. 89, para. 2.  
2856 Costa Rica's response to Panel question No. 89, para. 3.  
2857 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -84), p. 23. (emphasis added)  WT/DS524/R  
- 397 - 
  7.1777.   As stated above, paragraph 5 of Annex A to the SPS  Agreement  defines the ALOP as "[t]he 
level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary 
measure to protect human, animal or plant life or health within its territory".2858 
7.1778.   As noted by the Appellate Body, WTO Members have the  "prerogative" to set their own 
ALOP.2859 The Appellate Body in Australia – Salmon  noted that neither the DSU nor the 
SPS Agreement  entitled the panel or the Appellate Body to substitute its own reasoning about the 
implied level of protection for that expres sed consistently by the respondent in that case2860, and 
that the respondent had determined its ALOP with "sufficient precision".2861 
7.1779.   This Panel agrees that it is the prerogative of Costa Rica to set the ALOP it deems 
appropriate. In principle, the Panel is no t authorized to substitute its own reasoning for Costa Rica's 
reasoning with respect to the level of protection. However, the Panel also notes that the 
SPS Agreement  tacitly imposes an obligation on Costa Rica to determine its ALOP and to express it 
with s ufficient precision to enable the application of the relevant provisions of the SPS  Agreement . 
7.1780.   As stated above, the Appellate Body in Australia – Salmon  noted that, while a Member is 
not required to set the ALOP in quantitative terms, it cannot establish i ts level of protection with 
such vagueness or equivocation that the application of the relevant provisions of the SPS  Agreement  
becomes impossible.2862 
7.1781.   In this regard, the panel in Australia – Apples  noted that Members should not be allowed 
to hide behind a generically stated ALOP2863; the panel in India – Agricultural Products  considered 
that an ALOP will express a certain threshold that denotes the position of the relevant Member in 
relation to the intensity, extent, or relative amount of protection or risk t hat the Member deems to 
be tolerable or suitable2864; and the Appellate Body in Korea – Radionuclides  reaffirmed that 
Members adopting SPS measures must determine their ALOP with sufficient precision to enable the 
application of the relevant provisions of th e SPS  Agreement .2865 
7.1782.   Furthermore, the Appellate Body noted in India – Agricultural Products , and reiterated in 
Korea – Radionuclides , that typically a panel would be expected to accord weight to the respondent's 
articulation of its ALOP, particularly where t hat ALOP was specified in advance of the adoption of the  
SPS measure, where the ALOP is specified with sufficient precision, and where it has been 
consistently expressed by the responding Member.2866 
7.1783.   As stated above, Costa Rica indicated in its Reports ARP -002-2017 and ARP -006-2016 that 
ASBVd is absent in its territory, that it should therefore adopt the necessary phytosanitary measures 
to prevent its entry into Costa Rican territory, and that its measures should accordingly achieve the 
"maximum level of phytosanitary protection".  
7.1784.   Throughout these proceedi ngs, Costa Rica has clarified that this "maximum level of 
phytosanitary protection" is to make every reasonable effort to prevent, or prevent as much as 
possible, the entry of ASBVd into its territory and thus maintain its current ASBVd -free phytosanitary 
status .2867 Costa Rica has also pointed out  that the maximum level of protection means taking the 
 
2858 The note to para. 5 of Annex A indicates that many Members otherwise refer to this concept as the 
"acceptable level of risk".  
2859 Appellate Body Reports, Korea  – Radionuclides , para. 5.23; India – Agricultural Products , 
para. 5.205; Austra lia – Apples,  para. 342; and Australia  – Salmon,  para. 199.  
2860 Appellate Body Report, Australia – Salmon , para. 199.  
2861 Appellate Body Report, Australia – Salmon , para. 207.  
2862 Appellate Body Report, Australia – Salmon , para. 206. See also Appellate Body Reports, 
Korea  – Radionuclides , para. 5.23 (citing Appellate Body Report, Australia –Apples , para. 343, in turn referring 
to Appellate  Body Reports, Australia – Salmon , para. 206; and US/Canada – Continued Suspension , 
para. 523).  
2863 Panel  Report , Australia – Apples , para. 7.970. See also Panel  Report , Korea  – Radionuclides , 
para. 7.158.  
2864 Panel  Report , India – Agricultural Products , para. 7.562.  
2865 Appellate Body Reports, Korea – Radionuclides , para. 5.23 (citing Appellate  Body Report, 
India  – Agricultural  Products , para. 5.205, in turn referring to Appellate Body Reports, Australia – Apples , 
para.  343; and Australia – Salmon , paras.  205-206).  
2866 Appellate Body Reports, India – Agricultural Products , para. 5.221; and Korea  – Radionuclides , 
para. 5.24 ( citing  Appellate Body Report, India – Agricultural Products , para. 5.221).  
2867 Costa Rica's first written submission, paras.  5.216 and 5.233.  WT/DS524/R  
- 398 - 
  necessary measures to minimize to the greatest extent  the risk of entry of the quarantine pest 
concerned2868, and notes that Costa Rica's measures with regard to ASBVd are those that minimize 
to the greatest extent  the risk of entry of the pest, also taking into account the obligation not to 
restrict international trade more than required.2869 
7.1785.   Mexico states that Costa Rica did not provide sufficient precision as to w hat is meant by 
the "maximum" level of phytosanitary protection2870; and that from the many clarifications of the 
ALOP, it is clear that Costa Rica has adopted a "moving target " strategy, which shows that Costa  Rica 
justified its measures ex post facto .2871 
7.1786.   The Panel observes  that other panels and the Appellate Body have accepted as sufficiently 
precise the following formulations of an ALOP: a level "providing a high level of sanitary and 
phytosanitary protection a imed at reducing risk to a very low level, but not to zero"2872; "a high or 
'very conservative' level of sanitary protection aimed at reducing risk to 'very low levels', while 'not 
… a zero -risk approach'"2873; "levels … as low as reasonably achievable" or exp osure "as low as 
reasonably achievable"2874; "to prevent the introduction or dissemination of foot -and-mouth disease 
within the United  States "2875; "very high or very conservative"2876; or "high or conservative".2877 
7.1787.   The Panel understands that Costa Rica has set a "maximum level of phytosanitary 
protection", as indicated in Reports ARP -002-2017 and ARP -006-2016, which , in Costa Rica's view , 
means making every reasonable effort to prevent the entry of ASBVd into its ter ritory or taking the 
necessary measures to minimize to the greatest extent  the risk of entry of the pest, and thus 
maintain the ASBVd -free phytosanitary status that Costa Rica claims to have.  
7.1788.   In light of all of the foregoing , the Panel considers that Costa  Rica defined its ALOP in 
respect of ASBVd in qualitative terms prior to the adoption of Resolutions DSFE -002-2018 and 
DSFE -003-2018, which contain its phytosanitary requirements for ASBVd, and that this ALOP, 
defined as the "maximum level of phytosanitary  protection", could be considered to be sufficiently 
precise and not expressed in vague or equivocal terms. In particular, the Panel considers that Costa 
Rica's ALOP has been defined with sufficient precision to enable the application of the Articles relat ing 
to the ALOP, namely Articles 5.5 and 5.6 of the SPS  Agreement . 
7.1789.   In addition, the Panel is of the view that Costa Rica's clarifications throughout these  
proceedings regarding its ALOP in respect of ASBVd are consistent with the manner in which Costa 
Rica articulated  its ALOP in Reports ARP -002-2017 and ARP -006-2016. The Panel also notes the 
point made by Costa Rica that, when it comes to quarantine pests , for Costa Rica, measures that 
minimize to the greatest extent  the risk of entry of these pests are al ways adopted, while seeking 
to minimize negative trade effects.2878 The Panel therefore considers that Costa Rica has consistently 
expressed its ALOP.  
7.1790.   Mexico further submits that Costa Rica's maximum ALOP is not consistent with an objective 
assessment of the  facts and that therefore the Panel should infer it.2879 In its first written submission, 
Mexico argued that the adoption of Costa Rica's ALOP was not consistent with Costa Rica's failure to 
produce a domestic regulation that would prevent the establishment and spread of ASBVd.2880 
Mexico notes that there is a di screpancy between the facts and Costa Rica 's assertions, mainly 
 
2868 Costa Rica's response to Panel question No. 84, para. 1.  
2869 Costa Rica's response to Panel question No. 84, para. 2; response to Panel question No. 86, para. 1.  
2870 Mexico's first written submission, para. 562; second written submission, paras.  257 and 259; 
response to Panel question No. 91, paras.  92 and 94.  
2871 Mexico's second  written submission, para. 263; response to Panel question No. 91, paras.  98-99. 
2872 Panel  Report , Australia – Apples , paras.  7.963, 7.1252 and 7.1329.  
2873 Appellate Body Report, Australia – Salmon , paras.  197, 207 and 231.  
2874 Panel  Report , Korea – Radionuclides , para s. 7.162 and 7.172; and Appellate Body Report, 
Korea  – Radionuclides , paras.  5.35 and 5.38.  
2875 Panel  Report , US – Animals , paras.  7.378 and 7.387.  
2876 Panel  Report , India – Agricultural Products , paras.  7.751 and 7.575.  
2877 Panel  Report , Russia – Pigs (EU) , para. 7.752.  
2878 Costa Rica's response to Panel question No. 85, para. 1.  
2879 Mexico's second written submission, p. 61.  
2880 Mexico's first written submission, para. 563.  WT/DS524/R  
- 399 - 
  regarding the risk posed by fresh avocados for consumption as a proven pathway for the 
introduction, establishment and spread of ASBVd, and Costa Rica 's status as free  of ASBVd.2881 
7.1791.   In the Panel 's view, Mexico's arguments that Costa Rica's "maximum" ALOP is not 
consistent with an objective assessment of the facts, and that therefore the Panel should infer it, 
implies that the Panel would substitute its own reasoning for the reasoning expressed consistently  
by Costa Rica regarding the level of protection, which would go beyond the limits of the Panel's task. 
In addition, although the Panel found flaws in Costa Rica's risk assessment, including in its 
determination of absence of ASBVd2882, which forms  part of Costa Rica's reasoning with respect to 
its ALOP and the application thereof, Mexico has failed to explain how these flaws affect the 
determination of Costa Rica's ALOP.  
7.1792.   In light of all of the foregoing , the Panel accepts the ALOP as defined by Cos ta Rica, namely 
as the "maximum level of phytosanitary protection", given that Costa Rica specified this ALOP prior 
to the adoption of the SPS measures, with sufficient precision, and has expressed it consistently . 
7.5.5   Legal standard of Article  5.6 of the SPS  Agreement  
7.1793.   In this section, the Panel will explain how other panels and the Appellate Body have 
interpreted Article  5.6 of the SPS  Agreement . The Panel will be guided by these interpretations to 
the extent that they are relevant to its analysis.  
7.1794.   Article  5.6 of the SPS  Agreement  requires Members to ensure that their SPS measures are 
not more trade -restrictive than required to achieve their appropriate level of sanitary or 
phytosanitary protection, taking into account technical and economic feasibility. The fo otnote to 
Article  5.6 states that for purposes of paragraph 6 of Article  5, a measure is not more 
trade -restrictive than required unless there is another measure, reasonably available taking into 
account technical and economic feasibility, that achieves th e appropriate level of sanitary or 
phytosanitary protection and is significantly less restrictive to trade.  
7.1795.   The Appellate Body in Australia – Apples  considered  that Article  5.6 seeks to ensure that 
appropriate limits are placed on the trade -restrictiveness  of a Member's SPS measure.2883 
7.1796.   In Korea – Radionuclides , the Appellate Body upheld its legal standard under Article  5.6, 
stating  that in order to demonstrate inconsistency of a measure with Article  5.6, a complainant must 
establish that an alternative measure: (i)  is reasonably available taking into account technical and 
economic feasibility; (ii)  achieves the Member 's ALOP; and (iii)  is significantly less restrictive to trade 
than the contested SPS measure.2884 With respect to the burden of p roof, the Appellate Body in  
Japan – Agricultural Products II  noted that it is for the complainant to establish a prima facie  case 
that there is an alternative measure that meets all three elements under Article  5.6.2885 
7.1797.   With respect to this three -pronged test, the Appellate Body in Australia – Salmon  
considered the three elements to be cumulative in the sense that, to establish inconsistency with 
Article  5.6, all of them have to be met.2886 Therefore, according to the Appel late Body, if any of these 
elements is not fulfilled, the measure in dispute would be consistent with Article  5.6.2887 
7.1798.   The panel in Korea – Radionuclides  observed  that, as the three elements of Article  5.6 are 
cumulative, they may be addressed in any order.2888 The same panel noted that in most prior SPS 
 
2881 Mexico's second written submission, para. 265.  
2882 The Panel recalls that the premise that ASBVd is absent in  Costa Rica 's territory has been challenged 
by Mexico. In section 7.4.5.1.3 above, the Panel concluded that the determination of absence of ASBVd 
in Costa  Rica lacks sufficient reliability , and therefore cannot be considered as legitimately scientific.  
2883 Appellate Body Report, Australia  – Apples , para. 341.  
2884 Appellate Body Report, Korea – Radionuclides , para. 5.21 (citing Appellate Body Reports, 
India – Agricultural  Products , para. 5.203; and Australia – Salmon , para. 194). See also Panel  Report , 
US – Poultry (China) , para. 7.331.  
2885 Appellate Body Report, Japan – Agricultural Products II , para. 126. See Panel Report, 
US – Poultry (China) , para. 7.332 (citing Appellate Body Report, Japan – Agricultural Products II , 
para.  126).  
2886 Appellate Body Report, Australia – Salmon , para. 194.  
2887 Appellate Body Report, Australia – Salmon , para. 194.  
2888 Panel  Report , Korea – Radionuclides , para. 7.118.  WT/DS524/R  
- 400 - 
  disputes, the main point of contention between the parties has been whether the measure achieves 
the ALOP, and prior panels have begun their analysis by looking at this element.2889 However, that 
panel began its analysis with the first and third elements, in view of the fact that the respondent 
adduced  that, in the case of one of the measures at issue, the alternative measure proposed by the 
complainant was not significantly less trade -restrictive than its regime.2890 
7.1799.   In the same dispute, the respondent argued that the alternative measure proposed by the 
complainant did not constitute  "another measure" within the meaning of Article  5.6 of the 
SPS Agreement , because Korea was already conducting the proposed tests.2891 The panel considered 
that if the complainant's proposal could be a substitute for the respondent's regime and comply with 
the three requirements of footnote 3 to Article  5.6, this would constitute "another measure" within 
the meaning of Article  5.6.2892 In this sense, the panel stated  that a measure cannot be rejected a 
priori  because it contains some elements of the original measure, but only after a full evaluation of 
all the factors in footnote 3 and Article  5.6.2893 
7.1800.   In short, as indicated  by other panels a nd the Appellate Body, to demonstrate that the SPS 
measure at issue is more trade -restrictive than required, the complainant must prove that there is 
a measure that meets the three cumulative requirements of the note to Article  5.6. That is to say, 
the pro posed alternative measure must be reasonably available taking into account technical and 
economic feasibility, achieve the respondent's ALOP, and be significantly less restrictive to trade 
than the contested SPS measure.  
7.1801.   With respect to the first element o f Article  5.6 of the SPS  Agreement , regarding technical 
and economic feasibility  of the proposed alternatives, the panel in Korea – Radionuclides  referred to 
the panel's statement in India – Agricultural Products  that a panel should assess whether the 
alternative measure would constitute an option reasonably available taking into account technical 
and economic feasibility in the real world, including the risk of incorrect enforcement.2894 The panel 
stated  that the respondent's existing use of a proposed alter native, even if in a different context, 
weighs in favour of a finding of feasibility.2895 
7.1802.   Moreover, according to the panels in Korea – Radionuclides  and India – Agricultural 
Products , the additional administrative burden imposed by an alternative measure doe s not per se  
render the measure infeasible.2896 The panel in India – Agricultural Products  noted that if a WTO 
Member could justify an import ban on the basis that it is less administratively burdensome than an 
alternative measure and therefore the alternati ve measure is not feasible, this would render the 
requirement in Article  5.6 meaningless.2897, 2898 
7.1803.   According to the second element, an alternative measure has to achieve the Member's 
ALOP. The Appellate Body in Australia – Salmon  considered that in order to be able to examine 
whether any of the alternative SPS measures identified would achieve the Member's ALOP, it would 
be necessary to know, first of all, what level of protection could be achieved by each of these 
alternative  SPS measures.2899 In this regard, the Appellate Body noted in subsequent disputes that 
 
2889 Panel Report, Korea – Radionuclides , para. 7.118.  
2890 Panel  Report , Korea – Radionuclides , para. 7.118.  
2891 Panel  Report , Korea – Radionuclides , para. 7.122.  
2892 Panel  Report , Korea – Radionuclides , para. 7.12 7. 
2893 Panel  Report , Korea – Radionuclides , para. 7.127.  
2894 Panel  Report , Korea – Radionuclides , para. 7.144 (citing Panel  Report , India – Agricultural products , 
para. 7.540, in turn referring to Panel  Report s, Japan – Apples (Article 21.5 – US), para. 8.171; and 
Australia  – Apples , para. 7.1334).  
2895 Panel Report , Korea – Radionuclides , para. 7.144 (citing Panel  Report s, India – Agricultural  Products , 
paras.  7.541 -7.542; and Japan – Apples (Article 21.5 – US), para. 8.187).  
2896 Panel  Report , Korea – Radionuclides , para. 7.144 ( citing  Panel  Report , India – Agricultural Products , 
para. 7.543).  
2897 Panel  Report , India – Agricultural Products , para. 7.543.  
2898 The panel in India – Agricultural Products  rejected India's argument that reliance on the exporting 
country's veterinary certificates was not technically and economically feasible because India did not have the 
capacity to handle the volume of imports that would result if it did not restrict imports during an active 
outbreak of the disease in question. (Panel  Report , India – Agricultural  Products , para. 7.543).  
2899 Appellate Body Report, Australia – Salmon , para. 208.  WT/DS524/R  
- 401 - 
  a panel must identify the level of protection of the Member whose SPS measure has been contested 
and the level of protection of the alternative measure proposed by the compla inant.2900 
7.1804.   The Appellate Body in Australia – Apples  explained that, after having identified these two 
levels of protection, a panel will be able to make the requisite comparison between the level of 
protection that would be achieved by the alternative measur e and the importing Member's ALOP, 
and that if the level of protection achieved by the proposed alternative meets or exceeds the ALOP, 
then (assuming that the other two conditions in Article  5.6 are met) the importing Member's SPS 
measure is more trade -restrictive than necessary to achieve its desired level of protection.2901 
7.1805.   In Australia – Apples , the Appellate Body stated  that alternative measures "are mere 
conceptual tools" for the purpose of the Article  5.6 analysis.2902 Consequently, a demonstration that 
an alternative measure meets the three criteria of Article  5.6 suffices to prove that the measure at 
issue is more trade -restrictive than necessary . Yet this does not imply that the importing Member 
must adopt that alternative measure or that the alternativ e measure is the only option that would 
achieve the desired level of protection.2903 
7.1806.   The Appellate Body also noted  that it could not conceive of how a complainant could satisfy 
its burden of demonstrating that its proposed alternative measure would meet the ALOP under 
Article  5.6 without relying on evidence that is scientific in nature.2904 Nevertheless, the Appellate 
Body concluded that a panel's assessment of whether this burden has been met is a matter of legal 
characterization and not a scientific assessment of risk that must conform to the first three 
paragraphs of Article  5.2905 
7.1807.   Regarding the third element of Article  5.6, namely, is significantly less restrictive to trade , 
the panel in Korea – Radionuclides  noted that, as most of the challenged measures in previous cases 
had been import bans, the degree of reduction in trade restrictiveness to achieve the level  of 
"significance" required by the footnote in Article  5.6 had not been dealt with by panels or the 
Appellate Body in the context of SPS disputes.2906 
7.1808.   That panel referred to the Appellate Body's interpretation of the term "significan ce" in the 
context of the  Agreement on Subsidies and Countervailing Measures (SCM  Agreement ), according 
to which the term connotes something that can be characterized as "important, notable or 
consequential".2907 The panel noted that other panels, also in the context of the SCM  Agreement , 
have expressed the view that significance must be determined on a case -by-case basis depending 
on the factual circumstances; should be of sufficient magnitude or degree, seen in the context of 
the particular product at issue, to be able to meaningfu lly affect suppliers; and that panels should 
not depend solely on a given level of numeric significance, as other considerations, including the 
nature of the same market and the product under consideration, may also enter into such an 
assessment, as approp riate in a given case.2908 
 
2900 Appellate Body Reports, Australia – Apples , para. 344; India – Agricultural Products , para. 5.220; 
Korea  – Radionuclides , para. 5.24 ( citing  Appellate Body Reports, Australia – Apples , para. 344; and 
India – Agricultural  Products , para. 5.220).  
2901 Appellate Body Reports, Australia – Apples , para. 344; India – Agricultural Products , para. 5.206; 
and Panel  Report, Korea – Radionuclides , para. 7. 119 ( citing  Appellate Body Report, Australia – Apples , 
paras.  344 and 368).  
2902 Appellate Body Report, Australia – Apples , para. 363. See also Appellate Body Reports, 
Korea  – Radionuclides , para. 5.21; and India – Agricultural Products , para. 5.203.  
2903 Appellate Body Report, Australia – Apples , para. 363. See also Appellate Body Reports, 
Korea  – Radionuclides , para. 5.21 and fn 88; and India – Agricultural Products , para . 5.203.  
2904 Appellate Body Report, Australia – Apples , para. 364.  
2905 Appellate Body Re port, Australia  – Apples , para. 366.  
2906 Panel  Report , Korea – Radionuclides , paras.  7.152 -7.153.  
2907 Panel  Report , Korea – Radionuclides , para. 7.153 ( citing  Appellate Body Report, US – 
Upland  Cotton , para. 426).  
2908 Panel  Report , Korea – Radionuclides , para. 7. 153 ( citing  Panel  Report s, Korea – 
Commercial  Vessels , para. 7.571; Indonesia – Autos , para. 14.254; and US – Upland Cotton , 
paras.  7.1329 -7.1330).  WT/DS524/R  
- 402 - 
  7.5.6   The Panel's analysis  
7.1809.   As mentioned above, the Appellate Body in Korea – Radionuclides  confirmed that, in order 
to demonstrate the inconsistency of a measure with Article  5.6 of the SPS  Agreement , a complainant 
must establish that an  alternative measure: (i)  is reasonably available taking into account technical 
and economic feasibility; (ii)  achieves the Member's ALOP; and (iii)  is significantly less restrictive to 
trade than the contested SPS measure.2909 
7.1810.   Mexico submits that there are alternative measures to those adopted in Resolutions 
DSFE -003-2018 and DSFE -002-2018, and points out that the following measures are reasonably 
available to Costa Rica, considering their technical and economic feasibility: (i)  regulation to prevent 
diversion from intended use of the seed of fresh avocados for consumption as a propagation method 
for new plants; and (ii)  ASBVd symptom -free certification of shipments.2910 Mexico asserts that the 
proposed alternatives achieve Costa Rica's ALOP.2911 
7.1811.   As explai ned above with respect to the three -pronged test for the alternative measures 
proposed by the complainant, the three elements are cumulative in the sense that, to establish 
inconsistency with Article  5.6, all of them have to be met.2912 Consequently, if any of these elements 
is not fulfilled, the measure in dispute would be consistent with Article 5.6.2913 Furthermore, as the 
panel in Korea – Radionuclides  found, since the three elements of Article 5.6 are cumulative, they 
may be addressed in any order; and, gi ven that, in most prior SPS disputes, the main point of 
contention between the parties has been whether the measure achieves the ALOP, prior panels have 
begun their analysis by looking at this element.2914 
7.1812.   This Panel observes that, in this dispute, Costa Ric a considers that, for the first alternative 
measure, the key point is that Mexico has failed to establish that this measure, by itself, achieves 
Costa Rica's ALOP.2915 Costa Rica submits that neither of the two alternatives proposed by Mexico 
achieves the le vel of protection that Costa Rica deems appropriate in this situation.2916 
7.1813.   In the Panel's view, that the alternative measures proposed by Mexico achieve Costa Rica's 
ALOP is a key point of contention in this dispute, so it is appropriate for the Panel to beg in its analysis 
under Article 5.6 with the second element, i.e. whether the alternative measures proposed by Mexico 
achieve Costa Rica's ALOP. Given the cumulative nature of the three criteria in the footnote to 
Article  5.6 of the SPS  Agreement , should the  Panel determine that the alternative measures would 
not achieve Costa Rica's ALOP, it will not have to examine the two other elements in that footnote.  
7.1814.   The Panel will analyse below whether any of the alternative measures proposed by Mexico 
achieve Costa R ica's ALOP.  
7.5.6.1   Whether any of the alternative measures proposed by Mexico achieve Costa Rica's 
ALOP  
7.5.6.1.1   Whether domestic regulation that prevents diversion from intended use 
achieves Costa Rica's ALOP  
7.1815.   Mexico  submits that regulation to prevent diversion from intended use of the seed of fresh 
avocados for consumption as a propagation method for new plants achieves Costa Rica's level of 
phytosanitary protection.2917 
 
2909 Appellate Body Report, Korea – Radionuclides , para. 5.21 (citing Appellate Body Reports, 
India – Agricultural  Products , para. 5.203; and Australia – Salmon , para. 194). See also Panel  Report , 
US – Poultry (China) , para. 7.331.  
2910 Mexico's first written submission, para. 549.  
2911 Mexico's first written submission, para. 582.  
2912 Appellate Body Report, Australia – Salmon , para. 194.  
2913 Appellate Body Report, Australia – Salmon , para. 194.  
2914 Panel  Report, Korea – Radionuclides , para. 7.118.  
2915 Costa Rica's first written submission, para . 5.232.  
2916 Costa Rica's second written submission, para. 3.68.  
2917 Mexico's first written submission, p. 141.  WT/DS524/R  
- 403 - 
  7.1816.   Mexico adduces that Chile's Exempt Resolution No . 8182, as a model alternative measure, 
is consistent with the ALOP established by the SFE by regulating the diversion from intended use of 
seeds of fresh avocados for consumption as the only pathway through which ASBVd may be 
introduced, established and s pread in Costa Rican territory.2918 
7.1817.   Mexico notes that the ALOP of the alternative measure can be determined from the 
experience of measures applied by other Members, particularly Chile, a Member whose territory is 
free of ASBVd; and that the importation of fresh avocado fruit for consumption can be considered 
an acceptable risk without even distinguishing whether the avocados exhibit ASBVd symptoms or 
not, but by preventing the diversion of the avocado seeds for sowing purposes.2919 Mexico state s 
that, while Chile does not quantitatively measure the level of risk that it can accept, it admits that 
there cannot be zero risk. In other words, it is not feasible to claim that no symptomless fruit 
potentially infected with ASBVd enters its territory. Mexico adds that planting seeds from fresh 
avocado fruit is prohibited because Chile correctly identifies that the entry pathway represented by 
fresh avocados for consumption does not merit a trade restriction.2920 
7.1818.   Mexico also asserts that the SFE itself rec ognizes in the PRAs at issue in this dispute that 
the spread of ASBVd is not caused simply by the entry of fresh fruits for consumption, but rather 
that the seeds need to be sowed.2921 Mexico submits that the PRAs identify that it is the diversion 
from inten ded use that can cause ASBVd to spread, thereby risking plant life or health. For Mexico, 
an acceptable level of risk for an area free of ASBVd would be to accept the introduction of fresh 
avocados for human consumption sold in places such as supermarkets or retail stores. Mexico notes 
that, given that not all of Costa Rican territory can be considered as free of ASBVd, the ALOP would 
have to: (i)  be adjusted for specific areas in which it is established with scientific evidence that 
ASBVd is not present; a nd/or (ii)  be much lower than or equal to the level of risk already accepted 
by Chile.2922 
7.1819.   Mexico adds that if the Panel were to determine that the ALOP adopted by Costa Rica is 
based on the premise that all or part of Costa Rican territory is free of ASBVd,  this ALOP could not 
exceed that established by Chile through Exempt Resolution No.  8182. For Mexico, it would have to 
be considered that the acceptable level of risk means accepting the presence of imported fresh 
avocados in Costa Rican territory, inasmuc h as they are intended only for human consumption, and 
the measure consistent with this ALOP would have to be focused on preventing diversion for sowing 
purposes of the seeds of fresh avocados for human consumption.2923 
7.1820.   Mexico argues that the measure establi shed by Chile through Exempt Resolution No.  8182 
is consistent with the ALOP applied by Costa Rica, since there is no basis for Costa Rica to 
substantiate the existence of zero risk or a maximum level of phytosanitary protection with respect 
to the risk as sociated with the entry, establishment and spread of ASBVd through fresh fruit imported 
for consumption.2924 
7.1821.   Mexico considers that, if it had assessed the functioning of the recommendation in the PRA 
to regulate the use for propagation purposes of seeds of a vocados imported for consumption, as well 
as the way in which this alternative measure would reduce the risk of entry, establishment and 
spread of ASBVd in its territory, Costa Rica would have concluded, as Chile does, that this measure 
was sufficient to a ddress the negligible risk of ASBVd being transmitted through a fresh avocado 
imported for consumption.2925 
7.1822.   Mexico also contends that this measure is not complementary, since regulating the 
diversion from intended use of fresh avocados for consumption would be enough to mitigate a risk 
that, in itself, is negligible. Mexico adds that imposing, as complementary measures, the measures 
covered by the Resolutions and the domestic measures on diversion from intended use produces 
absurd and contradictory outcomes. For example, if the ALOP is maximum and ASBVd is unwanted, 
 
2918 Mexico's first written submission, para. 566 (referring to Resolución  8182 EXENTA  8182, 
(Exhibit  MEX-113)). 
2919 Mexico's first written submission, p aras. 567-568. 
2920 Mexico's first written submission, para. 568.  
2921 Mexico's first written submission, para. 569.  
2922 Mexico's first written submission, para. 570.  
2923 Mexico's first written submission, para. 571.  
2924 Mexico's first written submission, para. 572.  
2925 Mexico's opening statement at the first meeting of the Panel, para. 54.  WT/DS524/R  
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  Mexico asks why there would be diversion from intended use if, from the moment of importation, 
the entry of fruits allegedly infected with ASBVd is restricted.2926 
7.1823.   Mexico submits that there is no sci entific evidence to demonstrate that fresh avocado for 
consumption is a pathway for the introduction of ASBVd, but that there is evidence of the low 
prevalence of symptomless avocados exported by Mexico, so the risk of entry through diversion from 
intended  use is negligible or even zero, and the regulation seeking to prevent the diversion from 
intended use of imported avocados as a means of propagation achieves, by itself, Costa Rica's 
ALOP.2927 
7.1824.   Mexico indicates that Costa Rica implemented Decree No.  41995 -MAG in 2019, and that 
this domestic regulation addresses its main concern, i.e. the diversion from intended use of fresh 
avocados imported for consumption. For Mexico, the phytosanitary measures at issue in this dispute 
are therefore more trade -restrictive t han necessary to mitigate the risk associated with the 
introduction, establishment and spread of ASBVd through trade in fresh avocados for 
consumption.2928 
7.1825.   Mexico states that this regulation is similar in content and scope to Exempt Resolution 
No. 8182 adopt ed by Chile, and could ensure Costa Rica's ALOP because it controls the origin of the 
seeds for planting and establishes penalties.2929 
7.1826.   Costa Rica  submits that Mexico has failed to establish that the first alternative measure, 
by itself, achieves Costa Rica' s ALOP.2930 
7.1827.   Costa Rica states that the regulation on diversion from intended use of the seeds is not a 
measure that can replace the phytosanitary import requirements for avocados, since it is a domestic 
measure that has already been considered and adopted by  Costa Rica. Costa Rica indicates that both 
measures are complementary, which is why Mexico's first alternative measure is not a replacement 
for the challenged phytosanitary requirements.2931 
7.1828.   Costa Rica indicates that all the measures that it has adopted are, together, focused on 
preventing as far as possible the entry of ASBVd into Costa Rican territory, in order to maintain the 
country's phytosanitary status as free of ASBVd. According to Costa Rica, the domestic regulation 
that prohibits the use  of imported seeds for sowing avocados is a measure that is complementary 
to the phytosanitary import requirements imposed, and it is not an alternative replacement measure 
because, by itself, it would not achieve Costa Rica's ALOP.2932 
7.1829.   Costa Rica considers that Mexico's arguments, according to which Costa Rican territory 
cannot be considered as free of ASBVd and the ALOP should thus be adjusted and be much lower 
than or equal to that of Chile, should be rejected. Costa Rica states that ASBVd is absent in its  
territory, and that Mexico has failed to prove otherwise. Costa Rica adds that it has the sovereign 
authority to determine the ALOP, completely independent of the ALOP determined by Chile or any 
other country.2933 
7.1830.   Costa Rica submits that the reference to Ch ile's ALOP is irrelevant, and that the assumption 
that all Members whose territory is free of a pest must have the same ALOP ignores the importance 
of the specific conditions of each Member, including the probability of entry of the pest according to 
the p athways of access, the climatic conditions for its establishment and spread, or the economic 
and biological consequences that could arise in each Member State, and it contradicts Members' 
right to adopt the level of protection they deem appropriate.2934 
 
2926 Mexico's response to Panel question No. 92, para. 102.  
2927 Mexico's second written submission, para. 267.  
2928 Mexico's second written submission, para. 268 (citing Regulation governing the use of avocado 
seeds (2019), (Exhibits MEX -174 and CRI -53)). 
2929 Mexico's response to Panel question No. 175, paras.  162-163. 
2930 Costa Rica's first written submission, paras.  5.232 and 5.237.  
2931 Costa Rica's first written submission, para. 5.227; second written submission, para. 3.69.  
2932 Costa Rica's first written submission, para. 5.234.  
2933 Costa Rica's first written submission, para. 5.235.  
2934 Costa Rica's first written submission, p ara. 5.236.  WT/DS524/R  
- 405 - 
  7.1831.   Costa Rica indicates  that the domestic regulation suggested by Mexico already exists, and 
that the 2019 regulation governing the use of avocado seeds implements one of the general 
recommendations in Costa Rica's PRA, and is not significantly different to Chile 's Exempt Resolution 
No. 8182 proposed by Mexico as an alternative measure. Costa Rica notes, however, that such a 
regulation is, by itself, insufficient to achieve its ALOP with respect to the risk of introduction of 
ASBVd, since it does not address the r isks arising from the natural germination of infected seeds, 
which, according to Costa Rica, without border measures to ensure that infected avocados are not 
introduced, would seriously jeopardize the integrity of Costa Rica's phytosanitary status as free of 
the pest.2935 
7.1832.   Costa Rica asserts  that, although diversion from intended use is a risk factor for the 
introduction of the pest, it is not the only one. Costa Rica contends that, in the case of symptomless 
fruit infected with ASBVd, the seed has a very high  ability to transmit ASBVd and, due to Costa  Rica's 
favourable climatic conditions and because the avocado seed remains viable for several days after 
its removal from the fruit, it has been found that the seeds may germinate without human 
assistance. Costa  Rica considers that every seed discarded in fields or household compost, and any 
fruit thrown away or discarded on waste ground, has the potential to germinate and become an 
avocado tree infected with ASBVd, and no regulation prohibiting the intentional d iversion from 
intended use of seeds would be effective against the risk posed by the spontaneous germination of 
seeds as natural waste from avocado fruit.2936 
7.1833.   Costa Rica also submits that, despite the fact that the general ban on sowing seeds of fresh 
avocad os for consumption imported from countries with ASBVd, established in the 2019 regulation 
governing the use of avocado seeds, formally applies to all persons in Costa Rica, no phytosanitary 
authority would reasonably expect consumers to have the same knowl edge of the regulation as 
nursery workers and producers. Costa Rica states that, although it is expected that nursery workers 
and producers are familiar with the regulation and comply with the obligations established therein, 
it is more difficult for consu mers (rural or urban) to always be certain of the origin of the fruit 
consumed or to be aware of the ban on sowing the seed of this fruit. Costa Rica adds that its 
authorities' ability to monitor all consumers' compliance with the regulation is far more li mited than 
that of nursery workers and producers, who are duly registered.2937 Costa Rica states that the 
domestic regulation would not, by itself, fulfil Costa Rica's ALOP, since the obligation would fall 
entirely upon the consumer, and it would be extremel y difficult for the State to verify compliance 
with the regulation.2938 
7.1834.   Costa Rica notes that, while it is not disputed that the 2019 regulation governing the use 
of avocado seeds contributes to reducing the risk of introduction of ASBVd and, therefore, 
comp lements the phytosanitary import requirements for fresh avocados, it cannot be concluded that 
it is an alternative measure that, by itself, achieves Costa Rica's ALOP. In Costa Rica's view, if it 
were to apply only the domestic regulation that prohibits di version from intended use, it would simply 
be a matter of time before ASBVd were introduced into Costa Rican territory, which is why Costa  Rica 
indicates that it has opted to implement, together with the regulation, border measures similar to 
those adopted  by other countries such as New  Zealand , Panama or New Caledonia.2939 
7.1835.   Costa Rica adds that the 2019 regulation governing the use of avocado seeds is a measure 
that was already recommended in Costa Rica's PRA and that was implemented together with other 
measu res, so the domestic regulation prohibiting the use for sowing of seeds of imported avocado 
would, by itself, be insufficient to fulfil Costa Rica's ALOP and, in addition, is not an alternative 
measure within the meaning of Article 5.6 of the SPS  Agreement .2940 
 
2935 Costa Rica's opening statement at the first meeting of the Panel, para. 32 (citing Regulation 
governing the use of avocado seeds (2019), (Exhibits MEX -174 and CRI -53)); response to Panel question 
No. 94, paras. 1 -2; second written submission, para. 3.69 ( citing Regulation governing the use of avocado 
seeds (2019), (Exhibits MEX -174 and CRI -53)). 
2936 Costa Rica's second written submission, para. 3.70; opening statement at the first meeting of 
the Panel, para. 32; response to Panel question No. 94.  
2937 Costa Ric a's response to Panel question No. 93; second written submission, para.  3.71. 
2938 Costa Rica's response to Panel question No. 175, para. 1.  
2939 Costa Rica's second written submission, para. 3.72.  
2940 Costa Rica's response to Panel question No. 175, para. 2.  WT/DS524/R  
- 406 - 
  7.1836.   The Panel  will examine below whether the first alternative measure proposed by Mexico, 
i.e. the domestic regulation that prevents diversion from intended use, achieves Costa Rica's ALOP.  
7.1837.   As explained, in order to examine whether the complainant has ide ntified an alternative 
measure that achieves the ALOP of the respondent, a panel must identify the level of protection of 
the Member whose SPS measure is challenged and the level of protection of the alternative measure 
proposed by the complainant.2941 Once these two elements have been identified, a panel must 
compare them, and the second element required for an alternative measure to comply with 
Article  5.6 is only demonstrated if the level of protection achieved by the alternative measure meets 
or exc eeds the Member's ALOP.2942 
7.1838.   Accordingly, in this dispute, the Panel must identify Costa Rica's level of protection and the 
level of protection of the alternative measure proposed by Mexico and, once these two elements 
have been identified, the Panel must com pare them to determine whether the level of protection 
achieved by the alternative measure meets or exceeds Costa Rica's ALOP.  
7.1839.   With regard to the domestic regulation proposed by Mexico, the Panel observes that, in 
2019, Costa Rica issued the regulation gov erning the use of avocado seeds, to which both parties 
refer.2943 Costa Rica indicates that this regulation is not, therefore, an alternative measure within 
the meaning of Article 5.6 of the SPS  Agreement .2944 The parties agree on the similarity between 
Costa Rica's regulation and Exempt Resolution No.  8182 adopted by Chile, which Mexico presents 
as a model of the first alternative measure that it proposes.2945 
7.1840.   As regards whether a measure that is already in place can constitute an alternative 
measure, as explain ed, the panel in Korea – Radionuclides  considered that if the complainant's 
proposal could substitute for the respondent's regime and fulfil the three requirements in footnote 3 
to Article 5.6 then it will be "another measure" within the meaning of this Ar ticle.2946 In this sense, 
the panel indicated that a measure cannot be rejected a priori  because it contains some elements of 
the original measure, but only after a full evaluation of all the factors in footnote 3 and Article 5.6.2947 
7.1841.   In light of the foregoing, although the domestic regulation on the use for propagation 
purposes of seeds of avocados imported for consumption was recommended in Costa Rica's 
reports2948 and subsequently issued, this measure cannot be rejected a priori , but there must be an 
evaluation of whether it fulfils the criteria in footnote 3 to Article 5.6 of the SPS  Agreement . 
Consequently, and considering that Costa Rica has already issued a domestic regulation that seeks 
to prevent diversion from intended use, as Mexico's proposed alternative measure does, the Panel's 
analysis will consist of a determination of whether this domestic regulation on diversion from 
intended use is, by itself, sufficient to achieve Costa Rica's "maximum" ALOP.  
7.1842.   Before beginning the analysis of whether the  domestic regulation on diversion from 
intended use is, by itself, sufficient to achieve Costa Rica's "maximum" ALOP, the Panel notes that 
Report ARP -002-2017 identifies fresh avocados ( Persea americana  Mill.) for consumption from 
Mexico as the pathway und er analysis2949, and that Report ARP -006-2016 also includes the analysis 
 
2941 Appellate Body Reports, Australia – Apples , para. 344; India – Agricultural Products , para.  5.220; 
Korea  – Radionuclides , para. 5.24 (citing Appellate Body Reports, Australia – Apples , para. 344; and India – 
Agricultural Products , para. 5.220).  
2942 Appellate Body Reports, Australia – Apples , para. 344; India – Agricultural Products , para. 5.206; 
and Panel  Report , Korea – Radionuclides , para. 7.119 (citing Appellate Body Report, Australia – Apples , 
paras.  344 and 368).  
2943 Regulation governing the use of avocado seeds (2019), (Exhibits MEX -174 and CRI -53). 
2944 Costa Rica's response to Panel question No. 175, para. 2.  
2945 Mexico states  that this regulation is similar in content and scope to Exempt Resolution No. 8182 
adopted by Chile. (Mexi co's response to Panel question No. 175, paras.  162-163). Costa Rica indicates that 
the 2019 regulation governing the use of avocado seeds is not significantly different from Chile's Exempt 
Resolution No.  8182, which Mexico proposes as an alternative measu re. (Costa Rica's opening statement at the 
first meeting of the Panel, para. 32 (citing Regulation governing the use of avocado seeds (2019), 
(Exhibits  MEX-174 and CRI -53)); response to Panel question No. 94, para. 1).  
2946 Panel  Report , Korea – Radionuclides , para. 7.127. 
2947 Panel  Report, Korea – Radionuclides , para. 7.127.  
2948 ARP-002-2017, (Exhibit MEX -84), p. 43; ARP -006-2016, (Exhibit MEX -85), p. 24.  
2949 ARP-002-2017, (Exhibit MEX -84), pp. 3 and 15.  WT/DS524/R  
- 407 - 
  of the pathway of fresh avocados for consumption from countries where the pest, Avocado sunblotch 
viroid (ASBVd), is present.2950 
7.1843.   As noted in section 7.5.4 above, it is Costa Rica's prerogative to set the ALOP that it deems 
appropriate, and the Panel understands that Costa Rica has set a "maximum level of phytosani tary 
protection", which, in Costa Rica's view, means making every reasonable effort to prevent the entry 
of ASBVd into its territory or taking the necessary measures that minimize to the greatest extent 
the risk of entry of the pest, and thus maintain the ASBVd -free phytosanitary status that Costa  Rica 
claims to have. Costa Rica has accepted that a maximum level of protection is not equivalent to zero 
risk.2951 
7.1844.   Based on Costa Rica's clarifications, the Panel notes that the country's "maximum" ALOP is 
focused on the maximum prevention of the entry of ASBVd into its territory, relying upon the premise 
maintained by Costa Rica that ASBVd is absent in its territory.2952 Considering that ASBVd is present 
in symptomless fruits and that specific tests are needed to det ect it2953, Costa Rica has implemented 
the phytosanitary requirements at issue in this dispute2954 and the border checks through laboratory 
testing. In the Panel's view, these measures are aimed at preventing the entry of ASBVd into 
Costa  Rica under the premis e that it is absent in its territory.  
7.1845.   Mexico states that, given that not all Costa Rican territory can be considered as free of 
ASBVd, the ALOP would have to: (i)  be adjusted for specific areas in which it is established with 
scientific evidence that ASBVd  is not present; and/or (ii)  be much lower than or equal to the level 
of risk already accepted by Chile.2955 
7.1846.   The Panel notes that the premise that ASBVd is absent from Costa Rica's territory has been 
questioned by Mexico throughout the dispute. In section 7.4.5.1.3  above, the Panel concluded that 
the determination of the absence of ASBVd from Costa Rica lacks sufficient reliab ility and, therefore, 
cannot be considered as legitimately scientific.  
7.1847.   The Panel is of the opinion that the lack of a legitimately scientific determination of Costa 
Rica's phytosanitary status with respect to ASBVd complicates Mexico's burden of finding an 
alternative measure that could achieve Costa Rica's ALOP, as well as the Panel's analysis of the 
matter, because the presence or absence of ASBVd in Costa Rica could have a bearing on the issue 
of whether an alternative measure is sufficient to achieve Costa R ica's ALOP. However, the burden 
of proof in relation to such an alternative measure falls upon Mexico, and Mexico must demonstrate 
that the alternative measure achieves Costa Rica's ALOP. If Mexico considered that, in order to 
evaluate whether the alternat ive measure achieves Costa Rica's ALOP, the Panel should have taken 
into account in its analysis that ASBVd is present in Costa Rica, Mexico should have demonstrated 
that this is the case, which it failed to do.  
7.1848.   Mexico also notes that if the Panel were to determine that the ALOP adopted by Costa Rica 
is based on the premise that all or part of Costa Rican territory is free of ASBVd, this ALOP could not 
exceed that established by Chile through Exempt Resolution No.  8182. For Mexico, it would have to 
be consi dered that the acceptable level of risk means accepting the presence of imported fresh 
avocados in Costa Rican territory, inasmuch as they are intended only for human consumption.2956 
7.1849.   The Panel reiterates that it is Costa Rica's prerogative to set its ALOP, and Mexico appears 
to suggest with its arguments that Costa Rica should modify its level of acceptable risk, that is to 
say, its ALOP. The Panel considers that Costa Rica has the right to set the ALOP that it deems 
appropriate and to adopt SPS measures to achieve it, provided that these measures are not 
inconsistent with the SPS  Agreement . The issue before the Panel is not whether Costa Rica's ALOP 
 
2950 ARP-006-2016, (Exhibit MEX -85), pp. 3 and 14.  
2951 Costa Rica's response to Panel question No. 84, para. 1.  
2952 See Costa Rica's first written submission, paras.  5.216 and 5.233.  
2953 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), p. 23.  
2954 In other words, the ASBVd -free phytosanitary ce rtificate or the ASBVd -free place of production 
certificate or a systems approach.  
2955 Mexico's first written submission, para. 570.  
2956 Mexico's first written submission, para. 571.  WT/DS524/R  
- 408 - 
  should be different, but rather, whether the measure proposed by Mexico as an alternative would 
achieve the AL OP established by Costa Rica.  
7.1850.   Mexico also states that there is no scientific evidence to demonstrate that fresh avocados 
for consumption are a pathway for the introduction of ASBVd, that the risk of entry through diversion 
from intended use is negligible o r even zero, and that the regulation seeking to prevent diversion 
from intended use of imported avocados as a means of propagation achieves, by itself, Costa Rica's 
ALOP.2957 
7.1851.   The expert Robert Griffin points out that it is not reasonable to conclude that the re is no 
risk of entry and establishment because there is a demonstrated pathway with a biological 
probability.2958 
7.1852.   In section 7.4.5.3.4.1  above, the Panel has found f laws in Costa Rica's risk assessment that 
had an impact on the high risk of entry rating. The Panel notes that these flaws may mean that the 
risk of entry of fresh fruits for consumption potentially infected with ASBVd is lower than that 
indicated in Costa  Rica's risk assessment, although fresh fruit for consumption is a pathway with 
biological probability.  
7.1853.   The Panel is of the opinion that the lack of a risk assessment consistent with the provisions 
of the SPS  Agreement  complicates Mexico's burden of findin g an alternative measure that could 
achieve Costa Rica's ALOP, as well as the Panel's analysis of the matter, because the risk of entry 
could have a bearing on the question of whether an alternative measure is sufficient to achieve Costa 
Rica's ALOP. Howev er, the burden of proof in relation to such an alternative measure falls upon 
Mexico, and Mexico must demonstrate that the alternative measure achieves Costa Rica's ALOP. 
Mexico's argument suggests that, when assessing whether the alternative measure achie ves Costa 
Rica's ALOP, the Panel should have taken into account in its analysis that the risk of entry of ASBVd 
is negligible or zero. However, the Panel recalls that, as noted in paragraph 7.1252 above, its task 
is not to impose a definitive scientific co nclusion with respect to the likelihood of entry, establishment 
and spread, or with respect to the associated biological consequences, as suggested by Mexico.  
7.1854.   Mexico contends that the proposed alternative is not a complementary measure, since 
regulating di version from intended use of fresh avocados for consumption would be enough to 
mitigate a risk that, in itself, is negligible.2959 Mexico also asserts that the SFE itself recognizes in 
the PRAs at issue in this dispute that the spread of ASBVd is not caused simply by the entry of fresh 
fruits for consumption, but rather that the seeds need to be sowed.2960 
7.1855.   For its part, Costa Rica indicates that all the measures that it has adopted are, together, 
focused on preventing as far as possible the entry of ASBVd into Costa Rican territory, in order to 
maintain the country's ASBVd -free phytosanitary status, and that the domestic regulation that 
prohibits the use of imported seeds for sowing avocados is a measure that is complementary to the 
phytosanitary import req uirements imposed.2961 
7.1856.   The experts Fernando Pliego Alfaro and Ricardo Flores Pedauyé express agree ment with 
Costa Rica's statement that the phytosanitary requirements and the domestic regulation are 
complementary measures.2962 The expert Robert Griffin is also  of the view that they could be 
considered complementary measures, and states that the adoption of domestic measures and the 
adoption of phytosanitary border requirements are not mutually exclusive in terms of risk because 
they are both used for mitigating  the risk, but in terms of implementation they are independent.2963 
7.1857.   In light of the foregoing, the Panel considers that Costa Rica's domestic and border 
measures are aimed at  contribut ing jointly to preventing the risk of entry, establishment and spread 
of ASBVd in Costa Rica, under the premise that ASBVd is absent in its territory and based on the 
 
2957 Mexico's second written submission, para. 267.  
2958 Robert Griffin's response to Panel question No. 52 for the experts.  
2959 Mexico's response to Panel question No. 92, para. 102.  
2960 Mexico's first written submission, para. 569.  
2961 Costa Rica's first written submission, para. 5.234.  
2962 Responses of Fernando Pliego Alfaro and Ricardo Flore s Pedauyé to Panel question No.  116 for 
the experts.  
2963 Robert Griffin, transcript of the Panel's meeting with the parties and the experts, day 4, p. 18.  WT/DS524/R  
- 409 - 
  high final risk calculated for the entry, establishment and spread of ASBVd and its associat ed 
biological and economic consequences, which Costa Rica maintains exists. The Panel notes that the 
domestic regulation seeking to prevent diversion from intended use addresses the concern regarding 
the establishment and spread of ASBVd through the pathwa y of fresh avocados imported for 
consumption, and the phytosanitary requirements address the risk of entry through the importation 
of potentially infected fruit.  
7.1858.   Costa Rica submits that it is expected that nursery workers and producers are familiar with 
the regulation governing the use of avocado seeds and that they comply with the obligations 
established therein, but that it is more difficult for consumers (rural or urban) to always be certain 
of the origin of the fruit consumed, or to be aware of the ban on sowing the seed of this consumed 
fruit.2964 Costa Rica states that the domestic regulation would not, by itself, fulfil its ALOP, since the 
obligation would fall entirely upon the consumer, and it would be extremely difficult for the State to 
verify compl iance with the regulation.2965 
7.1859.   The expert Robert Griffin points out that the exporting country should consider measures 
it can implement to reduce or eliminate the risks associated with deviation, but that, since diversion 
occurs in the importing country, it  is outside the authority of the exporting country to impose 
measures following entry of the product, and that post -entry measures are the responsibility of the 
importing country.2966 
7.1860.   Taking the foregoing into account, in the view of this Panel, the regulati on on diversion 
from intended use cannot be ruled out on the grounds that not all persons would be aware of it, that 
the obligation would fall entirely upon the consumer, or that it would be extremely difficult for the 
State to verify compliance with the r egulation.  
7.1861.   The Panel considers that, depending on the status of ASBVd in Costa Rica, the risk of entry 
of ASBVd into the country and the occurrence and magnitude of diversion from intended use and 
spontaneous germination in Costa Rica, in relation to which  there is uncertainty due to the flaws in 
Costa Rica's risk assessment, the regulation on diversion from intended use may or may not be 
sufficient to prevent the diversion from intended use of infected seeds that could have entered into 
Costa Rica if there  were no border measures, thereby preventing the introduction and spread of 
ASBVd in Costa Rica.  
7.1862.   In light of the foregoing and in this Panel's view, in the particular circumstances of this 
case, there are difficulties in conducting its examination consisti ng of the comparison between the 
ALOP established by Costa Rica and the ALOP of the domestic regulation on diversion from intended 
use proposed by Mexico as an alternative measure. For the Panel, although Costa Rica's ALOP has 
been specified with sufficien t precision, it is difficult to determine whether the domestic regulation 
on diversion from intended use would, by itself, achieve Costa Rica's ALOP, given the flaws found by 
the Panel in the assessment of this risk, and given its conclusion that the deter mination of the 
absence of ASBVd from Costa Rica, which the country includes as a premise for its ALOP, is not 
legitimately scientific.  
7.1863.   However, the Panel reiterates that Mexico bears the burden of demonstrating that the 
alternative measure achieves Costa Rica's ALOP, and Mexico has limited its arguments to pointing 
out that Costa Rica should modify its acceptable level of risk, i.e. its ALOP; that ASBVd is present in 
Costa Rica; and that the risk of entry is negligible or zero. As has been mentioned, Costa  Rica has 
the right to set its own ALOP, Mexico has failed to demonstrate that ASBVd is present in Costa Rica, 
and it is not the Panel's task to impose a definitive scientific conclusion with respect to the likelihood 
of entry, establishment and spread, or  with respect to the associated biological consequences, as 
suggested by Mexico.  
7.1864.   In view of the foregoing, in the particular circumstances of this case, the Panel is of the 
opinion that Mexico has failed to demonstrate that the phytosanitary requirements t ogether with the 
border checks and the regulation governing the use of avocado seeds are alternative measures, or 
 
2964 Costa Rica's response to Panel question No. 93, para. 6; second written submission, para. 3.71.  
2965 Costa Rica's response to Panel question No. 175, para. 1.  
2966 Robert Griffin's response to Panel question No. 95 for the experts.  WT/DS524/R  
- 410 - 
  that a domestic regulation such as Costa Rica's regulation, by itself, achieves a level of protection 
that is at least equivalent to Costa Ric a's maximum ALOP.  
7.1865.   The Panel therefore finds that Mexico has failed to demonstrate that the first alternative 
proposed, consisting of the domestic regulation that prevents diversion from intended use, achieves, 
by itself, Costa Rica's ALOP.  
7.5.6.1.2   Whether the ASBV d symptom -free certification of shipments achieves Costa 
Rica's ALOP  
7.1866.   Mexico  submits that the ASBVd symptom -free certification of shipments achieves Costa 
Rica's level of protection.2967 
7.1867.   Mexico indicates that, considering that Mexico and Costa Rica traded in the product at issue 
in the dispute for over 20 years, and that Costa Rica never detected or reported a single consignment 
with symptoms of ASBVd and its disease, it can be asserted that the symptom -free certification of 
shipments would achieve the ALOP so ught by Costa Rica.2968 
7.1868.   Mexico asserts that assuming, for the sake of the argument, that Costa Rica's assertion on 
the alleged absence of ASBVd in its territory were true, this would mean that the risk from the 
importation of fresh fruits for consumption and  their diversion from intended use has been minimal, 
if not zero. For Mexico, this means that trade could be re -established merely through the certification 
and shipment of  ASBVd symptom -free fruit, as used to occur before Costa Rica imposed its restrictiv e 
measures.2969 
7.1869.   Mexico adds that the ASBVd symptom -free certification of shipments helps to almost 
completely mitigate the alleged risk posed by trade in fresh avocados for consumption as a possible 
pathway for the entry, establishment and spread of ASBVd.2970 For Mexico, if it is considered that, 
within a full consignment of avocados for export, it is possible to find healthy, symptomatic and 
symptomless fruit, the symptom -free certification of shipments lowers the risk of entry, 
establishment and spread of AS BVd by reducing the proportion of infected fruit in a consignment, 
even in the unlikely event that a pit of these fruits is used as propagati on material, germinates and 
produces infected fruit.2971 
7.1870.   Mexico notes that the ASBVd symptom -free certification of shipments seeks to address 
Costa Rica's concern and manage the risk associated with avocados showing symptoms of ASBVd 
by preventing the presence of this type of fruit in the consignments from Mexico. Mexico adds that 
the sampling survey o f consignments carried out by the Mexican industry proved that the risk 
associated with symptomless avocados is negligible, if not zero, which is due in large part to the 
certification and inspection programmes for orchards, transporters and packing facili ties specialized 
in the export of fresh fruit, which have an impact on the safety, health and quality of the exported 
fruit. According to Mexico, the symptom -free certification of shipments therefore satisfies Costa 
Rica's ALOP.2972 
7.1871.   Costa Rica  submits that M exico has failed to establish that the second alternative measure 
(the ASBVd symptom -free certification of shipments) is an alternative that achieves Costa Rica's 
ALOP.2973 
 
2967 Mexico's first written sub mission, p. 142.  
2968 Mexico's first written submission, para. 573.  
2969 Mexico's first written submission, para. 574.  
2970 Mexico's response to Panel question No. 95, para. 104.  
2971 Mexico's response to Panel question No. 95, para. 105.  
2972 Mexico's second written sub mission, para. 266 (citing APEAM, Preliminary report of sampling survey 
of consignments (2020), (Exhibit MEX -223)) and para. 269.  
2973 Costa Rica's first written submission, para. 5.247.  WT/DS524/R  
- 411 - 
  7.1872.   Costa Rica indicates that the ASBVd symptom -free certification of shipments would not  
achieve its ALOP2974 because it is a measure that, by definition, is not fit for managing the risk posed 
by symptomless avocados infected with ASBVd.2975 
7.1873.   Costa Rica asserts that ASBVd often causes no symptoms in the fruit, which means that, 
even if post-harvest visual inspections are carried out and it is ensured that no symptomatic fruits 
are exported, the fruits infected with ASBVd that do not exhibit symptoms will continue to be present 
in shipments. Costa Rica adds that the infection rate in the seeds obtained from symptomless trees 
and fruit is 100%, while it is only a maximum of 5% in those from symptomatic trees. For Costa 
Rica, this proves that merely certifying and shipping ASBVd symptom -free fruit would be insufficient 
to achieve its ALOP.2976 
7.1874.   Costa Rica states that Mexico's second alternative is a simple quality standard that Mexico 
already applies to its exports, which is ultimately the same as not having any phytosanitary 
measures and leaves Costa Rica totally exposed to the risk of ASBVd be ing introduced into its 
territory through symptomless fruit. For Costa Rica, it is evident that avocados with blotches or 
cracks are not of the quality required for sale and, therefore, are discarded in Mexico prior to 
exportation, but it is specifically t he symptomless avocados that are of concern to the Costa Rican 
phytosanitary authority. Costa Rica contends that, faced with the risk posed by these avocados, 
symptom -free certification is useless and in no way achieves the country's ALOP.2977 
7.1875.   Costa Rica als o states that the need to impose and maintain phytosanitary requirements 
according to which the exporting country certifies that the shipments are ASBVd -free (or come from 
an ASBVd -free place of production), and Costa Rica verifies compliance with this req uirement upon 
importation, as opposed to certifying that the shipment is symptom -free, has been confirmed in 
practice, since Costa Rica has detected the presence of ASBVd in a number of consignments of 
avocados from countries that fulfil the requirement fo r the ASBVd -free certification of shipments, 
such as Peru.2978 
7.1876.   The Panel  will examine below whether the second alternative proposed by Mexico, i.e. the 
ASBVd symptom -free certification of shipments, achieves Costa Rica's ALOP.  
7.1877.   As indicated above, to that end , the Panel must identify Costa Rica's level of protection and 
the level of protection of the alternative measure proposed by Mexico; and, once these two elements 
have been identified, the Panel must compare them to determine whether the level of protectio n 
achieved by the alternative measure meets or exceeds Costa Rica's ALOP.  
7.1878.   The Panel reiterates its understanding that Costa Rica has set a "maximum level of 
phytosanitary protection", which, in Costa Rica's view, means making every reasonable effort to 
prevent the entry of ASBVd into its territory or taking the necessary measures that minimize to the 
greatest extent the risk of entry of the pest, and thus maintain the ASBVd -free phytosanitary status 
that Costa Rica claims to have.  
7.1879.   The Panel notes that sympt omless fruit seem to be Costa Rica's main concern, since Costa 
Rica itself states that it is specifically symptomless avocados that are of concern to the Costa Rican 
phytosanitary authority.2979 Moreover, Reports ARP -002-2017 and ARP -006-2016 indicate that 
inspections carried out at entry points are not considered sufficient to ensure phytosanitary security, 
 
2974 Costa Rica's opening statement at the first meeting of the Panel, para . 33. 
2975 Costa Rica's second written submission, para. 3.73.  
2976 Costa Rica's first written submission, para. 5.248 (citing Cambrón Crisantos (2011),  
(Exhibit CRI -10), p. 17); opening statement at the first meeting of the Panel, para. 33 (citing 
Cambrón  Crisantos (2011), (Exhibit  CRI-10), p. 17); second written submission, para. 3.73 (citing Hadidi  et al. 
(2003), (Exhibit CRI -121); and Ochoa Ascencio (2013), (Exhibit CRI -128)). 
2977 Costa Rica's second written submission, para. 3.73.  
2978 Costa Rica's first written  submission, para. 5.249 (citing Servicio Fitosanitario del Estado del 
Ministerio de Agricultura y Ganadería de Costa Rica , "Formularios de notificaciones de incumplimiento de 
requisitos fitosanitarios", NR -CIN-PO-03_F-01, del 16 de julio de 2018 al 11 de julio de 2019,  
(Exhibit CRI -40)). 
2979 Costa Rica's second written submission, para. 3.73.  WT/DS524/R  
- 412 - 
  given that this viroid in particular is asymptomatic in fruits and that specific tests are needed to 
detect it.2980 
7.1880.   For Mexico, if it is considered that, w ithin a full consignment of avocados for export, it is 
possible to find healthy, symptomatic and symptomless fruit, the symptom -free certification of 
shipments lowers the risk of entry, establishment and spread of ASBVd by reducing the proportion 
of infect ed fruit in a consignment.2981 Mexico adds that the ASBVd symptom -free certification of 
shipments seeks to address Costa Rica's concern and manage the risk associated with avocados 
showing symptoms of ASBVd by preventing the presence of this type of fruit in  consignments from 
Mexico.2982 
7.1881.   The expert Fernando Pliego Alfaro is of the view that measures based on observing 
symptoms are insufficient, because the symptomatic fruit is not of exportable quality, and the 
problem lies in the symptomless fruits, which are also those that most transmit the disease because 
the majority of the seeds of symptomless fruit are infected.2983 The expert Robert Griffin agrees with 
Mr Pliego Alfaro, and adds that it is not logical to base measures on detection of symptoms if 
symptoms a re not detectable, and it is not logical to use inspection to detect fruit that is not 
symptomatic.2984 
7.1882.   In the Panel's view, the symptom -free certification of shipments involves the visual 
inspection of the shipment to verify the absence of ASBVd symptoms in  the avocado fruit in that 
shipment. The Panel agrees that such an inspection of the shipment would eliminate the 
symptomatic fruit and protect against the risk of entry of ASBVd, which could be present in  
symptomatic form. However, Costa Rica's main conce rn is the entry of symptomless fruits.  
7.1883.   Mexico itself does not dispute the existence of an asymptomatic strain of ASBVd. As 
described in section 2.3.2.2  above, there are at least three variants of ASBVd, categorized according 
to the symptoms they produce: ASBVd -B (which produces bleaching); ASBVd -V (which produces 
variegation) and ASBVd -Sc (which does not produce visible symptoms).2985 Diagnosis based on 
symptoms i s not reliable, so other sensitive diagnostic techniques are necessary to determine the 
health status of the tree.2986 
7.1884.   Given that some avocados infected with ASBVd do not show visible symptoms and 
molecular techniques are required to detect ASBVd, the ASBVd symptom -free certification of 
shipments through visual inspection does not allow for symptomless fruits to be detected and 
discarded.  
7.1885.   The Panel therefore considers that a simple visual inspection cannot, by itself, address the 
full risk of concern to  Costa Rica, given the asymptomatic nature of ASBVd.  
7.1886.   As part of its arguments, Mexico reiterates  its argument  that trade in avocados took place 
between Mexico and Costa Rica for over 20 years without a single consignment with symptoms of 
ASBVd and its dise ase being detected.2987 Mexico adds that the sampling survey of consignments 
carried out by the Mexican industry proved that the risk associated with symptomless avocados is 
negligible, if not zero, which is due in large part to the certification and inspect ion programmes for 
orchards, transporters and packing facilities specialized in the export of fresh fruit, which have an 
impact on the safety, health and quality of the exported fruit.2988 
7.1887.   In this connection, Mexico submits the Preliminary report of sampling  survey of 
consignments (2020) by the Association of Mexican avocado producers, packers and exporters 
 
2980 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), p. 23.  
2981 Mexico's response to Panel question No. 95, para. 105.  
2982 Mexico's second written submission, para. 269.  
2983 Fernando Pliego Alfaro, transcript of the Panel's meeting with the parties and the experts, day 1, 
p. 38. 
2984 Robert Griffin, transcript of the Panel's  meeting with the parties and the experts, day 1, pp. 38 -39. 
2985 Semancik and Szychowski (1994), (Exhibit MEX -52), p. 1543; and Ncango et al. (2014), 
(Exhibit  CRI-8), p. 69 . 
2986 Saucedo Carabez et al. (2019), (Exhibit MEX -175), p. 8.  
2987 Mexico's first written submission, para. 573.  
2988 Mexico's second written submission, para. 266 (citing APEAM, Preliminary report of sampling survey 
of consignments (2020),  (Exhibit MEX -223)) and  para. 269.  WT/DS524/R  
- 413 - 
  (APEAM)2989 and, subsequently, the Final report of sampling survey of consignments (2020).2990 The 
final report indicates that the sampling was carried out on  an exceptional basis on fruit for 
consumption that had already undergone the selection process for fruits for export. The report 
indicates that a total of 100 samples were taken from the crates of fresh fruit free of symptoms 
similar to those of ASBVd, an d that the preliminary results indicate that, of the 100 samples 
analysed, none tested positive for ASBVd. It is also stated that, in the orchards, the producers 
identify and remove trees suspected of having any disease, the indirect effect of which is tha t the 
fruit arriving at the packing facilities comes mainly from healthy trees.2991 
7.1888.   The Panel does not consider that the sampling of 100 avocados carried out by APEAM and 
Mexico's unsubstantiated claim that trees suspected of having any disease are removed f rom 
orchards prove that the risk associated with symptomless avocados is negligible or zero, or that the 
consignment checks to ensure that it is symptom -free are sufficient to achieve the protection implied 
by Costa Rica's maximum ALOP.  
7.1889.   Bearing in mind tha t the ALOP represents the level of risk acceptable to the Member, that 
the objective sought by the application of Costa Rica's ALOP is to protect as much as possible against 
the entry of ASBVd, and that visual inspections do not detect the asymptomatic str ain of ASBVd, in 
the circumstances of this case, the ASBVd symptom -free certification of shipments could not be an 
alternative to Costa Rica's phytosanitary measures.  
7.1890.   In light of the foregoing, the Panel considers that Mexico has failed to demonstrate that  the 
ASBVd symptom -free certification of shipments achieves, by itself, a level of protection that is at 
least equivalent to Costa Rica's maximum ALOP, in accordance with which Costa Rica applies its 
phytosanitary measures contained in Resolutions DSFE -002-2018 and DSFE -003-2018.  
7.1891.   The Panel thus finds that Mexico has failed to demonstrate that the second alternative 
measure proposed, consisting of the ASBVd symptom -free certification of shipments, achieves, by 
itself, Costa Rica's ALOP.  
7.5.6.2   Conclusion on whether  any of the alternative measures proposed by Mexico 
achieve Costa Rica's ALOP  
7.1892.   The Panel concludes that Mexico has failed to demonstrate that the first alternative 
measure, consisting of the domestic regulation that prevents diversion from intended use, or the 
second alternative measure, consisting of the ASBVd symptom -free certification of shipments, by 
themselves, achieve Costa Rica's ALOP.  
7.1893.   Since the Panel has concluded that Mexico has failed to demonstrate that either of the two 
alternative measures propo sed achieve Costa Rica's ALOP, there would be no need to assess whether 
these alternative measures are also reasonably available taking into account technical and economic 
feasibility, or whether they are significantly less restrictive to trade than the ph ytosanitary 
requirements set forth in Resolutions DSFE -003-2018 and DSFE -002-2018.  
7.1894.   However, in order to be exhaustive in its analysis, the Panel will address the questions of 
whether any of the alternative measures proposed are reasonably available taking into account 
technical and economic feasibility, and whether any of the alternative measures proposed by Mexico 
are significantly less restrictive to trade than the phytosanitary requirements set forth in Resolutions 
DSFE -003-2018 and DSFE -002-2018.  
 
2989 APEAM, Preliminary report of sampling survey of consignments (2020), (Exhibit MEX -223). 
2990 Asociación de Productores, Empacadores y Exportadores de Aguacate de México, A.C. (APEAM), 
"Informe final de resultados del muestreo para detectar ASBVd en aguacates frescos para consumo destinados 
a la exportación ", marzo de 2020 (APEAM, Final report of sampling survey of consignments (2020) ), 
(Exhibit  MEX-263). 
2991 APEAM, Final report of sampling survey of consignments (2020),  (Exhibit MEX -263), pp. 3 and 9 -10. WT/DS524/R  
- 414 - 
  7.5.6.3   Whethe r any of the alternative measures proposed are reasonably available 
taking into account technical and economic feasibility  
7.5.6.3.1   Whether the domestic regulation that prevents diversion from intended use is 
reasonably available taking into account technical and e conomic feasibility  
7.1895.   Mexico  submits that the regulation that prevents diversion from intended use is reasonably 
available to Costa Rica.2992 
7.1896.   Mexico notes that an example of a phytosanitary measure reasonably available to Costa 
Rica, considering their technica l and economic feasibility, is the adoption of a domestic regulation, 
applicable to both imported and domestic products, which prevents diversion from intended use of 
the seed of fresh avocados for consumption as a propagation method for new avocado plants . 
According to Mexico, Chile's Exempt Resolution No.  8182 meets all these requirements.2993 
7.1897.   Mexico indicates that Chile's measure seeks to prevent diversion from intended use of the 
seed of fresh avocados for consumption from places where ASBVd is present, through the regulation 
of the use for propagation purposes of avocado seeds, in accordance with ISPM No.  11, which 
constitutes proof of the existence of an alternative phytosanitary regulation to the measures adopted 
by Costa Rica.2994 
7.1898.   Mexico states  that such a measure is reasonably available to Costa Rica because it is a 
measure previously adopted by another WTO Member with a similar level of development that has 
demonstrated that it is free of ASBVd on the basis of the relevant ISPMs, therefore it is not an 
alternative that is merely theoretical in nature. Mexico adds that the regulation of the use for 
propagation purposes of seeds of avocados imported for consumption was considered in Costa Rica's 
PRAs, from which it is clear that Costa Rica could have adopted this measure without its 
implementation being a disproportionate burden.2995 
7.1899.   Mexico adds that, after the preparation of Mexico's first written submission, Costa Rica 
decided to implement this very measure through Decree No.  41995 -MAG, which prohibits the use 
for propagation purposes of seeds extracted from fresh avocado fruit imported for consumption from 
countries where ASBVd is present. According to Mexico, the implementation of this alternative 
measure is reasonably available to Costa Rica  because the decree is already in force and is applied 
by the SFE. Mexico reiterates that this measure had already been recommended, although not 
evaluated, by Costa Rica in its PRAs.2996 Mexico states that, because Costa Rica has already 
implemented this me asure, Mexico has satisfied the burden of demonstrating that its first alternative 
is reasonably available to Costa Rica.2997 
7.1900.   Costa Rica  states that Mexico has failed to establish that the first alternative proposed, 
i.e. regulation to prevent diversion from  intended use of the seed of fresh avocados for consumption 
as a propagation method for new plants, meets the requirements of Article 5.6 of the 
SPS Agreement .2998 
7.1901.   Costa Rica states that the burden of demonstrating that the first alternative measure meets 
all the requirements of Article 5.6 of the SPS  Agreement  falls upon Mexico, and Mexico has failed to 
submit any valid arguments with regard to the alternative measure being reasonably available taking 
into account technical and economic feasibility.2999 
7.1902.   Costa Rica considers that Mexico's argument that Chile has previously adopted this 
regulation is irrelevant, because the technical and economic feasibility of an alternative measure 
must be analysed based on Costa Rica's situation, and not from the perspective o f Chile or any other 
 
2992 Mexico's second written submission, p. 58.  
2993 Mexico's first written submission, para. 550.  
2994 Mexico's first written submission, para. 551.  
2995 Mexico's first written submission, para. 552.  
2996 Mexico's second written submission, para. 251 (referring to Regula tion governing the use of avocado 
seeds (2019), (Exhibits MEX -174 and CRI -53)). 
2997 Mexico's second written submission, paras.  252-253. 
2998 Costa Rica's first written submission, para. 5.226.  
2999 Costa Rica's first written submission, para. 5.228.  WT/DS524/R  
- 415 - 
  WTO Member.3000 For Costa Rica, it is also irrelevant that the measure adopted by Chile is applied 
in accordance with ISPM No.  11, which concerns the PRA for quarantine pests.3001 
7.1903.   With regard to the first alternative proposed by Mexico, co nsisting of the domestic 
regulation that prevents diversion from intended use, the Panel  observes that Reports ARP -002-
2017 and ARP -006-2016 by Costa Rica recommended regulating the use for propagation purposes 
of seeds of avocado imported for consumption.3002 Moreover, Costa Rica issued the Regulation 
governing the use of avocado seeds (2019).3003 
7.1904.   In the Panel's view, the foregoing means that Costa Rica itself considers that the domestic 
regulation seeking to prevent diversion from intended use could be a meas ure reasonably available 
taking into account technical and economic feasibility, although the analysis of the measure is not 
reflected in Reports ARP -002-2017 and ARP -006-2016. Furthermore, the Panel observes that the 
panel in Korea – Radionuclides  indicat ed that the respondent's existing use of a proposed alternative, 
even if in a different context, weighs in favour of a finding of feasibility.3004 
7.1905.   In light of the foregoing, the Panel finds that the first alternative proposed by Mexico, 
consisting of the domestic regulation that prevents diversion from intended use, is reasonably 
available to Costa Rica taking into account technical and economic feasibility.  
7.5.6.3.2   Whether the ASBVd symptom -free certification of shipments is reasonably 
available taking into accou nt technical and economic feasibility  
7.1906.   Mexico  submits that the ASBVd symptom -free certification of shipments is reasonably 
available to Costa Rica.3005 
7.1907.   Mexico submits that, in May 2015, the head of SENASICA's Directorate General of Plant 
Health made an offer to the Executive Director of the SFE to add to the certification of consignments 
the declaration that they will be free of fruit with ASBVd symptoms and that shipment contains only 
certified consignments, and to deny this certification to those shipments t hat do not meet this 
precautionary measure. Mexico considers that any consignment containing fruit with visible 
sunblotch symptoms would be discarded or rejected as a result of the strengthening of Mexican 
inspection and phytosanitary certification systems .3006 
7.1908.   Given that it is not an alternative that imposes an undue or highly onerous burden, Mexico 
notes that this measure is reasonably available to Costa Rica because it does not require any action 
from Costa Roca, and the burden of certifying that the fresh  avocado fruit are free of visible ASBVd 
symptoms would fall upon the Mexican authorities.3007 
7.1909.   Mexico adds that, because the safety requirements observed by packing facilities meet the 
highest standards, including manual selection to reject fruit with defect s or symptoms, the 
symptom -free certification of shipments is an alternative reasonably available to Mexico. Mexico also 
states that, in light of the sampling carried out on the consignments that it exports, it is confirmed 
that the avocados from Mexico ar e not asymptomatic, which is an additional guarantee for Costa 
Rica.3008 
7.1910.   For its part, Costa Rica  indicates that this alternative proposed by Mexico is a simple 
quality standard that Mexico already applies to its exports, and that it is ultimately the same a s not 
having any phytosanitary measures.3009 
 
3000 Costa Rica's  first written submission, para. 5.229.  
3001 Costa Rica's first written submission, para. 5.230.  
3002 ARP-002-2017, (Exhibit MEX -84), p. 43; ARP -006-2016, (Exhibit MEX -85), p. 24.  
3003 Regulation governing the use of avocado seeds (2019), (Exhibits MEX -174 and CRI -53). 
3004 Panel Report , Korea – Radionuclides , para. 7.144 (citing Panel  Report s, India – Agricultural  Products , 
paras.  7.541 -7.542; and Japan – Apples (Article 21.5 – US), para.  8.187).  
3005 Mexico's first written submission, para. 556; second written submission, p. 59.  
3006 Mexico's first written submission, para. 554; second written submission, para. 255.  
3007 Mexico's first written submission, para. 555.  
3008 Mexico's second written submi ssion, para. 255.  
3009 Costa Rica's second written submission, para. 3.73.  WT/DS524/R  
- 416 - 
  7.1911.   The Panel  notes that both parties have referred to the quality control of avocados for 
export in Mexico3010, and that the second alternative proposed by Mexico consists of the issuance of 
a certificate declaring that the shipment does not contain fruit with visible ASBVd symptoms following 
the process, already in place, of selecting fruit for export.  
7.1912.   The Panel notes that it is Mexico that is proposing as an alternative measure the certification 
of fresh fruit as free of visible ASBVd symptoms, and the burden of this measure would fall upon the 
Mexican authorities; and Costa Rica does not seem to specifically dispute the feasibility of the 
measure.  
7.1913.   In the Panel's view, the foregoing is sufficient to find t hat the second alternative proposed 
by Mexico, consisting of the symptom -free certification of shipments, is reasonably available to 
Costa  Rica taking into account technical and economic feasibility.  
7.5.6.4   Whether any of the alternative measures proposed by Mexico are significantly 
less restrictive to trade than Resolutions DSFE -003-2018 and DSFE -002-2018  
7.5.6.4.1 Whether the regulation on diversion from intended use or ASBVd symptom -free 
certification are measures that are s ignificantly less restrictive to trade than Resolutions 
DSFE -003-2018 and DSFE -002-2018  
7.1914.   Mexico  states that the alternative consisting of domestic regulation on diversion from 
intended use is significantly less restrictive to trade than the measures found i n 
Resolutions  DSFE -002-2018 and DSFE -003-2018, because it does not imply an import restriction, 
nor does it impose an obligation on the export product and the exporting Member, but rather 
recognizes the responsibility of the importing country to ensure pla nt protection in its territory.3011 
7.1915.   Mexico submits that Costa Rica's measures constitute de facto  import restrictions, as they 
establish extremely onerous requirements for Mexican producers with which it is technically 
impossible to comply.3012 Mexico asserts that: 
a. The first option established by the resolutions (phytosanitary certificate) constitutes a de 
facto ban, because the exporter cannot guarantee that all avocado fruit are free of ASBVd; 
and in order to guarantee that a consignment is completely free of  ASBVd, individual 
laboratory tests are required to then be able to obtain an official phytosanitary certificate 
from SENASICA in accordance with Resolutions DSFE -002-2018 and DSFE -003-2018. In 
Mexico's view, this is extremely onerous for Mexican avocado p roducers, as it increases 
storage and logistical costs, as avocado producers must wait for the laboratory results to 
be ready in order to export these perishable products, and an individual laboratory test to 
detect ASBVd costs approximately USD  60. Mexico  notes that this certification process 
discourages the export of fresh avocados, as sampling fresh fruits affects their export 
quality because of the incisions that must be made in the avocados for laboratory 
testing.3013 
b. The second option (ASBVd -free place of production previously recognized by the SFE) also 
constitutes a de facto  ban because: (i)  declaring an area free of ASBVd takes several years 
and is a very costly process for producers, as it requires constant monitoring and specific 
laboratory tests ov er an extended period; and (ii)  certifying ASBVd -free places of 
production is extremely costly for avocado producers. According to Mexico, this requires 
laboratory tests that prove a fruit tree is free of ASBVd, and this process is as costly as 
individual avocado tests, because each study costs approximately USD  60. Mexico points 
out that, in order to guarantee that an area is free of ASBVd, new plantations must be 
established to be able to obtain official certifications. Mexico adds that guaranteeing that 
the area is free of ASBVd would require constant monitoring through individual laboratory 
tests, or even satellite detection, which discourages exports as exporting and importing 
become more onerous. Satellite detection costs approximately USD  1,250 per 64 km2 of 
 
3010 Mexico's second written submission, para. 116; Costa Rica's second written submission, para. 3.73.  
3011 Mexico's first written submission, para. 578.  
3012 Mexico's first written submission, para. 579.  
3013 Mexico's first written submission, para. 579 (citing Affidavit of Manrique Loáiciga González (2019),  
(Exhibit  MEX-95); and Factura del diagnóstico fitosanitario , (Exhibit MEX -143)). WT/DS524/R  
- 417 - 
  planted land, in addition to extra staff and infrastructure costs for the analysis of the 
images.3014 
7.1916.   Mexico submits that any other measure that is less costly for producers is significantly less 
restrictive to trade than a de facto  restriction. Mexico notes that Exempt Resolution No.  8.182 
adopted by Chile does not seek to impose import requirements, and while the ASBVd symptom -free 
certification of shipments is a more burdensome alternative than Exempt Resolution No.  8.182, it is 
still less restrictive than phytosanitary certificates declaring that the fruit is completely free of 
ASBVd.3015 
7.1917.   Mexico points out that, without the phytosanitary certificates imposed by Costa Rica, 
imports of fresh avocados from Mexico to Costa Rica were gre ater. Mexico asserts that complying 
with any of the options established by Costa Rica in its resolutions requires laboratory tests that are 
disproportionately expensive compared to the risk associated with the entry, establishment and 
spread of ASBVd throu gh the trade in fresh avocados for consumption, therefore replacing the 
requirements with either of the two alternatives proposed by Mexico would be less restrictive to 
trade.3016 
7.1918.   Costa Rica  submits that Mexico has failed to establish that the first alternat ive measure is 
significantly less restrictive to trade than the phytosanitary measure challenged.3017 
7.1919.   Costa Rica asserts that Mexico never explains why the challenged measures constitute 
import restrictions, and instead argues that Costa Rica's requirements are de facto  bans. According 
to Costa Rica, Mexico appears to misunderstand the concept of a trade "restriction", and the 
imposition of import requirements, even more so when linked to the protection of plant health, does 
not necessarily result in a restri ction. Costa Rica submits that Mexico has failed to demonstrate that 
the phytosanitary requirements imposed by Costa Rica restrict imports. For Costa Rica, these are 
formalities allowed under Article VIII of the GATT  1994 and cannot be assumed a priori  to impose 
restrictions. Costa Rica notes that the mere fact that the first alternative measure does not impose 
import requirements, whereas the challenged phytosanitary measures do, is not sufficient to prove 
that this alternative is significantly less restri ctive to trade than the challenged phytosanitary 
measures.3018 
7.1920.   Costa Rica also submits that, even assuming that its phytosanitary requirements involve 
some restriction, it is the least possible restriction. According to Costa Rica, its phytosanitary 
measure offers the exporting country all the flexibility to choose the method it deems most 
appropriate to ensure that the exported avocado fruit are free of ASBVd. Costa Rica notes that any 
of its three alternatives is acceptable, and all meet its ALOP to prevent  as much as possible the entry 
of ASBVd, in order to maintain the country's phytosanitary status as free of ASBVd. Costa Rica adds 
that it adopted alternative requirements in order to minimize negative trade effects, pursuant to 
Article 5.4 of the SPS  Agreement . Costa Rica states  that, if a bilateral system approach has not been 
agreed or if it is inconvenient to certify pest free places of production, shipments can be certified as 
free of ASBVd.3019 
7.1921.   Costa Rica contends that Mexico's arguments that Costa Rica's phytosanitary requirements 
are impossible to comply with and are  de facto  bans have no possible merit. According to Costa Rica, 
its market is entirely open to imports of fresh avocados for consumption, and all that is asked is that 
those imports arr ive free of ASBVd. Costa Rica submits that its phytosanitary measure, far from 
being the insurmountable barrier that Mexico suggests, can be met normally if the will to export is 
there.3020 
7.1922.   Costa Rica further submits that, if it were in fact impossible to co mply with Costa Rica's 
requirements, no avocados would be imported into Costa Rica from countries where ASB Vd is 
 
3014 Mexico's first written submission, para. 580.  
3015 Mexico's first written submission, para. 581.  
3016 Mexico's second written submission, para. 270.  
3017 Costa Rica's first written submission, para. 5.238.  
3018 Costa Rica's first written submission, para. 5.239.  
3019 Costa Rica's second writte n submission, para. 3.65. See also Costa Rica's response to Panel 
question No.  84, para. 2; response to Panel question No. 87, para. 2.  
3020 Costa Rica's second written submission, para. 3.64.  WT/DS524/R  
- 418 - 
  present, which is not the case, given that Costa Rica imports avocados from Peru, Guatemala and 
the United  States , countries where ASBVd is pre sent. Costa Rica adds that Mexico only refers to two 
of the three alternatives provided for in Resolutions DSFE -002-2018 and DSFE -003-2018, and the 
flexibility of Costa Rica's phytosanitary measures lies in the fact that there is a choice between three 
options. Costa Rica states that Mexico fails to put forward any argument to explain why the first 
alternative measure is significantly less restrictive to trade than complying, for example, with a 
bilaterally -established systems approach programme.3021 
7.1923.   With res pect to Mexico's argument that the option of submitting a phytosanitary certificate 
that the avocado fruit are free of ASBVd constitutes a de facto  import ban, Costa Rica notes the 
following:  
a. Nothing in Resolutions DSFE -002-2018 and DSFE -003-2018 requires Mexico to carry out 
individual laboratory tests, nor do they impose specific ways to comply with the alternative 
phytosanitary requirements set forth therein. According to Costa Rica, each exporting 
country determines the most appropriate manner in which t o proceed with sanitary or 
phytosanitary certifications, and each importing country, regardless of the cooperation 
and mutual trust between NPPOs, has the right to verify the entry of goods. Costa Rica 
points out that nothing prevents Mexico from dispensin g with the ASBVd -free certification 
of shipments and choosing to certify ASBVd -free places of production. Costa Rica adds 
that Mexico asserts that laboratory tests for ASBVd are expensive, and the only evidence 
it submits in support of this argument is Exh ibit MEX -143, which should correspond to a 
ASBVd molecular detection invoice from the Colegio de Postgraduados , but it makes no 
reference to a molecular diagnostic test or to ASBVd and, therefore, has no probative 
value.3022 
b. Despite the alleged de facto  ban, Mexico sent to Costa Rica a consignment of fresh 
avocados for consumption certified as free of ASBVd in 2018, which, in Costa Rica's view, 
shows that Mexico is in a position to comply with the phytosanitary requirement, if  it so 
wishes.3023 
7.1924.   Costa Rica asserts that requesting that a shipment arrive free from a quarantine pest is the 
minimum requirement that an importing country may ask of the exporting counterpart, which is 
what is suggested by ISPM No.  12 on phytosanitary cer tificates.3024 
7.1925.   Costa Rica adds that Mexico itself maintains phytosanitary measures of this type for 
potatoes, and presumably does not consider them to constitute a ban or unnecessary restrictions, 
as Mexico requires certification that shipments of potatoes f or consumption are free of certain 
quarantine pests. According to Costa Rica, this is the measure that Mexico imposes with respect to 
low-risk quarantine pests, which confirms that it is a requirement that Mexico itself considers to be 
minimal, including i n lower risk situations.3025 
7.1926.   With respect to Mexico's argument that the option of exporting avocado fruit from ASBVd -
free places of production also constitutes a de facto  ban, Costa Rica notes that:  
 
3021 Costa Rica's first written submission, para. 5.240; second written submission, para. 3.64.  
3022 Costa Rica's first written submission, para. 5.241.  
3023 Costa Rica's first written submission, para. 5.242 (citing Servicio Nacional de Sanidad, Inocuidad y 
Calidad  Agroalimentaria (SENASICA) , Certificado fitosanitario internacional No. 2484576 relativo a la 
exportación de aguacate fresco variedad Hass de México a Costa Rica, 23 de abril de 2018, (Exhibit CRI -38)); 
second written submission, para. 3.64. Costa Rica as serts that it was Mexico itself who, a few months before 
submitting its panel request in this dispute, requested that the aforementioned consignment of avocados be 
rejected by Costa Rica because the certificate signatory was not duly authorized by the Mexi can NPPO. 
(Costa  Rica's first written submission, fn  595 (citing Servicio Nacional de Sanidad, Inocuidad y Calidad 
Agroalimentaria (SENASICA) , Oficio B.00.01.01. -04461/2018, 7 de mayo de 2018, (Exhibit CRI -39))). 
3024 Costa Rica's second written submission, para. 3.66.  
3025 Costa Rica's second written submission, para. 3.67 (citing Requisitos de México para plagas 
cuarentenarias de riesgo bajo, (Exhibit CRI -107)). WT/DS524/R  
- 419 - 
  a. Regarding the argument that laboratory testing is "costly",  the only exhibit submitted by 
Mexico in that respect, Exhibit MEX -143, has no probative value, as it does not specify the 
type of diagnostic test, nor does it make reference to ASBVd.3026 
b. Mexico's argument that the option of certifying ASBVd -free places of production also 
constitutes a de facto  ban appears to arise from its confusion between "areas" and "places 
of production" free of ASBVd. Costa Rica asserts that Resolutions DSFE -003-2018 and 
DSFE -002-2018 refer to ASBVd -free places of production and not to  ASBVd -free areas.3027 
Costa Rica notes that: (i)  the requirements for the establishment of pest free places of 
production are set out in ISPM No.  10; and the requirements for the establishment of pest 
free places of production in ISPM No.  4; (ii) a pest fre e area is much larger and includes 
many places of production, which implies greater demand for NPPO resources in order to 
establish, maintain and recognize it; and, conversely, a pest free place of production is 
easier to establish, given that it may be a farm where management systems are in place 
that allow it to be kept pest free; (iii)  if the pest is found in a pest free area, the status of 
the whole area is called into question and considerable effort and resources are needed to 
restore its pest free st atus; and, conversely, if the pest is found in a pest free place of 
production, that place loses its status but other places that operate under the same system 
are not directly affected.3028 Costa Rica contends that, because Mexico's arguments focus 
on ASBVd -free areas, Mexico has failed to establish that the first alternative measure is 
significantly less restrictive to trade than complying with the requirement to present a 
phytosanitary certificate that the avocado fruit come from ASBVd -free places of 
produ ction.3029 
7.1927.   Costa Rica further contends that Mexico has failed to establish that its second alternative 
measure is significantly less restrictive to trade than the optional phytosanitary requirements 
provided for in Resolutions DSFE -002-2018 and DSFE -003-2018; and fails to explain why symptom -
free certification would be significantly less restrictive than certifying that avocado fruit come from 
ASBVd -free places of production or complying with a bilaterally -established systems approach.3030 
7.1928.   The Panel  notes that according to the third criterion in footnote 3 to Article 5.6, the 
complainant must demonstrate that the proposed alternative measure is "significantly" less 
restrictive to trade than the challenged measure.  
7.1929.   The Diccionario de la lengua española  of the Rea l Academia Española defines " significativo " 
("significant ") as something " que tiene importancia por representar o significar algo " ("that is 
important because it represents or means something ").3031 As mentioned, the panel in 
Korea  – Radionuclides  noted that the Appellate Body had understood "significance" in the context of 
the SCM  Agreement  to connote something that can be characterized as "important, notable or 
consequential".3032 This Panel will be guided by these interpretations in i ts analysis of whether the 
regulation on diversion from intended use and ASBVd symptom -free certification are significantly 
less restrictive to trade than the phytosanitary requirements for ASBVd set forth in Resolutions 
DSFE -003-2018 and DSFE -002-2018.  
7.1930.   While both parties set out detailed arguments about the cost and level of restriction of 
Costa Rica's phytosanitary requirements for ASBVd, the Panel does not consider it necessary to 
address these specific arguments in order to determine whether the degree of restrictiveness of the 
alternative measures proposed by Mexico is significantly  less compared to that of the phytosanitary 
requirements.  
7.1931.   The Panel notes that, in order to comply with Costa Rica's phytosanitary requirements set 
forth in Resolutions DSFE -003-2018 and DSFE -002-2018, it is necessary to comply with either one 
 
3026 Costa Rica's first written submission, para. 5.243.  
3027 Costa Rica's first written submission, para. 5.243.  
3028 Costa Rica's first written submission, para. 5.244.  
3029 Costa Rica's first written submission, para. 5.245.  
3030 Costa Rica's first written submission, para. 5.250.  
3031 Diccionario de la lengua española , Real Ac ademia Española, accessed 30  November  2021, 
https://dle.rae.es/significativo . 
3032 Panel Report , Korea – Radionuclides , para. 7.153 (citing Appellate Body Report, US – Upland Cotton , 
para. 426).  WT/DS524/R  
- 420 - 
  of two certificates, or a systems approach3033, which requires an effort  by the exporting country to 
ensure that its avocado fruit for export to Costa Rica are free of ASBVd, which in turn would require 
adjustments to avocado production and marketing. This undoubtedly affects trade.  
7.1932.   The Panel notes, in contrast, that the first  alternative measure proposed by Mexico, 
consisting of domestic regulation that prevents diversion from intended use, is a measure of general 
application in Costa Rica that prohibits the use for propagation purposes of seeds extracted from 
fresh fruit impo rted for consumption. As such, and as Mexico points out, this measure does not imply 
an import restriction. Therefore, the Panel considers that domestic regulation that prevents diversion 
from intended use is a measure that can be described as significantl y or considerably less restrictive 
to trade, compared to the restrictiveness of Costa Rica's phytosanitary requirements, even when 
taking into account the possibility to choose the requirement with which to comply.  
7.1933.   With regard to the second alternative mea sure proposed by Mexico, consisting of ASBVd 
symptom -free certification of shipments, the Panel recalls that this is a certification following quality 
control whereby fruit with ASBVd symptoms would be removed.  The Panel considers that, given that 
this is a visual and routine check that does not involve laboratory or other tests, ASBVd 
symptom -free certification of shipments is a measure whose trade restrictiveness can be described 
as significantly or considerably less, compared to the restrictiveness of Co sta Rica's phytosanitary 
requirements, even when taking into account the possibility to choose the requirement with which 
to comply.  
7.1934.   In light of the foregoing, the Panel finds that both of the alternative measures proposed by 
Mexico, domestic regulation th at prevents diversion from intended use and ASBVd symptom -free 
certification of shipments, are significantly less restrictive to trade than the phytosanitary 
requirements set forth in Resolutions DSFE -003-2018 and DSFE -002-2018.  
7.5.7    Overall conclusion of this  section  
7.1935.   The Panel has concluded that Mexico has failed to demonstrate that the first alternative 
measure, consisting of domestic regulation that prevents the diversion from intended use, or the 
second alternative measure, consisting of ASBVd symptom -free certification of shipments, achieve, 
by themselves, the ALOP set by Costa Rica.  
7.1936.   In order to be exhaustive in its analysis, the Panel has also found that both of the alternative 
measures proposed by Mexico, domestic regulation that prevents diversion from i ntended use and 
ASBVd symptom -free certification of shipments, are reasonably available to Costa Rica taking into 
account technical and economic feasibility, and are significantly less restrictive to trade than the 
phytosanitary requirements set forth in R esolutions DSFE -003-2018 and DSFE -002-2018.  
7.1937.   Because the three criteria in the footnote to Article 5.6 of the SPS  Agreement  are 
cumulative, the Panel's conclusion that Mexico has failed to meet one of these criteria is sufficient 
to conclude that Mexico has  failed to demonstrate that there is an alternative measure that is 
reasonably available taking into account technical and economic feasibility, that achieves 
Costa  Rica's ALOP and is significantly less restrictive to trade.  
7.1938.   Since neither of the two altern ative measures proposed by Mexico achieves Costa Rica's 
ALOP, the Panel concludes that Mexico has failed to demonstrate that Costa Rica's phytosanitary 
measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary 
requirements , are more trade -restrictive than required to achieve its appropriate level of 
phytosanitary protection, taking into account technical and economic feasibility. The Panel therefore 
 
3033 With respect to the systems approach, Costa Rica itself notes  that this alternative consists of 
integrating phytosanitary measures applied from before the crop is planted (including packing facilities, 
transport and exit points) until the entry point and p ost-entry. Costa Rica also notes that the system approach 
programme requires two independent measures with a cumulative effect, agreed between the exporting 
country and Costa Rica in order to fulfil Costa Rica's ALOP. (Costa Rica's response to Panel questi on No. 53). 
This would imply adjustments to the production and marketing of avocados, as well as efforts by the exporting 
country to implement an independent measure which Costa Rica itself accepts that, together with the other 
independent measure, achieve s its "maximum" ALOP. Costa Rica indicates that this would not be achieved with 
the alternative measures proposed by Mexico.  WT/DS524/R  
- 421 - 
  concludes that Mexico has failed to demonstrate that Costa Rica has acted i nconsistently with Article 
5.6 of the SPS  Agreement .3034 
7.6  Mexico's claims with respect to the obligations pertaining to arbitrary or unjustifiable 
discrimination or disguised trade restrictions  
7.6.1   General introduction  
7.1939.   Mexico claims that Costa Rica has adopted ar bitrary and unjustifiable levels of protection, 
in a manner inconsistent with Article 5.5 of the SPS  Agreement .3035 
7.1940.   Mexico contends that Costa Rica adopted different levels of phytosanitary protection in at 
least three different but comparable situations:  
a. Fresh avocados imported for consumption from countries where ASBVd is present vis-à-
vis domestic Costa Rican avocados in which ASBVd is likely to be present.3036 
b. Fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing 
countries where ASBVd is present.3037 
c. Fresh avocados imported for consumption in which ASBVd is present vis-à-vis avocado 
plants for planting.3038 
7.1941.   Costa Rica states that Mexico's claims are unfounded, because, as the situations are not 
comparable, there i s no discrimination.3039 
7.1942.   Costa Rica asserts  that Mexico's claim under Articles 5.5 and 2.3 of the SPS  Agreement  is 
based entirely on the premise that ASBVd is present in Costa Rica, a premise that Costa Rica 
considers to be factually incorrect. In Costa Rica 's view, the situations in Mexico and in Costa Rica 
are not comparable, as ASBVd is present in Mexico and it is not in Costa Rica, and that is why it is 
not required to extend the same treatment to different situations.3040 
7.1943.   The Panel will examine below whether Mexico has demonstrated that Costa Rica has acted 
inconsistently with Article 5.5 of the SPS  Agreement . To that end, the Panel will examine whether 
there are arbitrary or unjustifiable distinctions in the levels of protection that Costa Rica consid ers 
appropriate in different situations. If it determine s that such distinctions exist, the Panel will examine 
whether these distinctions result in discrimination or a disguised restriction on international trade.  
7.1944.   The Panel will then analyse whether Mexico  has demonstrated that Costa Rica has acted 
inconsistently with Article 2.3 of the SPS  Agreement , because its SPS measures arbitrarily or 
unjustifiably discriminate between Members where identical or similar conditions prevail, including 
between its own te rritory or that of other Members, or are applied in a manner which would 
constitute a disguised restriction on international trade.  
7.1945.   To that end, the Panel will set forth the relevant legal provisions and the legal standard, 
and will subsequently conduct th e necessary analysis, first in respect of Article 5.5 and then in 
respect of Article 2.3.  
 
3034 Mexico considers that a finding of a violation of Article  5.6 would result in a finding of a 
consequential violation of Article 2 .2 of the SPS Agreement.  (Mexico's response to Panel question No.  98, 
para. 112). However, the Panel concluded that Mexico has failed to demonstrate that Costa Rica's measures 
are inconsistent with Article 5.6 of the SPS Agreement.  
3035 Mexico's first writte n submission, p. 132.  
3036 Mexico's second written submission, para. 216.  
3037 Mexico's second written submission, para. 217.  
3038 Mexico's second written submission, para. 218.  
3039 Costa Rica's first written submission, para. 5.197.  
3040 Costa Rica's first written subm ission, para. 5.206; second written submission, paras.  3.75 and 3.83.  WT/DS524/R  
- 422 - 
  7.6.2   The relevant legal provisions  
7.1946.   Article 5.5 of the SPS  Agreement  stipulates, in relevant part, as follows:  
With the objective of achieving consistency in the applicatio n of the concept of 
appropriate level of sanitary or phytosanitary protection against risks to human life or 
health, or to animal and plant life or health, each Member shall avoid arbitrary or 
unjustifiable distinctions in the levels it considers to be app ropriate in different 
situations, if such distinctions result in discrimination or a disguised restriction on 
international trade.  
7.1947.   Article 2.3 stipulates that:  
Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily 
or unjust ifiably discriminate between Members where identical or similar conditions 
prevail, including between their own territory and that of other Members. Sanitary and 
phytosanitary measures shall not be applied in a manner which would constitute a 
disguised res triction on international trade.  
7.6.3   Legal standard under Article  5.5 of the SPS  Agreement  
7.1948.   In this section, the Panel will explain how other panels and the Appellate Body have 
interpreted Article 5.5 of the SPS  Agreement . The Panel will be guided by these inte rpretations to 
the extent that they are relevant to its analysis.  
7.1949.   The preamble to the SPS  Agreement  reaffirms the right of Members to adopt and enforce 
SPS measures, "subject to the requirement that these measures are not applied in a manner which 
would co nstitute a means of arbitrary or unjustifiable discrimination between Members where the 
same conditions prevail or a disguised restriction on international trade". Articles 2.3 and 5.5 of the 
SPS Agreement  express what is reflected in the preamble.  
7.1950.   Article  5.5 of the SPS  Agreement  requires Members to avoid arbitrary or unjustifiable 
distinctions in their ALOPs in different situations, if such distinctions result in discrimination or a 
disguised restriction on international trade.  
7.1951.   The Appellate Body in EC – Hormones  stated that the objective of Article 5.5 of the 
SPS Agreement  is to achieve consistency in the application of the concept of appropriate level of 
sanitary or phytosanitary protection, which is a goal to be achieved in th e future, and that the 
statement of that goal does not establish a legal obligation of consistency of appropriate levels of 
protection.3041 The Appellate Body clarified that the goal set is not absolute or perfect consistency, 
rather it is only arbitrary or unjustifiable inconsistencies that are to be avoided.3042 
7.1952.   The panel in US – Poultry (China)  explained that Article 5.5. embodies a non -discrimination 
principle in respect of the application of the appropriate level of sanitary or phytosanitary 
protection.3043 The same panel noted that the analysis under Article 5.5 is with respect to 
determining whether the Member is applying different ALOPs to the same risk.3044 
7.1953.   The Appellate Body in EC – Hormones  established the three elements the presence of which 
must be show n for there to be a violation of Article 5.5: (i)  that the Member imposing the measure 
complained of has adopted its own appropriate levels of protection in several different situations; 
(ii) that those levels of protection exhibit arbitrary or unjustifiab le differences ("distinctions" in the 
language of Article 5.5) in their treatment of different situations; and (iii)  that the arbitrary or 
unjustifiable differences result in discrimination or a disguised restriction of international trade.3045 
According to the Appellate Body, these elements are cumulative in nature.3046 However, the 
 
3041 Appellate Body Report, EC – Hormones , para.  213. 
3042 Appellate Body Report, EC – Hormones , para.  213. 
3043 Panel  Report , US – Poultry (China) , para. 7.218.  
3044 Panel  Report , US – Poultry (China) , para. 7.333.  
3045 Appellate Body Report, EC – Hormones , para.  214.  
3046 Appellate Body Report, EC – Hormones , para.  215. WT/DS524/R  
- 423 - 
  Appellate Body noted that all three elements of Article 5.5 need to be distinguished and addressed 
separately.3047 
7.1954.   The first element  implies that a Member has established different l evels of protection which 
it regards as appropriate for itself in differing situations.3048 The panel in US – Poultry (China)  was 
of the view that this element appears to have two, closely related aspects: (i)  the existence of 
different situations; and (ii)  the existence of different ALOPs in such situations.3049 
7.1955.   With respect to the first aspect of the first element, the Appellate Body in EC – Hormones  
noted that the situations exhibiting differing levels of protection cannot be compared unless they are 
compara ble, that is, unless they present some common element or elements sufficient to render 
them comparable.3050 The Appellate Body considered that situations which are " totally  different from 
one another" would not be "rationally comparable".3051 
7.1956.   For example, in EC – Hormones , the panel considered that, for the purposes of that dispute, 
"different" but comparable situations in the sense of Article 5.5 were those where the same 
substance or the same adverse health effect was involved.3052 The panel in US – Poultry (China)  
concluded that the importation of Chinese poultry products was a different yet comparable situation 
to that of poultry products from other WTO Members.3053 
7.1957.   The Appellate Body in Australia – Salmon  noted that situations which involve a risk of entry, 
establi shment or spread of the same or a similar disease have some common elements sufficient to 
render them comparable under Article 5.5. Likewise, situations with a risk of the same or similar 
associated potential biological and economic consequences also have some common elements 
sufficient to render them comparable under Article 5.5.3054 Therefore, the Appellate Body concurred 
with the panel in that dispute that the situations can be compared under Article  5.5 if these situations 
involve either a risk of entry, establishment or spread of the same or a similar disease, or a risk of 
the same or similar associated potential biological and economic consequences.3055 The WTO 
Committee on Sanitary and Phytosanitary Measures affirmed this in its Guidelines to Further the 
Practical Implementation of Article 5.5.3056 
7.1958.   With regard to the second aspect of the first element of Article 5.5, according to the panel 
in US – Poultry (China) , this refers to the existence of different ALOPs being applied in different but 
comparable situa tions.3057 With regard to the distinction in the appropriate levels of protection, in 
EC – Hormones , the Appellate Body pointed out that "[c]learly, comparison of several  levels of 
sanitary protection deemed appropriate by a Member is necessary" if a panel's  inquiry under 
Article  5.5. is to proceed at all.3058 
7.1959.   The panel in Australia – Salmon  noted that to have a specific level of protection, there was 
no need to first complete a risk assessment, in the sense that a risk analysis was not required for 
the other p roducts compared under Article 5.5.3059 The same panel considered that its task was to 
compare for different situations the related levels of protection as they were considered to be 
 
3047 Appellate Body Report, EC – Hormones , para.  238. See also Panel  Report , US – Poultry (China) , 
para. 7.222.  
3048 Appellate Bo dy Report, EC – Hormones , para.  216. 
3049 Panel  Report , US – Poultry (China) , para. 7.225.  
3050 Appellate Body Report, EC – Hormones , para.  217. 
3051 Appellate Body Report, EC – Hormones , para.  217. (emphasis original) See also Panel  Report , 
US – Poultry (China) , para. 7.226.  
3052 Panel  Report s, EC – Hormones (United  States) , para.  8.176; and EC – Hormones (Canada) , 
para. 8.179.  
3053 Panel  Report , US – Poultry (China) , para. 7.237.  
3054 Appellate Body Report, Australia – Salmon , para. 146.  
3055 Appellate Body Report, Australia – Salmon , para. 146.  
3056 Comité de Medidas Sanitarias y Fitosanitarias, Directrices para fomentar la aplicación práctica del 
párrafo 5 del artículo 5 del Acuerdo MSF, G/SPS/15 (18 de julio de 2000)  (G/SPS/15), (Exhibit MEX -163), 
para. A.2, p. 3. The Panel notes that Article 5.5 states that "Members shall cooperate in the Committee … to 
develop guidelines to further the practical implementation" of this provision.  
3057 Panel  Report , US – Poultry (China) , para. 7.238.  
3058 Appellate Body Report, EC – Hormones , para.  217. (emphasis original) See also Panel Report, 
US – Poultry (China) , para. 7.239.  
3059 Panel Report, Australia – Salmon , para.  8.125.  WT/DS524/R  
- 424 - 
  appropriate at the time by the respondent, and this whether or not the sani tary measures enacted 
to achieve that level were based on a risk assessment.3060 
7.1960.   The panel in Australia – Apples  noted that the dispute had specific circumstances in that 
the complainant contested alleged differences in the level of protection achieved in pr actice by the 
measures applied in comparable situations, despite the stated ALOP. For this reason, the panel 
refrained from analysing the first element of Article 5.5 and proceeded with the second element.3061 
The panel explained that if its analysis under t he second element showed that there were arbitrary 
or unjustifiable distinctions in the de facto  ALOP, there would be distinctions in the ALOPs achieved 
by the measures applied by the respondent in the comparable situations.3062 Alternatively, if the 
complai nant had failed to demonstrate the second element, there would be no need to complete the 
analysis of the first element.3063 
7.1961.   The second element  of Article 5.5 refers to the existence of arbitrary or unjustifiable 
differences in the treatment of the different  but comparable situations.3064 
7.1962.   In its analysis of the second element of Article 5.5, the panel in US –Poultry (China)  referred 
to the ordinary meaning in English of the terms "arbitrary", defined as "based on mere opinion or 
preference as opp. to the real n ature of things, capricious, unpredictable, inconsistent", and 
"unjustifiable", defined as "not justifiable, indefensible", with "justifiable" meaning "[c]apable of 
being legally or morally justified, or shown to be just, righteous, or innocent; defensible " and 
"[c]apable of being maintained, defended, or made good".3065 
7.1963.   In addition, the same panel was guided by the interpretation based on the ordinary meaning 
of "arbitrary or unjustifiable" from the chapeau  of Article XX of the GATT  1994, which the Appellate 
Body had considered relevant when interpreting the same phrase i n Article 2.3 of the 
SPS Agreement . The panel considered that it must focus "on the justification for the distinction and 
whether that justification bears a rational relationship to the objective of the measures".3066 
7.1964.   The panel in Australia – Salmon  pointed out that the distinction in the levels of protection 
that effectively banned the import of certain salmon products but allowed the import of other fish 
products might be expected to have some justification, such as a higher risk related to imports of 
the salmon products concerned, or, if not, these distinctions could be considered to be "arbitrary or 
unjustifiable" in the sense of the second element of Article 5.5.3067 
7.1965.   The panel in US – Poultry (China)  noted that, given that the SPS measures must necessarily 
be based on scientific principles and not maintained without sufficient scientific evidence, the 
scientific support, or lack thereof, for the difference between the ALOPs the measures seek to achieve 
should have a bearing on an analysis of whether such a d ifference is arbitrary or unjustifiable.3068 
7.1966.   The Appellate Body in EC – Hormones  noted that the presence of the second element of 
analysis – the arbitrary or unjustifiable character of differences in levels of protection considered by 
a Member as appropriate in differing situations – may in practical effect operate as a warning signal 
that the implementing measure in its application might be a  discriminatory measure or might be a 
restriction on international trade disguised as an SPS measure. Nevertheless, according to the 
Appellate Body, the measure itself needs to be examined and appraised and, in the context of the 
differing levels of protec tion, shown to result in discrimination or a disguised restriction on 
international trade.3069 
 
3060 Panel Report, Australia – Salmon , para.  8.126.  
3061 Panel Report, Australia – Apples , para.  7.985.  
3062 Panel Report, Australia – Apples , para.  7.987.  
3063 Panel  Report , Australia – Apples , para.  7.987.  
3064 Appellate Body Report, EC – Hormones , para.  214. See also Panel  Report , US – Poultry (China) , 
para. 7.255.  
3065 Panel  Report , US – Poultry (China) , para. 7.259.  
3066 Panel  Report , US – Poultry (China) , paras.  7.260 -7.262.  
3067 Panel  Report , Australia – Salmon , para.  8.133. See also Panel  Report , US – Poultry (China) , 
paras.  7.262 -7.263.  
3068 Panel  Report , US – Poultry (China) , para. 7.263.  
3069 Appellate  Body Report, EC – Hormones , para.  215. WT/DS524/R  
- 425 - 
  7.1967.   The third element  requires that the arbitrary or unjustifiable differences result in 
discrimination or a disguised restriction on international trade.3070 
7.1968.   The Appell ate Body in EC – Hormones  understood this last element to be referring to the 
measure embodying or implementing a particular level of protection as resulting, in its application, 
in discrimination or a disguised restriction on international trade.3071 
7.1969.   Simila rly, according to the Appellate Body in EC – Hormones , the degree of difference, or 
the extent of the discrepancy, in the levels of protection, is only one kind of factor which, along with 
others, may cumulatively lead to the conclusion that discrimination  or a disguised restriction on 
international trade in fact results from the application of a measure or measures embodying one or 
more of those different levels of protection.3072 The Appellate Body pointed out that the difference 
in levels of protection tha t is characterizable as arbitrary or unjustifiable is only an element of indirect 
proof that a Member may actually be applying an SPS measure in a manner that discriminates 
between Members or constitutes a disguised restriction on international trade.3073 
7.1970.   The Appellate Body added that, in order to determine whether arbitrary or unjustifiable 
differences or distinctions in levels of protection established by a Member do in fact result in 
discrimination or a disguised restriction on international trade, a panel  must analyse the 
circumstances of each individual case.3074 
7.1971.   In Australia – Salmon , the panel identified three "warning signals" that the measure may 
constitute a disguised restriction on international trade, as well as three "factors more substantial in 
nature" ("additional factors") that are derived from the architecture and structure of the measures 
at issue in that dispute. On the basis of those signals and factors, "considered cumulatively", the 
panel found that the respondent had violated Article 5.5 of  the SPS  Agreement .3075 
7.1972.   The Appellate Body upheld the findings of the panel with regard to the three "warning 
signals".3076 The three signals identified were:  
a. The arbitrary or unjustifiable character of differences in levels of protection3077; 
b. The rather substantial difference in levels of protection3078; and  
c. The inconsistency of the SPS measure at issue with Articles 5.1 and 2.2 of the 
SPS Agreement .3079 
7.1973.   The Appellate Body was in agreement with the second warning signal, noting that, in that 
dispute, the degr ee of difference in the levels of protection (prohibition versus tolerance) was indeed 
"rather substantial".3080 With respect to the third warning signal, the Appellate Body noted that a 
finding that an SPS measure is not based on an assessment of the risks to human, animal or plant 
life or health – either because there was no risk assessment at all or because there is an insufficient 
risk assessment  – is a strong indication that this measure is not really concerned with the protection 
of human, animal or pla nt life or health but is instead a trade -restrictive measure taken in the guise 
of an SPS measure, i.e.  a disguised restriction on international trade.3081 
 
3070 Appellate Body Report, EC – Hormones , para.  214. 
3071 Appellate Body Report, EC – Hormones , para.  214. 
3072 Appellate Body Report, EC – Hormones , para.  240. 
3073 Appellate Body Report, EC – Hormones , para.  240. 
3074 Appellate Body Report, EC – Hormones , para.  240. 
3075 Panel Report, Australia – Salmon , para.  8.159. See also Panel  Report , US – Poultry (China) , 
para. 7.277.  
3076 Appellate Body Report, Australia – Salmon , paras.  177-178. 
3077 Appellate  Body Report, Australia – Salmon , para.  161 (citing Panel  Report, Australia – Salmon , 
para. 8.149).  
3078 Appellate Body Report, Australia – Salmon , para. 163 (citing Panel  Report , Australia – Salmon , 
para. 8.150).  
3079 Appellate Body Report, Australia – Salmon , para. 165 (citing Panel  Report , Australia – Salmon , 
para. 8.151).  
3080 Appellate Body Report, Australia – Salmon , para. 164.  
3081 Appellate Body Report, Australia – Salmon , para. 166.  WT/DS524/R  
- 426 - 
  7.1974.   The Appellate Body in Australia – Salmon  also upheld the panel's findings on two of the 
three "additio nal factors".3082 Those two factors were: (i)  "the substantial, but unexplained change" 
in conclusion between the 1995 Draft Report (which recommended allowing the importation of 
ocean -caught Pacific salmon under certain conditions) and the 1996 Final Report  (which 
recommended continuing the import prohibition)3083; and (ii)  the absence of controls on the internal 
movement of salmon products within Australia compared to the prohibition of the importation of 
ocean -caught Pacific salmon.3084 
7.1975.   The panel in US – Poultry (China)  was of the opinion that the presence of all three warning 
signals would not necessarily support a conclusion that the measure results in discrimination or a 
disguised restriction on trade.3085 That panel found that the three  warning signals and two additional 
factors arising from the review of the measure at issue were present, and added that the concept of 
"discrimination" referred "to results of the unjustified imposition of differentially disadvantageous 
treatment"3086, and that, therefore, a determination that discrimination exists would still rest on 
whether the different treatment applied was justified.3087 
7.6.4   The Panel's analysis  
7.6.4.1   Introduction  
7.1976.   As mentioned, the Appellate Body in EC – Hormones  established th at the presence of the 
following  three elements must be shown for there to be a violation of Article 5.5 of the 
SPS Agreement : (i) that the Member imposing the measure complained of has adopted its own 
appropriate levels of protection in several different situati ons; (ii)  that those levels of protection 
exhibit arbitrary or unjustifiable differences ("distinctions" in the language of Article 5.5) in their 
treatment of different situations; and (iii)  that the arbitrary or unjustifiable differences result in 
discrim ination or a disguised restriction on international trade.3088 The Appellate Body noted that 
these elements are cumulative in nature3089, but that all three elements of Article 5.5 need to be 
distinguished and addressed separately.3090 
7.1977.   In light of the above, thi s Panel deems it appropriate to consider these elements, as has 
been done by previous panels.  
7.1978.   Mexico submits that Costa Rica adopted different levels of phytosanitary protection in at 
least three different but comparable situations:  
a. Fresh avocados imported  for consumption from countries where ASBVd is present vis-à-
vis domestic Costa Rican avocados in which ASBVd is likely to be present.3091 
b. Fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing 
countries where ASBVd is prese nt.3092 
 
3082 Appellate Body Report, Australia – Salmon , paras.  177-178. The Appellate Body pointed out that  the 
first "additional factor" was not different from the first warning signal, and should not be taken into account as 
a separate factor. (Appellate Body Report, Australia – Salmon , paras.  167-169).  
3083 Appellate Body Report, Australia – Salmon , para. 170 (citing Panel  Report , Australia – Salmon , 
para. 8.154).  
3084 Appellate Body Report, Australia – Salmon , para. 174 (citing Panel  Report , Australia – Salmon , 
para. 8.155).  
3085 Panel  Report , US – Poultry (China) , para. 7.282.  
3086 Panel  Report , US – Poultry (Chin a), para. 7.291 (citing Panel  Report , Canada – 
Pharmaceutical  Patents , para. 7.94).  
3087 Panel  Report , US – Poultry (China) , para. 7.291.  
3088 Appellate Body Report, EC – Hormones , para. 214.  
3089 Appellate Body Report, EC – Hormones , para. 215.  
3090 Appellate Body Report, EC – Hormones , para. 238. See also Panel  Report , US – Poultry (China) , 
para. 7.222.  
3091 Mexico's second written submission, para. 216.  
3092 Mexico's second written submission, para. 217.  WT/DS524/R  
- 427 - 
  c. Fresh avocados imported for consumption in which ASBVd is present vis-à-vis avocado 
plants for planting.3093 
7.1979.   The Panel will address the three situations identified by Mexico by examining the three 
elements identified by the Appellate Body in EC – Hormo nes. Given that the elements are cumulative 
in nature, for the Panel to find an inconsistency with Article 5.5 of the SPS  Agreement , it must 
examine whether Mexico has proved the presence of all these elements. Consequently, should the 
Panel find that Mexi co has failed to prove any of these elements, Costa Rica will not be deemed to 
have acted inconsistently with Article 5.5.  
7.1980.   The Panel will now consider whether Costa Rica has adopted its own levels of protection in 
different situations.  
7.6.4.1.1   Whether Costa Rica h as adopted its own levels of protection in different 
situations  
7.1981.   With respect to the first two situations that it indicates as comparable , Mexico  submits 
that the measures applied to avocados imported for consumption from countries where ASBVd is 
present vis-à-vis domestic avocados involve comparable situations because both carry the same 
high risk of entry, establishment and spread of ASBVd.3094 
7.1982.   Mexico states that the PRAs categorize  ASBVd as a pest with a high probability of 
introduction, establishment, spread, economic consequences and risk in general, both for the 
symptomless strain and the symptomatic ones. Mexico asserts that the PRAs were not based on 
ISPM Nos. 6 and 4 since the y failed to consider the guidelines for surveillance and the requirements 
for the establishment of PFAs. Therefore, according to Mexico, Costa Rica's declaration of absence 
of ASBVd lacks technical rigour and a scientific methodology, and is not based on t he relevant 
international standards, guidelines and recommendations.3095 
7.1983.   Mexico further asserts that, although Costa Rica states in its PRAs that ASBVd is absent 
from its territory, a memorandum from the CIBCM of the UCR confirmed that ASBVd has been 
present since 2014.3096 Mexico submits that these conditions make it clear that the situations are 
comparable within the meaning of Article 5.5 of the SPS  Agreement , since the absence of ASBVd 
and its disease has not been scientifically proved in either Cost a Rica or Mexico; in other words, 
ASBVd and its disease are present in both. Mexico adds that, in this regard, the risk of establishment 
or spread of ASBVd through the pathway of diversion of the seed of a fresh avocado for consumption 
is the same whether the fruit is domestic or imported.3097 
7.1984.   Mexico transcribes the section of Reports ARP -002-2017 and ARP -006-2016 in which Costa 
Rica defines its ALOP3098, and argues that Costa Rica has adopted different levels of phytosanitary 
protection against the possible ri sks of ASBVd for avocado fruit from other countries and for those 
produced in Costa Rica. Mexico asserts that, in the PRAs, Costa Rica states that the level of protection 
it considers appropriate to adopt is the highest one, without there being any scienti fic justification 
for this ALOP, and that, despite this, the SFE imposed the requirements set out in Resolutions DSFE -
002-2018 and DSFE -003-2018.3099 
7.1985.   Mexico contends that, nevertheless, Costa Rica has been remiss in issuing domestic 
regulations for national avocado producers to ensure that ASBVd does not spread in its territory. 
Mexico states that, at the time of filing its first written submission, there were no regulations aimed 
at avoiding the spread of ASBVd through avocado fruit produced in Costa Rica.3100 
 
3093 Mexico's second written submission, para. 218.  
3094 Mexico's second written submission, para. 216.  
3095 Mexico's first written submission, para. 525.  
3096 Mexico's first written submission, para. 525.  
3097 Mexico's first written submission, para. 525.  
3098 Mexico's first written submission, para. 528 (citing ARP -002-2017, (Exhibit MEX -84), p. 14; 
ARP-006-2016, (Exhibit MEX -85), p. 11).  
3099 Mexico's first written submission, paras.  528-529. 
3100 Mexico's first written submission, para. 530.  WT/DS524/R  
- 428 - 
  7.1986.   According to Mexico, there is a connection between both situations and the resulting ALOPs, 
since at the extremes, on the one hand, there are regulations seeking to avoid the risk of 
introduction, establishment and spread of ASBVd stemming from the possib ility that the seed of an 
avocado infected with ASBVd will be planted in a territory or area that is free from this pest, while 
on the other, there are no regulations aimed at preventing the establishment and spread of 
ASBVd.3101 
7.1987.   Mexico states that, to avoid  the risk of spread, importers of fresh avocados for consumption 
from Mexico are obliged to meet phytosanitary requirements, and the products are subject to 
laboratory analysis upon entry into the country because, according to Costa Rica, they pose a high 
risk for the entry, establishment and spread of ASBVd in Costa Rican territory. Mexico asserts that 
this requirement is not imposed on local avocados and that there are therefore two ALOPs applied 
differently to two comparable situations.3102 
7.1988.   Mexico adds tha t Costa Rica issued Decree No.  41995 -MAG to regulate the use for 
propagation purposes of seeds extracted from fresh fruit imported for consumption from countries 
where ASBVd is present. Mexico contends that, in accordance with the foregoing, Costa Rica imp oses 
regulations only on fruit that is imported on account of the risk allegedly posed by such products.3103 
7.1989.   Mexico states that Costa Rica does not regulate the use of seeds extracted from domestic 
avocados, even though ASBVd is likely to be present in its a vocados, an assumption that follows 
logically from three facts:  (i) the more than 20 years of trade in avocados between countries where 
ASBVd is present; (ii)  the high risk of entry, establishment and spread of ASBVd that, in Costa Rica's 
view, is posed by  the importation of fresh avocados for consumption; and (iii)  the cultural practices 
referred to by Costa Rica.3104 
7.1990.   Mexico maintains that the ALOP applied by Costa Rica to avocados imported from countries 
where ASBVd is present is the highest level of phytos anitary protection, while the ALOP applied to 
avocados produced in its territory is non -existent; in other words, there is complete tolerance.3105 
7.1991.   Costa Rica  submits that Mexico has failed to substantiate its allegations of 
discrimination.3106 Costa Rica asser ts that Mexico's claims are unfounded, because, as the situations 
are not comparable, there is no discrimination.3107 
7.1992.   Costa Rica states  that Mexico's claim under Article 5.5 of the SPS  Agreement  is based 
entirely on the premise that ASBVd is present in Costa Rica, a premise that Costa Rica considers to 
be factually incorrect. In Costa Rica's view, the situations in Mexico and in Costa Rica are not 
comparable, as ASBVd is present in Mexico and it is not in Costa Rica.3108 Costa Rica submits that 
this is why it is not required to extend the same treatment to different situations.3109 
7.1993.   Costa Rica contends that the declaration of absence of ASBVd from Costa Rica was issued 
in accordance with the requiremen ts applicable to this type of declaration; and that Mexico has 
provided no evidence to demonstrate that, contrary to what is reported by the widely recognized 
and most technically authoritative phytosanitary databases, CABI and EPPO, ASBVd is present in 
Costa Rica.3110 
 
3101 Mexico's first written submission, para. 531.  
3102 Mexico's first written submission, para. 532; second written submission, para. 214.  
3103 Mexico's second written submission, para. 214 (citing Regulation governing the use of avocado 
seeds (2019), (Exhibits MEX -174 and CRI -53)). 
3104 Mexico's second written submission, para. 215.  
3105 Mexico's second written submission, para. 221.  
3106 Costa Rica's first written submission, p. 72.  
3107 Costa Rica's first written submission, para. 5.197.  
3108 Costa Rica's first written submission, para. 5.206; response to Panel question No. 61, para. 2; 
second written submission, paras.  3.75 and 3.82 -3.83. 
3109 Costa Rica's second written submission, para. 3.75.  
3110 Costa Rica's first written submission, para. 5.20 7 (citing CABI (2019), (Exhibit CRI -14); EPPO Global 
Database, World distribution (2019), (Exhibit MEX-48); and EPPO Costa Rica (2019), (Exhibits CRI -41 
and MEX-208)). WT/DS524/R  
- 429 - 
  7.1994.   Costa Rica states that, however much Mexico insists otherwise, to date, all laboratory tests 
have come back negative for the presence of ASBVd, which means that the phytosanitary situations 
with respect to ASBVd in Mexico and Costa Rica are not  comparable.3111 
7.1995.   Costa Rica submits that Mexico has failed to provide any evidence whatsoever that 
demonstrates that  ASBVd is present in Costa Rica; and refers to its response to Panel question 
No. 26, in which it states that it refuted, one by one, the pieces of evidence presented by Mexico 
that allegedly prove that ASBVd is present in Costa Rica.3112 
7.1996.   Costa Rica asserts that none of the documents mentioned by Mexico constitutes evidence 
of the presence of ASBVd in Costa Rica, and that the NPPOs of each country are the authorities 
responsible for determining whether a pest is present or absent.3113 Costa Rica maintains that all 
this evidence is firmly at odds with the multiple samples and diagnostic tests carried out by Costa 
Rica, which have so far produced categorically negative results for the presence of ASBVd.3114 
7.1997.   Costa Rica adds that it described in detail its procedure f or the surveillance and control of 
regulated pests and the sampling methodology followed; that it observed that there is a register of 
farms in Costa Rica and described how the geographical selection of sampling areas is made, 
ensuring the randomness and r epresentativeness of the areas chosen, including backyards; that it 
addressed in detail the laboratory techniques that it uses to verify the presence or absence of ASBVd 
in the samples, and indicated that, since 2009, its laboratories have had the capacity  to use RT -PCR, 
the best diagnostic technique for ASBVd in terms of cost -effectiveness and time; and that it set out 
how it took into account ISPM Nos. 6 and 8 in its surveillance work and when determining the 
country's phytosanitary status .3115 
7.1998.   Costa Rica c ontends that Mexico has provided nothing but mere speculation and conjecture, 
and that, in the circumstances, the Panel simply cannot accept Mexico's argument that ASBVd is 
present in Costa Rica, let alone find that the pest is indeed present in Costa Rica n territory.3116 
7.1999.   Costa Rica submits that the phytosanitary situations in Mexico and Costa Rica with respect 
to ASBVd are not comparable, which is why Costa Rica's phytosanitary requirements apply only to 
avocado imports from countries where ASBVd is present.3117 
7.2000.   Costa Rica adds that, without prejudice to the fact that Mexico and Costa Rica are not in 
comparable situations with respect to ASBVd, to ensure that it maintains its phytosanitary status, 
Costa Rica has training programmes for farmers that seek to rais e more awareness of good 
agricultural practices, and domestic regulations prohibiting the sowing of seeds from avocados 
imported from countries with ASBVd.3118 Costa Rica states that it has therefore taken all the 
necessary measures domestically to mitigate as much as possible the risk of losing its phytosanitary 
status as free of ASBVd.3119 
7.2001.   Costa Rica submits that, since ASBVd is present in Mexico and absent from Costa Rica, 
Mexico has failed to demonstrate that the situations in the two countries are comparab le and has 
thus not substantiated its allegation that there are arbitrary or unjustifiable distinctions within the 
meaning of Article 5.5 of the SPS  Agreement .3120 
7.2002.   The Panel  notes that Article 5.5 of the SPS  Agreement  refers to distinctions in the levels 
of sanitary or phytosanitary protection that a Member considers to be appropriate in different 
situations. In this regard, as mentioned above, the first element of Article 5.5 implies that a Member 
 
3111 Costa Rica's first written submission, para. 5.208.  
3112 Costa Rica's second written subm ission, para. 3.84. 
3113 Costa Rica's response to Panel question No. 26, para. 1.  
3114 Costa Rica's response to Panel question No. 26, para. 7. 
3115 Costa Rica's second written submission, para. 3.85.  
3116 Costa Rica's second written submission, para. 3.86.  
3117 Costa Rica's first written submission, para. 5.208; second written submission, para. 3.87.  
3118 Costa Rica's first written submission, para. 5.209; second written submission, para. 3.87.  
3119 Costa Rica's se cond written submission, para. 3.87.  
3120 Costa Rica's first written submission, para. 5.212; second written submission, para. 3.88.  WT/DS524/R  
- 430 - 
  has established different levels of protection which it regar ds as appropriate for itself in differing 
situations.3121 
7.2003.   As noted by the Appellate Body in EC – Hormones , the situations exhibiting differing levels 
of protection cannot be compared unless they are comparable, that is, unless they present some 
common element or elements sufficient to render them comparable.3122 
7.2004.   In light of the foregoing, the Panel will now examine whether the first two situations 
identified by Mexico are different but comparable, and whether Costa Rica has adopted different 
levels of pro tection in these different situations. The first two situations that Mexico considers to be 
different but comparable are fresh avocados imported for consumption from countries where ASBVd 
is present and domestic Costa Rican avocados.  
7.2005.   With regard to the exi stence of different but comparable situations, Mexico submits that 
the risk of the establishment or spread of ASBVd through the diversion of the seed of a fresh avocado 
for consumption is the same whether the fruit is domestic or imported.3123 In Costa Rica' s view, the 
situations in Mexico and in Costa Rica are not comparable, as ASBVd is present in Mexico and it is 
not in Costa Rica.3124 
7.2006.   The Appellate Body in Australia – Salmon  stated that situations can be compared under 
Article 5.5 if these situations involv e either a risk of entry, establishment or spread of the same or 
a similar disease, or a risk of the same or similar associated potential biological and economic 
consequences.3125 
7.2007.   The Panel observes that comparability is associated with the risk in question,  and if the 
situations involve a risk of the same pest or disease, this could be considered sufficient to be able 
to compare them. The Panel notes that fresh avocados for consumption, whether imported from 
countries where ASBVd is present or produced in Co sta Rica, may host ASBVd. Moreover, if it was 
present in an avocado, in the event of introduction, establishment or spread, ASBVd would have the 
same consequences regardless of its origin. Therefore, in the Panel's view, the first two situations 
can be con sidered as different but comparable.  
7.2008.   With regard to whether Costa Rica has adopted different levels of protection in these 
different but comparable situations, Mexico asserts that there are two ALOPs applied differently to 
two comparable situations.3126 Mexico contends that Costa Rica imposes regulations only on fruit 
that is imported on account of the risk allegedly posed by such products3127, and does not regulate 
the use of seeds extracted from domestic avocados, even though ASBVd is likely  to be present in its 
avocados.3128 Mexico maintains that the ALOP applied by Costa Rica to avocados imported from 
countries where ASBVd is present is the highest level of phytosanitary protection, while the ALOP 
applied to avocados produced in its territory  is non -existent; in other words, there is complete 
tolerance.3129 
7.2009.   Costa Rica submits that the phytosanitary situations in Mexico and Costa Rica with respect 
to ASBVd are not comparable, which is why Costa Rica's phytosanitary requirements apply only to 
avocado imports from countries where ASBVd is present.3130 Costa Rica states  that Mexico's claim 
 
3121 Appellate Body Report, EC – Hormones , para. 216.  
3122 Appellate Body Report, EC – Hormones , para. 217. See also Panel  Report , US – Poultry (China) , 
para. 7.226.  
3123 Mexico's first written submission, para. 525.  
3124 Costa Rica's first written submission, para. 5.206; response to Panel question No. 61, para. 2; 
second written submission, paras.  3.75 and 3.83.  
3125 Appellate Body Report, Australia – Salmon , para. 146.  
3126 Mexico's first written submission, para. 532; second written submission, para. 214.  
3127 Mexico's second written submission, para. 214 (citing Regulation governing the use of avocado 
seeds (2019), (Exhibits MEX -174 and CRI -53)). 
3128 Mexico's second written submission, para. 215.  
3129 Mexico's second written submission, para. 221.  
3130 Costa Rica's first written submission, para. 5.208; second written submission, para. 3.87.  WT/DS524/R  
- 431 - 
  under Article 5.5 of the SPS  Agreement  is based entirely on the premise that ASBVd is present in 
Costa Rica, a premise that Costa Rica considers to be factually inco rrect.3131 
7.2010.   With regard to the distinction in the ALOPs, in EC – Hormones , the Appellate Body pointed 
out that, clearly, comparison of several levels of protection deemed appropriate by a Member is 
necessary if a panel's inquiry under Article 5.5 is to procee d at all.3132 
7.2011.   As noted in section 7.5.4 above, for fresh avocados imported for consumption, the Panel 
understands that, with respect to ASBVd, Costa Rica has set a "maximum level of phytosanitary 
protection", which, in Costa Rica's view, means making every reasonable effort to prevent the entry 
of ASBVd into its territory or taking the necessary measures that minimize to the greatest extent 
the risk of entry of the pest, and thus maintain the ASBVd -free phytosanitary status that Cost a Rica 
claims to have.  
7.2012.   In the case of domestic Costa Rican avocados, Costa Rica states that, to ensure that it 
maintains its phytosanitary status, it has training programmes for farmers that seek to raise more 
awareness of good agricultural practices, and domestic regulations prohibiting the sowing of seeds 
from avocados imported from countries with ASBVd.3133 Costa Rica states that it has therefore taken 
all the necessary measures domestically to mitigate as much as possible the risk of losing its 
phytosanit ary status as free of ASBVd.3134 
7.2013.   The Panel observes that the domestic regulations prohibiting the sowing of seeds concern 
only avocados imported from countries with ASBVd; in addition, Costa Rica refers only to training 
programmes for farmers. The Panel ther efore considers that there are no regulations with respect 
to ASBVd that are directly applicable to avocados of Costa Rican origin, in contrast to the 
phytosanitary requirements imposed on avocados imported from countries where ASBVd is present. 
Accordingl y, the Panel considers that there is a difference in the levels of protection that Costa Rica 
deems appropriate for fresh avocados imported for consumption from countries where ASBVd is 
present and for domestic Costa Rican avocados.  
7.2014.   Mexico links the compar ability of the first two situations and the difference in the respective 
ALOPs with the presence or absence of ASBVd in Costa Rica, and states that Costa Rica's declaration 
of absence lacks technical rigour and a scientific methodology, and that ASBVd is p resent in Costa 
Rica. For its part, Costa Rica responds that the situations are not comparable because ASBVd is 
present in Mexico and absent from Costa Rica.  
7.2015.   In the Panel's view, this issue of the presence or absence of ASBVd in Costa Rica pertains 
to the second element of analysis under Article 5.5, i.e. the existence of arbitrary or unjustifiable  
distinctions in the levels that Costa Rica considers to be appropriate in different situations, rather 
than to the first element described above (namely, the exi stence of different levels of protection that 
Costa Rica considers to be appropriate in different but comparable situations).  
7.2016.   The Panel finds that the first two situations, i.e. fresh avocados imported for consumption 
from countries where ASBVd is present and domestic Costa Rican avocados, can be considered as 
different but comparable, and that there is a difference in the levels of protection that Costa Rica 
considers to be appropriate in these situations. The Panel will address the second element of analy sis 
at a later stage.  
7.2017.   Regarding the second two situations that it indicates as comparable , i.e. fresh avocados 
imported from Mexico vis-à-vis avocados imported from certificate -issuing countries where ASBVd 
is present, Mexico  states that another situation that is clearly comparable is the one that results 
from the risk arising between countries where ASBVd is present that export fresh avocados for 
consumption. More specifically, Mexico refers to fresh avocados for consumption from Mexico (which 
 
3131 Costa Rica's first written submission, para. 5.206; response to Panel question No. 61, para. 2; 
second written submission, paras.  3.75 and 3.82 -3.83. 
3132 Appellate Body Report, EC – Hormones , para. 217. See also Panel  Report , US – Poultry (China) , 
para. 7.239.  
3133 Costa Rica's first written submission, para. 5.209; second written submission, para. 3.87.  
3134 Costa Rica's second written submission, para. 3.87.  WT/DS524/R  
- 432 - 
  does not cer tify its exports as free of ASBVd) vis-à-vis fresh avocados for consumption from Peru 
and Guatemala (which do certify their exports as free of ASBVd).3135 
7.2018.   Mexico submits that, while the ALOP applied to all imports of fresh avocados for 
consumption from count ries where ASBVd is present appears to be the same, in reality it is not. 
Mexico asserts that, at the Panel's first meeting with the parties, it was revealed that consignments 
from countries where ASBVd is present that issue the certificates required by Co sta Rica are subject 
only to an initial analysis of 10 consignments consisting of just 62 samples per consignment, and 
that a mere 40% of subsequent consignments of avocados from countries where ASBVd is present 
are analysed to verify that ASBVd is absent,  since 4 out of every 10 consignments are verified 
(through the analysis of 62 fruits per consignment, presumably per container).3136 
7.2019.   For Mexico, based on the above, it is clear that Costa Rica adopts an alleged maximum 
level of protection for imports of fre sh avocados for consumption from countries where ASBVd is 
present that do not certify their consignments as free of ASBVd, whereas for countries where ASBVd 
is present that do issue such certificates, Costa Rica accepts a moderate level of protection that 
could even be classed as low. Mexico states that, although the alleged risk posed by imports of fresh 
avocados for consumption is the same for all countries where ASBVd is present, Costa Rica tolerates 
this risk when it comes to countries that certify thei r consignments as free of ASBVd, by allowing 
the entry of more than 1,000,000 units of fresh avocados and limiting the verification analysis to 
only 620 avocados in the first 10 consignments. Mexico adds that it can even be argued that 
Costa  Rica accepts a  still greater risk, having generated a phytosanitary record, by allowing the 
entry of 2,000,000 avocados and analysing just 248 of them.3137 
7.2020.   Costa Rica  states that Mexico is trying to compare the levels of protection deemed 
appropriate for fresh avocados im ported from Mexico vis-à-vis avocados imported from certificate -
issuing countries where ASBVd is present, which, in Costa Rica's view, is a fictitious situation that 
does not and could not exist.3138 
7.2021.   Costa Rica asserts that if Mexico (or any other country where ASBVd is present) decides 
not to comply with Costa Rica's phytosanitary requirements, its avocados may not be imported into 
the national territory, and there would therefore be no "avocados imported from Mexico". For Costa 
Rica, it is untenab le to claim that it applies a different level of protection to avocados imported from 
countries where ASBVd is present than it does for Mexico.3139 
7.2022.   Costa Rica contends that the fact that Mexico does not wish to comply with the same 
requirements applicable to all countries where ASBVd is present does not mean that Costa Rica's 
levels of protection are different for imports of avocados from countries wh ere ASBVd is present, or 
that, as Mexico argues, Costa Rica has imposed a de facto  ban on Mexican avocados.3140 
7.2023.   According to Costa Rica, Mexico seems to suggest that Costa Rica should impose a more 
restrictive certification and border verification system, wh ile at the same time complaining, in 
relation to its claim under Article 5.6, about the extent to which this system restricts trade. 
Costa  Rica asserts that its border sampling system, established under procedure CFI -PO-16 
(consecutive at first and random thereafter), strikes the right balance between the rigour of border 
checks and the trust generated with respect to NPPOs that repeatedly certify consignments correctly. 
Costa Rica states that the fact that, in some cases, consignments with ASBVd are detect ed despite 
the imposition of certification requirements demonstrates the need for border checks and for the 
application of other measures such as regulations on diversion from intended use.3141 
7.2024.   As the Panel  noted above, Article 5.5 of the SPS  Agreement  refers to distinctions in the 
levels of sanitary or phytosanitary protection that a Member considers to be appropriate in different 
situations; that the first element of Article 5.5 implies that a Member has established different levels 
 
3135 Mexico's s econd written submission, para. 217.  
3136 Mexico's second written submission, para. 222.  
3137 Mexico's second written submission, para. 223. 
3138 Costa Rica's response to Panel question No. 172, para. 210.  
3139 Costa Rica's response to Panel question No. 172, para. 210.  
3140 Costa Rica's response to Panel question No. 172, para. 211.  
3141 Costa Rica's response to Panel question No. 172, para. 211 (referring to Document CFI -PO-16 (2018), 
(Exhibit  CRI-91)). WT/DS524/R  
- 433 - 
  of protection which it r egards as appropriate for itself in differing situations3142; and that situations 
exhibiting differing levels of protection cannot be compared unless they are comparable, that is, 
unless they present some common element or elements sufficient to render them comparable.3143 
7.2025.   In light of the above, the Panel will now examine whether the second two situations 
identified by Mexico are different but comparable, and whether Costa Rica has adopted different 
levels of protection in these different situations. The second  two situations that Mexico considers to 
be different but comparable are fresh avocados imported from Mexico (which does not certify its 
exports as free of ASBVd) and fresh avocados imported from certificate -issuing countries where 
ASBVd is present (Peru a nd Guatemala).  
7.2026.   The Panel observes that the only difference between the situations indicated is whether the 
imports come from a country that does not certify consignments of fresh avocados for consumption 
as free of ASBVd or from a country that does.  
7.2027.   As not ed, regarding the existence of different but comparable situations, the Panel observes 
that comparability is associated with the risk in question, and if the situations involve a risk of the 
same pest or disease, this could be considered sufficient to be a ble to compare them. The Panel 
notes that fresh avocados for consumption, whether imported from certificate -issuing countries 
where ASBVd is present or from countries where ASBVd is present that do not issue certificates, 
may host ASBVd. Moreover, if it wa s present in an avocado, in the event of introduction or spread, 
ASBVd would have the same consequences regardless of its origin. Therefore, in the Panel's view, 
the second two situations can be considered as different but comparable.  
7.2028.   With regard to fresh avocado fruit imported for consumption, both in Report ARP -006-2016 
for fresh avocado fruit for consumption and plants of the same species for planting, from countries 
where ASBVd is present, and in Report ARP -002-2017 for fresh avocado fruit for consumpti on from 
Mexico, the following statements are made:  
On the basis of the information arising from this risk analysis, the application of specific 
phytosanitary measures is recommended. Costa Rica is free of the pest ASBVd, and 
should therefore adopt the nece ssary phytosanitary measures to prevent its entry into 
Costa Rican territory. In this regard, the measures adopted should achieve the 
maximum level of phytosanitary protection .3144 
7.2029.   The two Reports ARP -002-2017 and ARP -006-2016 recommend the same phytosanitar y 
measures for fresh avocado fruit imported for consumption.3145 
7.2030.   Therefore, regarding the level of protection that Costa Rica applies in the second two 
situations identified by Mexico, the Panel notes that Costa Rica establishes the same ALOP that it 
regards  as appropriate with respect to fresh avocado fruit imported for consumption from Mexico as 
it does for the other countries where ASBVd is present, including Peru and Guatemala.  
7.2031.   However, what Mexico disputes is the level of protection that is effectively a chieved by the 
certificates issued by countries where ASBVd is present certifying their consignments as free of 
ASBVd. For Mexico, while the ALOP applied to all imports of fresh avocados for consumption from 
countries where ASBVd is present appears to be t he same, in reality it is not.3146 Mexico submits 
that, for countries where ASBVd is present that do issue such certificates, Costa Rica accepts a 
moderate level of protection that could even be classed as low.3147 
7.2032.   The panel in the dispute Australia – Apples  refrained from an analysis under the first 
element of Article 5.5 and proceeded under the second element, as the claimant contested alleged 
 
3142 Appellate Body Report, EC – Hormones , para. 216.  
3143 Appellate Body Report, EC – Hormones , para. 217. See also Panel  Report , US – Poultry (China) , 
para. 7.226.  
3144 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -84), p. 23. (emphasis added)  
3145 ARP-002-2017, (Exhibit MEX -84), pp. 42 -43; ARP -006-2016, (Exhibit MEX -84), pp. 23 -24. 
3146 Mexico's second written submission, para. 222.  
3147 Mexico's second written submission, para. 223.  WT/DS524/R  
- 434 - 
  differences in the level of protection achieved in practice by the measures applied in comparable 
situations, despite  the respondent's stated ALOP.3148 
7.2033.   Although this Panel has observed that there do not appear to be distinctions in the ALOPs 
that Costa Rica regards as appropriate in the situations of fresh avocados imported from Mexico 
(which does not certify its exports a s free of ASBVd) and fresh avocados imported from 
certificate -issuing countries where ASBVd is present (Peru and Guatemala), the Panel will also 
address Mexico's arguments regarding the alleged existence of arbitrary or unjustifiable differences 
in these second two situations later in its analysis.  
7.2034.   Concerning the third two situations that it indicates as comparable , Mexico  submits that it 
is fresh avocados imported for consumption in which ASBVd is present vis-à-vis avocado plants for 
planting.3149 Mexico states that Costa Rica recognizes that there is a comparable risk from fresh 
avocados imported for consumption from countr ies where ASBVd is present and avocado plants for 
planting. Mexico asserts that this circumstance therefore constitutes another comparable 
situation.3150 
7.2035.   Mexico indicates that this comparable situation is due to the fact that, in its PRAs, Costa  Rica 
wrongly  stated that there is an identical risk, which it describes as high, from fresh avocados 
imported for consumption from countries where ASBVd is present and avocado plants for 
planting.3151 
7.2036.   Mexico asserts that this is because no distinction is made in terms o f the scientific 
information used to justify the risk, even for different pathways.3152 Mexico states  that the literature 
cited in Costa Rica's PRAs indicates that the movement of propagati on material, meaning cuttings, 
shoots and seeds for propagation, is the main cause of the spread of the disease, not fresh fruit for 
consumption, and thus the former pa thway should be attributed a higher risk.3153 Mexico adds that 
Costa Rica uses the same criteria to evaluate the risk arising from both pathways.3154 
7.2037.   Mexico also asserts that Costa Rica considers that fresh fruit imported for consumption and 
plants for plantin g pose the same high risk of entry, establishment and spread of ASBVd. Mexico 
contends that this situation is illogical, since an avocado imported for consumption cannot pose the 
same risk as a plant for planting, and the word "risk" informs the concept of  an ALOP.3155 Mexico 
refers to a "maximum" ALOP vis-à-vis a truly maximum ALOP.3156 
7.2038.   Mexico adds that it is the ALOP that determines the SPS measure to be introduced or 
maintained, not the SPS measure introduced or maintained that determines the ALOP, yet Costa  
Rica appears to have done the opposite; and that the application of the ALOP is clear in this third 
comparable situation.3157 
7.2039.   Mexico submits that, based on the foregoing, Costa Rica applies distinct ALOPs in respect 
of situations that are comparable to each  other.3158 
7.2040.   Costa Rica  states that imports of fresh avocados for consumption and avocado plants for 
planting are two entry pathways for ASBVd and that the situations are therefore comparable.3159 
Costa Rica maintains that Mexico appears to claim that Costa Rica applies the same level of 
protection to fruit imported for consumption as it does to plants imported for planting, but the latter 
 
3148 Panel  Report , Australia – Apples , paras.  7.985 and 7.987.  
3149 Mexico's second written submission, p. 52.  
3150 Mexico's second written submission, para. 218. 
3151 Mexico's response to Panel question No. 173, para. 153.  
3152 Mexico's response to Panel question No. 173, para. 154.  
3153 Mexico's response to Panel question No. 173, para. 155.  
3154 Mexico's response to Panel question No. 173, para. 156. 
3155 Mexico's second written submission, para. 224.  
3156 Mexico's second written submission, p. 53.  
3157 Mexico's second written submission, para. 225.  
3158 Mexico's second written submission, para. 226. 
3159 Costa Rica's response to Panel question No. 17 3, para. 213.  WT/DS524/R  
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  pose a greater phytosanitary risk, and Costa Rica's levels of protection in relation to fresh fruit and 
plants for planting are not identical.3160 
7.2041.   Costa Rica states that the importation of plants for planting poses a greater risk than the 
importation of fresh fruit for consumption, which is clearly reflected in the measures recommended 
in Costa Rica's general PRA for pests. Costa Rica asserts that, in the case of avocados, the PRA 
recommends requiring certification that consignments are free of ASBVd or come from a place of 
production free of ASBVd, or compliance wit h a bilaterally -established systems approach 
programme, verifying the absence of the viroid at the entry point by sampling and testing. Costa 
Rica adds that, conversely, in the case of plants for planting, the recommended measures are far 
stricter, namely that the plants for planting must be certified as having been obtained from mother 
plants that are subject to indexing and analysis at least twice a year, and that the laboratory test 
results must be attached; and that the plants for planting are subject t o post -entry quarantine for a 
period of up to six months, until tests have been carried out that indicate that they are free of 
ASBVd.3161 
7.2042.   Costa Rica contends that, as a result, Mexico's claim that there is no consistency between 
the levels of protection tha t Costa Rica deems appropriate for fresh avocados imported for 
consumption in which ASBVd is present vis-à-vis avocado plants for planting does not stand up.3162 
7.2043.   The Panel  reiterates that Article 5.5 of the SPS  Agreement  refers to distinctions in the 
levels of sanitary or phytosanitary protection that a Member considers to be appropriate in different 
situations; that the first element of Article 5.5 implies that a Member has established different levels 
of protection which it regards as appropriate for itself  in differing situations3163; and that situations 
exhibiting differing levels of protection cannot be compared unless they are comparable, that is, 
unless they present some common element or elements sufficient to render them comparable.3164 
7.2044.   In light of the ab ove, the Panel will now examine whether the third two situations identified 
by Mexico are different but comparable, and whether Costa Rica has adopted different levels of 
protection in these different situations. The third two situations that Mexico consid ers to be different 
but comparable are fresh avocados imported for consumption in which ASBVd is present and avocado 
plants for planting.  
7.2045.   As noted, regarding the existence of different but comparable situations, the Panel observes 
that comparability is ass ociated with the risk in question, and if the situations involve a risk of the 
same pest or disease, this could be considered sufficient to be able to compare them.  
7.2046.   With regard to the pathways through which ASBVd may be introduced into a new territory, 
the expert Pablo Cortese states that the main pathways of introduction result from the transfer or 
entry into the new territory of plants or parts thereof that are infected with the viroid.3165 The expert 
Ricardo Flores Pedauyé comments that the main pathway by  some margin is the use of infected 
propagati on material; in second place are pruning tools; in third place is natural root grafting; and 
in fourth place are seeds (or pollen).3166 The expert Fernando Pliego Alfaro asserts that the 
introduction pathways are through infected seeds or through scions for grafting that are also 
infected.3167 
7.2047.   The Panel notes that both fresh avocados for consumption and avocado plants for planting 
may host ASBVd and transmit it through an infected seed, although, in the case of fresh  avocados 
for consumption, diversion from intended use or spontaneous germination would be required in order 
for transmission to occur. Costa Rica itself considers that imports of fresh avocado fruit for 
 
3160 Costa Rica's response to Panel question No. 172, para. 207.  
3161 Costa Rica's response to Panel question No. 172, para. 207.  
3162 Costa Rica's response to Panel question No. 172, para. 207. 
3163 Appellate Body Report, EC – Hormones , para. 216.  
3164 Appellate Body Report, EC – Hormones , para. 217. See also Panel  Report , US – Poultry (China) , 
para. 7.226.  
3165 Pablo Cortese's response to Panel question No. 26 for the experts.  
3166 Ricardo Flores Pedauyé's re sponse to Panel question No. 26 for the experts.  
3167 Fernando Pliego Alfaro's response to Panel question No. 26 for the experts.  WT/DS524/R  
- 436 - 
  consumption and avocado plants for planting are two entry pathways for ASBVd and that the 
situations are therefore comparable.3168 
7.2048.   In light of the foregoing, and irrespective of the level of risk posed by fresh avocados 
imported for consumption in which ASBVd is present and avocado plants for planting, in the Panel's 
view, the third two situations can be considered as different but co mparable.  
7.2049.   The Panel recalls that Article 5.5 assumes the existence of distinctions in the levels of 
protection that are considered to be appropriate in different but comparable situations. Mexico refers 
to the application by Costa Rica of distinct ALOPs in  these third two situations, but its arguments 
appear to focus on Costa Rica having wrongly decided that these situations involve the same level 
of risk, and that the pathway of plants for planting should be attributed a higher risk, by which 
Mexico seems to suggest that the ALOP for fresh avocados for consumption in which ASBVd is 
present should be lower.  
7.2050.   Mexico considers it illogical and wrong for Costa Rica to have considered that fresh avocado 
fruit for consumption and avocado plants for planting pose t he same high risk, and states that the 
word "risk" informs the concept of an ALOP, but does not explain how the higher risk arising from 
the pathway of plants for planting would imply the existence of distinctions in the levels of protection 
in different b ut comparable situations. Mexico also fails to explain what it means by a "maximum" 
ALOP vis-à-vis a "truly maximum" ALOP.  
7.2051.   Costa Rica, for its part, agrees that the importation of plants for planting poses a greater 
risk than the importation of fresh fruit  for consumption, and submits that this is clearly reflected in 
the measures recommended in Costa Rica's general PRA for pests. According to Costa Rica, its levels 
of protection in relation to fresh fruit and plants for planting are not identical.3169 
7.2052.   As not ed in section 7.5.4  above, in the context of fresh fruit for consumption, the Panel 
understands that, with respect to ASBVd, Costa Rica has set a "maximum level of ph ytosanitary 
protection", which, in Costa Rica's view, means making every reasonable effort to prevent the entry 
of ASBVd into its territory or taking the necessary measures that minimize to the greatest extent 
the risk of entry of the pest, and thus mainta in the ASBVd -free phytosanitary status that Costa Rica 
claims to have.  
7.2053.   With regard to avocado plants for planting, the Panel notes that Report ARP -006-2016 
mentions only that phytosanitary measures should be applied to reduce the risk to acceptable 
levels3170, but does not elaborate on these acceptable levels of risk.  
7.2054.   The Panel notes Costa Rica's assertion that it establishes its ALOP with respect to each 
specific pest and commodity on the basis of the factors that are present in each particular situation, 
and that, in the case of quarantine pests for Costa Rica, the approach is always to adopt the 
measures that minimize to the greatest extent the risk of entry of such pests in order to minimize 
negative trade effects.3171 
7.2055.   In respect of both fresh avocado fruit for consumption and avocado plants for planting, 
Costa Rica considers ASBVd to be a quarantine pest and adopts specific phytosanitary measures. 
Costa Rica adopts the following phytosanitary measures for the importation of regulated articles that 
are vector s of ASBVd, originating from any country in which the pest ASBVd is present:  
a. Fresh avocado fruit ( Persea americana Mill.) for human consumption must meet one of 
the following requirements:  
i. Consignments must be accompanied by an official phytosanitary certificate issued by 
the country of origin, which  indicates, in the section for additional declarations, that 
the fruit is free of ASBVd.  
 
3168 Costa Rica's response to Panel  question No. 172, para. 213.  
3169 Costa Rica's response to Panel question No. 172, para. 207. 
3170 ARP-006-2016, (Exhibit MEX -85), p. 33.  
3171 Costa Rica's response to Panel question No. 85, para. 1.  WT/DS524/R  
- 437 - 
  ii. Consignments must be accompanied by an official phytosanitary certificate issued by 
the cou ntry of origin, which indicates, in the section for additional declarations, that 
the fruit comes from a place of production free of ASBVd (previously recognized by the 
SFE).  
iii. Consignments must adhere to a systems approach programme established bilaterally,  
and which may be implemented, for example, through a work plan.3172 
b. Avocado ( Persea americana Mill.) plants  for planting:  
i. Consignments must be accompanied by an official phytosanitary certificate issued by 
the country of origin , which indicates, in the sect ion for additional declarations, that 
the plants come from mother plants which are free of ASBVd and which are subject to 
indexing and sampling at least twice a year. Laboratory analysis results must be 
attached. After importation, consignments will be sub ject to post -entry quarantine for 
a period of up to six months.3173 
7.2056.   The fact that Costa Rica has not explicitly indicated the ALOP that it considers appropriate 
for avocado plants for planting makes it difficult for the Panel to determine whether there are 
distinctions in the levels of protection that Costa Rica regards as appropriate in these third two 
situations that the Panel found can be considered as different but comparable. Despite the lack of 
clarity and the fact that Costa Rica has applied different measures for fresh avocado fruit for 
consumption and avocado plants for planting, in this Panel's view, Costa Rica appears to consider 
the same or very similar levels of protection to be appropriate in the two situations, as it considers 
ASBVd to be a quar antine pest. Mexico appears to accept the existence of the same or very similar 
levels of protection.  
7.2057.   Since Mexico seems to refer to arbitrary or unjustifiable discrimination owing to the 
existence of the same levels of protection for different risks, the Panel considers it necessary also to 
address Mexico's arguments concerning the second element of analysis, i.e. the existence of 
arbitrary or unjustifiable distinctions in the levels that Costa Rica deems appropriate in different 
situations. The Panel will  address this second element of analysis later in its analysis under 
Article  5.5. 
7.6.4.1.2    Whether Costa Rica's levels of protection exhibit arbitrary or unjustifiable 
distinctions in their treatment of different situations  
7.2058.   With respect to the first two situations  that it indicates as comparable , i.e. fresh avocados 
imported for consumption from countries where ASBVd is present vis-à-vis domestic Costa Rican 
avocados, Mexico submits that there are significant differences in the levels of protection adopted 
by the S FE for fresh avocado fruit from Mexico and for avocados produced in Costa Rica, which may 
lead to the conclusion that this distinction results in arbitrary or unjustifiable discrimination.3174 
7.2059.   Mexico states that the presence of ASBVd in Mexico and its suppos ed absence from Costa 
Rica does not justify the distinction in the ALOP that is reflected in the measures adopted. Mexico 
asserts that Costa Rica acted inconsistently in adopting measures that reflect different levels of 
protection for fresh avocado fruit from Mexico and locally produced fruit. Mexico considers that there 
is no justification for discriminating between these comparable situations, let alone one that is based 
on scientific evidence.3175 For Mexico, the alleged maximum level of protection applie d to fresh 
avocados imported for consumption from countries where ASBVd is present and the complete 
tolerance of risk in the level applied to Costa Rican avocados arising from a lack of regulation has 
no justification whatsoever.3176 
7.2060.   Mexico asserts that, if one considers ASBVd to be present in both territories, distinctions in 
the regulations aimed at fruit from Mexico and the absence of regulation for Costa Rican avocado 
 
3172 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4. See also Re solution DSFE -003-2018, 
(Exhibit  MEX-4), p. 4.  
3173 Resolution DSFE -002-2018, (Exhibit MEX -103), p. 4.  
3174 Mexico's first written submission, para. 534.  
3175 Mexico's first written submission, para. 536.  
3176 Mexico's second written submission, para. 228.  WT/DS524/R  
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  producers point to unjustifiable or arbitrary differences. Mexic o adds that Costa Rica's failure to issue 
a regulation to prevent the spread of ASBVd through fruit produced in Costa Rica is not consistent 
with the level of risk identified in the PRAs themselves. According to Mexico, the SFE states that the 
level of pro tection it considers appropriate to adopt is the highest one, which means that, as there 
is no regulation in Costa Rica, and taking into account that ASBVd is present in several countries 
around the world, there are arbitrary and unjustifiable differences between the levels of protection 
adopted by the SFE.3177 
7.2061.   Mexico contends that, while Costa Rica has argued that its phytosanitary status is free of 
ASBVd and that it is thus unnecessary to apply any regulation to domestic avocados, the truth is 
that ASBVd is  probably present in its territory owing to the high risk of entry, establishment and 
spread stemming from the more than 20 years of trade in avocados with Mexico, Peru, Guatemala 
and the United  States . For Mexico, it was therefore necessary for Costa Rica to apply the same 
measures for imported avocados as for domestic ones.3178 
7.2062.   Mexico asserts that it is revealing to note the words of Costa Rican producer Francisco Fallas 
Serrano, who stated that avocado farming initially developed using seeds of dubious  provenance, 
including seeds obtained from wholesale markets where avocado fruit was sold.3179 For Mexico, the 
fact of not knowing the origin of an avocado seed that may be used for sowing demonstrates that 
there is no justification whatsoever for imposing r egulations only on imported avocados and not on 
domestic ones, bearing in mind that the risk posed by the two situations is comparable. Mexico 
submits that there is therefore discrimination in the level of protection applied with respect to these 
situation s.3180 
7.2063.   Costa Rica  submits that Mexico has failed to substantiate its allegations of 
discrimination.3181 Costa Rica asserts that Mexico's claims are unfounded, because, as the situations 
are not comparable, there is no discrimination.3182 
7.2064.   Costa Rica states  that M exico's claim under Article 5.5 of the SPS  Agreement  is based 
entirely on the premise that ASBVd is present in Costa Rica, a premise that Costa Rica considers to 
be factually incorrect. In Costa Rica's view, the situations in Mexico and in Costa Rica are n ot 
comparable, as ASBVd is present in Mexico and it is not in Costa Rica.3183 Costa Rica submits that 
this is why it is not required to extend the same treatment to different situations.3184 
7.2065.   Costa Rica contends that the phytosanitary situations in Mexico and C osta Rica with respect 
to ASBVd are not comparable, which is why Costa Rica's phytosanitary requirements apply only to 
avocado imports from countries where ASBVd is present.3185 
7.2066.   Costa Rica adds that, without prejudice to the fact that Mexico and Costa Rica a re not in 
comparable situations with respect to ASBVd, to ensure that it maintains its phytosanitary status, 
Costa Rica has training programmes for farmers that seek to raise  more awareness of good 
agricultural practices, and domestic regulations prohibiti ng the sowing of seeds from avocados 
imported from countries with ASBVd.3186 Costa Rica states that it has therefore taken all the 
necessary measures domestically to mitigate as much as possible the risk of losing its ASBVd -free 
phytosanitary status.3187 
7.2067.   The Panel observes that Article 5.5 refers to arbitrary or unjustifiable  distinctions in the 
levels that a Member considers to be appropriate in different situations. In this regard, as mentioned 
 
3177 Mexico's first written submission, para. 537.  
3178 Mexico's second written submission, para. 229.  
3179 Mexico's second written submission, para. 230 (citing Affidavit of Francisco Fallas Serrano (2019), 
(Exhibit  CRI-46)). 
3180 Mexico's second written submission, para. 230.  
3181 Costa Rica's first written submission, p. 72.  
3182 Costa Rica's first written submission, para. 5.197.  
3183 Costa Rica's first written submission, para. 5.206; response to Panel question No. 61, para. 2; 
second written submission, paras.  3.75 and 3.82 -3.83. 
3184 Costa Rica's second written submission, para. 3.75.  
3185 Costa Rica's first written submission, para. 5.208; second written submission, para. 3.87.  
3186 Costa Rica's first written submission, para. 5.209 ; second written submission, para. 3.87.  
3187 Costa Rica's second written submission, para. 3.87.  WT/DS524/R  
- 439 - 
  above, the second element of Article 5.5 implies the existence of  arbitrary or unjustifiable differences 
in the treatment of the different but comparable situations.3188 
7.2068.   The Panel will now examine whether there are arbitrary or unjustifiable differences in the 
treatment of the first two different but comparable situations , i.e. fresh avocados imported for 
consumption from countries where ASBVd is present and domestic Costa Rican avocados.  
7.2069.   According to the Diccionario de la lengua española  of the Real Academia Española, the 
ordinary meaning of the term " injustificable " ("un justifiable") is " que no se puede justificar " ("that 
cannot be justified")3189, where " justificar " ("justify") is defined as " probar algo con razones 
convincentes, testigos o documentos " ("prove something with convincing reasons, witnesses or 
documents")3190; and the ordinary meaning of the term " arbitrario " ("arbitrary") is " sujeto a la libre 
voluntad o al capricho antes que a la ley o a la razón " ("subject to free will or whim rather than to 
law or reason").3191 
7.2070.   This Panel agrees with the panel i n US – Poultry (China) , which was guided by the 
interpretation based on the ordinary meaning of "arbitrary or unjustifiable" from the chapeau  of 
Article XX of the GATT  1994, which the Appellate Body had considered relevant in interpreting the 
same terms in  Article 2.3 of the SPS  Agreement . In that dispute, the panel considered that, in its 
analysis of the second element of Article 5.5, it must focus "on the justification for the distinction 
and whether that justification bears a rational relationship to the  objective of the measures".3192 
7.2071.   As noted by the panel in US – Poultry (China) , given that the SPS measures must 
necessarily be based on scientific principles and not maintained without sufficient scientific evidence, 
the scientific support, or lack thereof, for the difference between the ALOPs the measures seek to 
achieve should have a bearing on an analysis of whether such a difference is arbitrary or 
unjustifiable.3193 
7.2072.   The Panel also considers relevant the point made by the Appellate Body in 
EC – Seal Products  in the context of Article XX of the GATT  1994 that one of the most important 
factors in the assessment of arbitrary or unjustifiable discrimination is the question of whether the 
discrimination can be reconciled with, or is rationally related to , the policy objective with respect to 
which the measure has been provisionally justified under one of the subparagraphs of Article XX.3194 
7.2073.   In light of all the above, this Panel considers that its analysis should focus on the 
justification given for the dist inction and on the reasonableness of this justification. In the Panel's 
view, in the context of Article 5.5 of the SPS  Agreement , the justification for according different 
treatment, or for a distinction in the application of ALOPs in the words of Article 5.5, must be 
reconcilable with the objective of protecting against the risk in question, and must have a scientific 
basis.  
7.2074.   Costa Rica maintains that ASBVd is present in Mexico but not in Costa Rica, and that it is 
thus not required to extend the same treat ment to different situations.3195 Costa Rica adds that its 
phytosanitary requirements apply only to avocado imports from countries where ASBVd is present, 
because the phytosanitary situations in Mexico and Costa Rica with respect to ASBVd are not 
comparable.3196 
 
3188 Appellate Body Report, EC – Hormones , para. 214. See also Panel  Report , US – Poultry (China) , 
para. 7.255.  
3189 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/injustificable . 
3190 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/justificar . 
3191 Diccionario de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/arbitrario . 
3192 Panel  Report , US – Poultry (China) , paras.  7.260 -7.262.  
3193 Panel  Report , US – Poultry (China) , para. 7.263.  
3194 Appellate Body Report, EC – Seal Products , para. 5.306 (citing Appellate Body Reports, 
US – Shrimp , para. 165; and Brazil – Retreaded Tyres , paras.  227, 228 and 232).  
3195 Costa Rica's second written submission, para. 3.75.  
3196 Costa Rica's first written submission, para. 5.208; second written submission, para. 3.87.  WT/DS524/R  
- 440 - 
  7.2075.   The Panel notes that, for Costa Rica, the justification for imposing the measures for 
avocados imported for consumption from countries where ASBVd is present is the difference in 
phytosanitary status that it claims exists, having declared itself as free  of ASBVd. In particular, 
Costa  Rica states that ASBVd is absent throughout its territory, with this being the main reason why 
it has adopted phytosanitary requirements to enable it to maintain this status.3197 
7.2076.   Although Costa Rica states that it has taken al l the necessary measures domestically to 
mitigate as much as possible the risk of losing its ASBVd -free phytosanitary status, the Panel 
reiterates its observation that the domestic regulations prohibiting the sowing of seeds concern only 
avocados imported from countries with ASBVd, which is why the Panel considers that there are no 
regulations with respect to ASBVd that are directly applicable to avocados of Costa Rican origin.  
7.2077.   Mexico considers that there is no justification for discriminating between these  comparable 
situations, let alone a justification based on scientific evidence3198, and bases its argument that there 
are unjustifiable or arbitrary distinctions on the premise that ASBVd is present in Costa Rica.  
7.2078.   As mentioned in the context of the first ele ment of analysis under Article 5.5, Mexico states 
that Costa Rica's declaration of absence lacks technical rigour and a scientific methodology, and is 
not based on the relevant international standards, guidelines and recommendations3199, and asserts 
that ASB Vd is present in Costa Rica. According to Mexico, ASBVd and its disease are present in both 
Costa Rica and Mexico, and the risk of establishment or spread of ASBVd through the pathway of 
diversion of the seed of a fresh avocado for consumption is thus the same whether the fruit is 
domestic or imported.3200 
7.2079.   As the Panel explained, the burden of proof rests upon the party, whether complaining or 
defending , who asserts the affirmative of a particular claim or defence.3201 In this case, Mexico has 
to provide sufficient evidence to prove its assertion that an arbitrary or unjustifiable distinction has 
been made between fresh Mexican and Costa Rican avocados, since they carry the same risk of 
ASBVd. In particular, Mexico bear s the burden of proving that ASBVd is present in Costa Rica.  
7.2080.   The Panel concluded in paragraph 7.310 above that Mexico has failed to demonstrate that 
ASBVd is present in Costa Rica.  
7.2081.   However, Mexico also states that Costa Rica's declaration of absence lacks technical rigour 
and a scientific methodology, and is not based on the relevant international standards, guidelines 
and recommendations.  
7.2082.   In response to the Panel's question as to whether a WTO Member's surveillance system is 
of any relevance to its obligat ions under Article 5.5 of the SPS  Agreement , Mexico states that it is 
relevant, and that a surveillance system makes it possible to confirm that the ALOP established by 
a Member is consistent with the level of verifiable risk using information obtained thr ough the 
surveillance system.3202 
7.2083.   For Mexico, the absence of a clear, transparent and reliable surveillance system would 
result in arbitrary and unjustifiable measures and, by extension, in discriminatory practices or 
disguised restrictions on international trade, particularly if these measures were based on an 
unreliable freedom status.3203 Mexico adds that, if the surveillance system has errors or omissions 
that may vitiate the outcome of the monitoring, there can be no consistency between the ALOP and 
the ri sks that the Member is ostensibly seeking to avoid in order to protect, in this case, the health 
of avocado plantations, given that there would be an arbitrary and unjustifiable distinction made 
between similar situations.3204 
 
3197 Costa Rica's first written submission, para. 5.98.  
3198 Mexico's first written submission, para. 536.  
3199 Mexico' s first written submission, para. 525.  
3200 Mexico's first written submission, para. 525.  
3201 Appellate Body Report, US – Wool Shirts and Blouses , p. 1 4. 
3202 Mexico's response to Panel question No. 171, para. 150.  
3203 Mexico's response to Panel question No. 171, pa ra. 150.  
3204 Mexico's response to Panel question No. 171, para. 151.  WT/DS524/R  
- 441 - 
  7.2084.   Mexico contends that Costa Rica  has implemented a surveillance system based on a series 
of specific surveys that lack representativeness, statistical and methodological rigour, specificity and 
clarity, and on general surveys that are outdated and taken out of context.3205 
7.2085.   Costa Rica, for its part, submits that a WTO Member's surveillance system has no legal 
relevance under Article 5.5 of the SPS  Agreement , which contains no obligation or requirement in 
this respect, and that the surveillance system is, in any case, a factual prerequisite s hared by all 
WTO Members.3206 
7.2086.   Costa Rica states that, in any case, the burden of proving an inconsistency with Article 5.5 
is borne by the complainant, which, if it disagrees with the responding Member about the 
phytosanitary situation in the latter's territory, must provide credible evidence to substantiate its 
claims. Costa Rica adds that this evidence must demonstrate, for example, that the phytosanitary 
situation in the responding Member's territory is identical or similar to the phytosanit ary situation in 
the territory of the complaining Member.3207 Costa Rica asserts that mere theoretical questions about 
a Member's surveillance system do not, however, constitute evidence of a pest's status in the 
Member's territory, and that under no circums tances can Mexico's arguments concerning alleged 
areas for improvement in Costa Rica's surveillance system constitute proof that ASBVd is present in 
Costa Rica.3208 
7.2087.   The Panel notes that in section 7.4.5.1.3  above, it concluded that Costa Rica's assertion in 
Reports ARP -002-2017 and ARP -006-2016 that it was determined that its territory is free of ASBVd 
lacks sufficient reliability , and, therefore , cannot be considered legitimately scientific. In the Panel's 
view, in the circumstances of this case, this finding is relevant to Costa Rica's non -discrimination 
obligation under Article 5.5 of the SPS  Agreement , given that Costa Rica's justification for 
distinguishing between fresh avocados imported for consumption from countries where ASBVd is 
present and domestic Costa Rican avocados is the presence or absence of ASBVd in its territory and 
in the territories of importing countries.  
7.2088.   For Mexico, the absen ce of a clear, transparent and reliable surveillance system would 
result in arbitrary and unjustifiable measures and, by extension, in discriminatory practices or 
disguised restrictions on international trade, particularly if these measures were based on a n 
unreliable freedom status.3209 Mexico states that if the surveillance system has errors or omissions 
that may vitiate the outcome of the monitoring, there can be no consistency between the ALOP and 
the risks that the Member is ostensibly seeking to avoid.3210 
7.2089.   As the Panel noted, its analysis must focus on the justification given for the distinction and 
on the reasonableness of this justification, and the justification for according different treatment, or 
for a distinction in the application of ALOPs in the w ords of Article 5.5 of the SPS  Agreement , must 
be reconcilable with the objective of protecting against the risk in question, and must have a scientific 
basis.  
7.2090.   The Panel observes that Costa Rica makes a distinction in the ALOPs in the two situations 
(fresh  avocados imported for consumption from countries where ASBVd is present and domestic 
Costa Rican avocados) on the basis of an alleged difference in the risk in question stemming from a 
difference in the phytosanitary status of its territory compared to th ose of countries where ASBVd is 
present, a difference that Costa Rica claims exists, having declared itself as free of ASBVd. However, 
in the Panel's view, if Costa Rica's declaration of freedom from ASBVd lacks sufficient reliability , 
Costa Rica's justifi cation cannot be considered to have a scientific basis. In other words, if the 
declaration of freedom from ASBVd cannot be considered legitimately scientific, the distinction 
between the two situations cannot be regarded as scientifically justified.  
 
3205 Mexico's response to Panel question No. 171, para. 152.  
3206 Costa Rica's response to Panel question No. 171, paras. 202 -203. 
3207 Costa Rica's response to Panel question No. 171, para. 204.  
3208 Costa Rica's response to Panel question No. 171, para. 205.  
3209 Mexico's response to Panel question No. 171, para. 150.  
3210 Mexico's response to Panel question No. 171, para. 151. WT/DS524/R  
- 442 - 
  7.2091.   Theref ore, the Panel considers that there are arbitrary or unjustifiable distinctions in the 
treatment of the first two different but comparable situations, i.e. fresh avocados imported for 
consumption from countries where ASBVd is present and domestic Costa Ric an avocados.  
7.2092.   With regard to the second two situations that it indicates as comparable , i.e. fresh avocados 
imported from Mexico vis-à-vis avocados imported from certificate -issuing countries where ASBVd 
is present, Mexico submits that there is also no just ification whatsoever that explains in a coherent 
way why Costa Rica applies a maximum ALOP to fresh avocados imported from Mexico, while the 
ALOP applied to avocados imported from other countries where ASBVd is present that do issue 
certificates is moderat e or low. Mexico asserts that not all consignments certified as ASBVd -free are, 
and that the percentage of consignments that have been tested and have proved positive for ASBVd 
is 26.6%. For Mexico, this means that Costa Rica has accepted the entry and thu s the high risk of 
infected fresh avocados from countries where ASBVd is present, simply because they certify their 
consignments as ASBVd -free. Mexico states that, by contrast, avocados from Mexico, which has 
objected to issuing ASBVd -free certificates, ha ve been prevented from entering the Costa Rican 
market, even though they pose the same risk as avocados from Peru, Guatemala and the 
United  States .3211 
7.2093.   Mexico states that Costa Rica is not consistent in applying its ALOP, and the alleged 
maximum ALOP is not reflected in the facts. Mexico questions how one can justify Costa Rica's 
decision to adopt a random approach to the verification of consignments certified as free of ASBVd; 
and adds that the supposed balance referred to by Costa Rica – between the rigour of border checks 
and the trust generated with respect to NPPOs that certify consignments correctly – results in a 
discriminatory application whose purported justification lacks a rational connection between 
Costa  Rica's ALOP and the trust it places in NPPO s with regard to their certifications.3212 
7.2094.   Mexico submits that this situation has resulted in a large number of avocados entering 
Costa Rica without being analysed through laboratory tests. According to Mexico, Costa Rica 
tolerates the risk involved in the e ntry of potentially ASBVd -infected avocados that are part of the 
first 10 consignments that are not fully analysed, and has accepted the risk posed by the entry of 
the 60% of consignments that are not analysed once a phytosanitary record has been establish ed 
for countries where ASBVd is present.3213 
7.2095.   Mexico further submits that Costa Rica should verify that the area where a consignment of 
avocados comes from is indeed free of ASBVd.3214 Mexico states that Peru acknowledges that ASBVd 
is present in its territory,  and that, despite knowing this, Costa Rica did not verify that the areas 
from which Peruvian avocados are imported were actually free of ASBVd, since Peru does not 
consider it to be a sanitary risk.3215 Mexico asserts that, accordingly, it should be emphasi zed that 
Costa Rica's measures are not in line with its ALOP, and that this results in a de facto  ban on the 
importation of avocados from Mexico, a ban that it does not impose on imports from other Members 
in whose territory ASBVd is present.3216 
7.2096.   Costa Rica  contends that the fact that Mexico does not wish to comply with the same 
requirements applicable to all countries where ASBVd is present does not mean that Costa Rica's 
levels of protection are different for imports of avocados from countries where ASBVd is present, or 
that Costa Rica has imposed a de facto  ban on Mexican avocados.3217 
7.2097.   According to Costa Rica, Mexico seems to suggest that Costa Rica should impose a more 
restrictive certification and border verification system, while at the same time complain ing, in 
relation to its claim under Article 5.6, about the extent to which this system restricts trade. 
Costa  Rica asserts that its border sampling system, established under procedure CFI -PO-16 
(consecutive at first and random thereafter), strikes the righ t balance between the rigour of border 
checks and the trust generated with respect to NPPOs that repeatedly certify consignments correctly. 
Costa Rica states that the fact that, in some cases, consignments with ASBVd are detected despite 
 
3211 Mexico's second written submission, para. 231.  
3212 Mexico's second written submission, para. 232.  
3213 Mexico's second written submission, para. 233.  
3214 Mexico's second written submission, para. 234.  
3215 Mexico's second written submission, paras.  235-236. 
3216 Mexic o's second written submission, para. 236. 
3217 Costa Rica's response to Panel question No. 172, para. 211.  WT/DS524/R  
- 443 - 
  the imposition of certification requirements demonstrates the need for border checks and for the 
application of other measures such as regulations on diversion from intended use.3218 
7.2098.   As the Panel  noted above, Article 5.5 refers to arbitrary or unjustifiable  distinctions in th e 
levels that a Member considers to be appropriate in different situations. In this regard, as also 
mentioned above, the second element of Article 5.5 implies the existence of arbitrary or unjustifiable 
differences in the treatment of the different but com parable situations.3219 
7.2099.   The Panel has observed that there do not appear to be distinctions in the ALOPs that 
Costa  Rica regards as appropriate in the situations of fresh avocados imported from Mexico (which 
does not certify its exports as free of ASBVd) and fresh avocados imported from certificate -issuing 
countries where ASBVd is present (Peru and Guatemala). Nevertheless, in light of Mexico's argument 
that there are differences in the ALOPs achieved in practice, the Panel will address Mexico's 
arguments rega rding whether there are arbitrary or unjustifiable differences in the treatment of the 
second two different but comparable situations, i.e. fresh avocados imported from Mexico (which 
does not certify its exports as free of ASBVd) and fresh avocados importe d from certificate -issuing 
countries where ASBVd is present (Peru and Guatemala).  
7.2100.   As noted, this Panel considers that its analysis should focus on the justification given for 
the distinction and on the reasonableness of this justification. In the Panel's view, in the context of 
Article 5.5 of the SPS  Agreement , the justification for according different treatment, or for a 
distinction in the application of ALOPs in the words of Article 5.5 of the SPS  Agreement , must be 
reconcilable with the objectiv e of protecting against the risk in question, and must have a scientific 
basis.  
7.2101.   The Panel considers that Costa Rica's justification for not allowing the entry of avocados 
from Mexico is the failure by Mexico to comply with Costa Rica's phytosanitary requir ements. In 
other words, the distinctions alleged by Mexico are related to its own refusal to issue ASBVd -free 
consignment certificates.3220 As can be seen from Resolutions DSFE -002-2018 and DSFE -003-2018, 
Mexico is subject to the same measures, that is, the same import conditions, as Peru and 
Guatemala.3221 
7.2102.   The difference between Mexico's situation and that of other countries where ASBVd is 
present with regard to importation flows in this case from the decision of these countries to issue 
ASBVd -free consignment  certificates, and from Mexico's decision not to do so, rather than from the 
treatment accorded by Costa Rica to avocados from these countries and from Mexico. Therefore, the 
Panel does not consider that Costa Rica's measures create an arbitrary or unjusti fiable distinction 
between consignments from countries where ASBVd is present, including Mexico, Peru and 
Guatemala.  
7.2103.   The Panel therefore finds that Mexico has failed to demonstrate that there are arbitrary or 
unjustifiable differences in the treatment of t he second two different but comparable situations, i.e. 
fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing countries 
where ASBVd is present.  
7.2104.   As for the third two situations that it indicates as comparable , i.e. fresh a vocados imported 
for consumption in which ASBVd is present vis-à-vis avocado plants for planting, Mexico  contends 
that the application of the "maximum" ALOP to fresh avocados imported for consumption from 
countries where ASBVd is present and the applicatio n of the maximum ALOP to avocado plants for 
planting is arbitrary and unjustifiable. Mexico asserts that there is no technical or scientific reason 
that would explain why a similar ALOP is applied to two situations that involve clearly different risks. 
Mexico adds that ISPM No.  32 clearly states that the intended use may affect a commodity 's pest 
 
3218 Costa Rica's response to Panel question No. 172, para. 211 (referring to Document CFI -PO-16 
(2018), (Exhibit CRI -91)). 
3219 Appellate Body Report, EC – Hormones , para. 214. See also Panel  Report , US – Poultry (China) , 
para. 7.255.  
3220 Mexico submits that the certification required by Costa Rica is disproportionate, involves 
unnecessary costs, is economically unviable and does not ensure the mitigation of the risk that it supposedly 
faces. (Mexico's opening statement at the first meetin g of the Panel, para. 55).  
3221 See Resolution DSFE -003-2018, (Exhibit MEX -4), p. 4; and Resolution DSFE -002-2018, 
(Exhibit  MEX-103), p. 4.  WT/DS524/R  
- 444 - 
  risk, and that some intended uses of the commodity (e.g. planting) are associated with a higher 
probability of a regulated pest establishing than others.3222 
7.2105.   For Mex ico, it is arbitrary and entirely unjustified for Costa Rica to apply a maximum ALOP 
to a situation that involves a negligible risk, not a risk similar to that posed by the importation of 
avocado plants for planting.3223 
7.2106.   As mentioned, Costa Rica  states that the importation of plants for planting poses a greater 
risk than the importation of fresh fruit for consumption, which is clearly reflected in the measures 
recommended in Costa Rica's general PRA for pests. Costa Rica asserts that, in the case of avocado 
fruit, the PRA recommends requiring certification that the consignments are free of ASBVd or come 
from a place of production free of ASBVd, or compliance with a bilaterally -established systems 
approach programme, verifying the absence of the viroid at the e ntry point by sampling and testing. 
Costa Rica adds that, conversely, in the case of plants for planting, the recommended measures are 
far stricter, namely that the plants for planting must be certified as having been obtained from 
mother plants that are s ubject to indexing and analysis at least twice a year, and that the laboratory 
test results must be attached; and that the plants for planting are subject to post -entry quarantine 
for a period of up to six months, until tests have been carried out that ind icate that they are free of 
ASBVd.3224 
7.2107.   As the Panel  noted above, Article 5.5 refers to arbitrary or unjustifiable  distinctions in the 
levels that a Member considers to be appropriate in different situations. In this regard, as mentioned 
above, the second element of Article 5.5 implies the existence of arbitrary or unjustifiable differences 
in the treatment of the dif ferent but comparable situations.3225 
7.2108.   The Panel observed that Costa Rica appears to consider the same or very similar levels of 
protection to be appropriate for fresh avocados imported for consumption and avocado plants for 
planting, as it considers ASBVd to  be a quarantine pest, yet it applies different measures for fresh 
avocado fruit and avocado plants for planting. The Panel considered that, in the case of th ese two 
situations, it was necessary to address Mexico's arguments concerning the second element o f 
analysis, i.e. the existence of arbitrary or unjustifiable distinctions in the levels that Costa Rica deems 
appropriate in different situations.  
7.2109.   As noted, this Panel considers that its analysis should focus on the justification given for 
the distinction and on the reasonableness of this justification. In the Panel's view, in the context of 
Article 5.5 of the SPS  Agreement , the justification for according different treatment, or for a 
distinction in the application of ALOPs in the words of Article 5.5 of t he SPS  Agreement , must be 
reconcilable with the objective of protecting against the risk in question, and must have a scientific 
basis.  
7.2110.   As point out , in this case, Mexico claims that a similar  (maximum) ALOP has been applied 
without technical or scientific  reason or justification to two situations that, according to Mexico, 
involve clearly different risks , since the situation of fresh fruits for consumption is one of negligible 
risk. 
7.2111.   Costa Rica considers that both situations involve a high risk of entry, es tablishment and 
spread of ASBVd, and attributes a cumulative risk score of 39.63/513226 to fresh avocado fruit for 
consumption3227 in its Report ARP -002-2017, and a cumulative risk score of 42.14/513228 to avocado 
 
3222 Mexico's second written submission, para. 237.  
3223 Mexico's second written submission, para. 238.  
3224 Costa Rica's response to Panel question No. 172, para. 207.  
3225 Appellate Body Report, EC – Hormones , para. 214. See also Panel Report, US – Poultry (China) , 
para. 7.255.  
3226 This figure was corrected by Costa Rica, from (39.63/51) to (39.67/51), in Corrigend a ARP -002-2017 
(2019),  (Exhibit MEX -131). Costa Rica states that "in July 2019, corrigenda to the PRAs were issued, which 
correct certain numerical errors, but do not alter the substance of the original PRAs". (Costa Rica's first written 
submission, fns  62 and 211).  
3227 ARP-002-2017, (Exhibit MEX -84), p. 42; ARP -006-2016, (Exhibit MEX -85), pp. 22 -23. 
3228 This figure was corrected by Costa Rica, from (42.14/51) to (41.5/51), in Corrigenda ARP -006-2016 
(2019),  (Exhibit MEX -123). Costa Rica states that "in July 2019, corrigenda to the PRAs were issued, which 
correct certain numerical errors, but do not alter the substance of the original PRAs". (Costa Rica's first written 
submission, fns  62 and 211).  WT/DS524/R  
- 445 - 
  plants for planting3229 in its Report ARP -006-2016. During the proceedings, Costa Rica has stated 
that the importation of plants for planting poses a greater risk than the importation of fresh fruit for 
consumption, which, in Costa Rica's view, is clearly reflected in the measures recommended in 
Costa  Rica's general PRA for pests.3230 
7.2112.   The Panel considers that Article 5.5 does not prohibit countries from imposing the same 
ALOP for two different risks. The Panel recalls that it is the prerogative of the importing Member to 
establish its ALOP. However, dependin g on the level of risk that each situation involves, the 
measures to address the respective risks for the purpose of achieving the ALOP may differ. In other 
words, if the risk in a situation is higher, the measures may be stricter in order to achieve the g iven 
ALOP, and if the risk in the other situation is lower, the measures may be less stringent in order to 
achieve the same ALOP.  
7.2113.   The Panel notes that, although Costa Rica seems to agree that the importation of plants for 
planting poses a higher risk than the importation of fresh fruit for consumption, it assigns a similar 
risk to the importation of the two products, which is the focus of Mexico's argument. To the extent 
that Mexico's problem lies with the risk that Costa Rica assigned to fresh avocado frui t imported for 
consumption, the Panel has already addressed in detail Costa Rica's assessment of this risk. The 
Panel recalls that it has found flaws in Costa Rica's risk assessment for fresh avocado fruit for 
consumption that had an impact on the high -risk rating.  
7.2114.   With respect to the ALOPs, as mentioned, Costa Rica appears to consider the same or very 
similar levels of protection to be appropriate for fresh avocados imported for consumption and 
avocado plants for planting, which is not prohibited by Articl e 5.5, and although it assigns a similar 
risk to the two products, Costa Rica imposes stricter phytosanitary measures on plants for planting. 
The Panel therefore does not consider this to be a case of the situation envisaged in Article 5.5, i.e. 
different levels of protection for similar risks and arbitrary or unjustifiable distinctions in the 
treatment of similar risks.  
7.2115.   Accordingly, the Panel considers that Mexico has failed to explain the alleged lack of 
justification for the application of the ALOPs that  Costa Rica considers appropriate in the third two 
situations, or the relevance of the difference in the risks of entry, establishment and spread of ASBVd 
posed by the importation of fresh avocado fruit for consumption and of avocado plants for planting 
to Costa Rica's obligation under Article 5.5 to avoid arbitrary or unjustifiable distinctions in the ALOPs 
in these situations.  
7.2116.   The Panel therefore finds that Mexico has failed to demonstrate that there are arbitrary or 
unjustifiable distinctions in the trea tment of the third two different but comparable situations, i.e. 
fresh avocados imported for consumption in which ASBVd is present vis-à-vis avocado plants for 
planting.  
7.6.4.1.3   Whether there is discrimination or a disguised restriction on international trade  
7.2117.   In the above analysis of the situations identified by Mexico as comparable, the Panel 
concluded that Mexico has failed to demonstrate that there are arbitrary or unjustifiable distinctions 
in the levels that Costa Rica regards as approp riate in different situations with respect to two of the 
three pairs of situations, i.e. fresh avocados for consumption from Mexico vis-à-vis fresh avocados 
for consumption from certificate -issuing countries; and fresh avocados for consumption vis-à-vis 
avocado plants for planting. Considering that the elements of the analysis under Article 5.5 of the 
SPS Agreement  are cumulative, and that the Panel determined that Mexico has failed to demonstrate 
the first two elements, the Panel would not have to continue  the analysis with regard to these two 
pairs of situations.  
7.2118.   However, the Panel concluded that there are unjustifiable differences in the treatment of 
the first two situations, i.e. fresh avocados imported for consumption from countries where ASBVd 
is prese nt vis-à-vis domestic Costa Rican avocados, and the Panel will continue its analysis of these 
two situations by examining whether there is discrimination or a disguised restriction on international 
trade, which constitutes the third element of analysis und er Article 5.5 of the SPS  Agreement . 
Moreover, in order to be exhaustive in its analysis, the Panel will address Mexico's arguments 
 
3229 ARP-006-2016, (Exhibit MEX -85), p. 33.  
3230 Costa Rica's re sponse to Panel question No. 172, para. 207.  WT/DS524/R  
- 446 - 
  concerning the existence of discrimination or a disguised restriction on international trade in relation 
to the other two pairs of situations, in particular its arguments with regard to the warning signals 
related to this element of the analysis under Article 5.5.  
7.2119.   Mexico  submits that the arbitrary and unjustifiable differences between the levels of 
protection result in discri mination and a disguised restriction on international trade.3231 
7.2120.   With respect to the first two situations that it indicates as comparable , i.e. fresh avocados 
imported for consumption from countries where ASBVd is present vis-à-vis domestic Costa Rican 
avoca dos, Mexico states that the level of protection established through the measures is 
discriminatory, since fresh avocados from Costa Rica are not subjected to the same treatment.3232 
7.2121.   Mexico asserts that the Costa Rican authorities did not develop the PRAs wit h sufficient 
scientific evidence to claim that their measures are based on an adequate risk assessment, which 
means that the measures are being applied in a manner that discriminates between two situations, 
without there being scientific evidence to justif y the existence of a different ALOP.3233 Mexico adds 
that Costa Rica has used measures allegedly aimed at protecting plant life or health to unjustifiably 
restrict the trade in fresh avocado fruit in order to protect its domestic industry.3234 
7.2122.   Mexico contends that, in the three pairs of situations that it indicates as comparable , there 
is the presence of the three warning signals that indicate whether the application of distinctions in 
the appropriate levels of protection in different situations results in disc rimination or a disguised 
restriction on international trade.3235 
7.2123.   Mexico refers to its arguments concerning the arbitrary and unjustifiable nature of the 
application of Costa Rica's ALOPs in the three different but comparable situations, and notes the 
presen ce of the first warning signal , which demonstrates that Costa Rica's measure constitutes a 
disguised restriction on international trade.3236 
7.2124.   Mexico submits that the second warning signal  is also present, and points to the rather 
substantial difference in the  levels of protection.  
7.2125.   Regarding the first two situations that it indicates as comparable, i.e. fresh avocados 
imported for consumption from countries where ASBVd is present vis-à-vis domestic Costa Rican 
avocados, Mexico argues that the ALOPs applied to f resh avocados imported for consumption from 
countries where ASBVd is present and to domestic Costa Rican avocados are, respectively, maximum 
and complete tolerance, and thus, according to Mexico, there is a huge difference between the two 
ALOPs.3237 
7.2126.   With res pect to the second two situations that it indicates as comparable, i.e. fresh 
avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing countries where 
ASBVd is present, Mexico submits that the extent of the discrepancy between the  levels of protection 
is significant, since the application of a maximum ALOP and a moderate or low ALOP implies a 
considerable degree of difference. Mexico states that these ALOPs are reflected in the fact that, on 
the one hand, Costa Rica prevents the en try of fresh avocados imported for consumption from 
Mexico, and on the other, it allows the entry of fresh avocados for consumption from countries where 
ASBVd is present, subject merely to the issuance of a certificate that has been proved not to be 
correc t and that allows the entry of 10 full containers of avocados, with the only limitation being 
that 620 of the avocados are analysed. For Mexico, if ASBVd is not detected in the fruit that is 
analysed, the situation is aggravated, because permission is give n for the entry of 20 containers of 
avocados, with the analysis this time being limited to 496 avocados. Mexico asserts that this means 
that Costa Rica applies a moderate or low ALOP to avocados from countries with ASBVd that issue 
 
3231 Mexico's first written submission, p. 136; second written submission, p. 56.  
3232 Mexico's first written submission, para. 539.  
3233 Mexico's first written submission, para. 539.  
3234 Mexico's first written submission,  para. 540.  
3235 Mexico's second written submission, paras.  239-244. 
3236 Mexico's second written submission, para. 240.  
3237 Mexico's second written submission, para. 241.  WT/DS524/R  
- 447 - 
  ASBVd -free consignment c ertificates and a maximum ALOP to those that do not issue certificates, 
even though the risk in the two situations is the same.3238 
7.2127.   As for the third two situations that it indicates as comparable, i.e. fresh avocados imported 
for consumption in which ASBVd i s present vis-à-vis avocado plants for planting, Mexico submits 
that the degree of difference, or the extent of the discrepancy, in the levels of protection is also 
considerable. Mexico asserts that, although Costa Rica's ALOP for fresh fruit imported for 
consumption from countries where ASBVd is present is the same as that for avocado plants for 
planting, there is ultimately an inconsistency. For Mexico, the risk posed by the importation of fresh 
fruit for consumption with regard to the entry, establishmen t and spread of ASBVd is negligible or 
even zero, while an avocado plant imported for the sole and unchanging purpose of planting carries 
a high risk of transmission of ASBVd. Mexico states that, despite the inconsistency in Costa Rica's 
risk rating, the t wo scenarios outlined would entail the application of different ALOPs, but this has 
not happened because Costa Rica appears to have determined its ALOP on the basis of the measures 
and not the other way around, as required by the regulations.3239 
7.2128.   Mexico furt her submits that Costa Rica's measures lack scientific justification and were not 
based on a risk assessment appropriate to the circumstances, rendering them inconsistent with 
Article 5.1 of the SPS  Agreement . Mexico asserts that, therefore, the third warn ing signal  is present 
and it can be seen that there is a disguised restriction on international trade.3240 
7.2129.   Costa Rica  reiterates that Mexico has failed to demonstrate that Costa Rica is acting 
inconsistently with Article 5.5 of the SPS Agreement.3241 
7.2130.   The Panel  notes that the third element of the analysis under Article 5.5 involves examining 
whether the arbitrary or unjustifiable differences result in discrimination or a disguised restriction 
on international trade.3242 
7.2131.   In this regard, as mentioned, the Appellate Body in EC – Hormones  understood this element 
to be referring to the measure embodying or implementing a particular level of protection as 
resulting, in its application, in discrimination or a disguised restriction on international trade3243, and 
that a panel must analyse the circumstances of each individual case.3244 
7.2132.   Mexico refers to the three "warning signals" that the measure may constitute a disguised 
restriction on international trade, as identified by the panel in Australia – Salmon . 
7.2133.   The three signals  identified were:  
a. The arbitrary  or unjustifiable character of differences in levels of protection3245; 
b. The rather  substantial difference  in levels of protection3246; and  
c. The inconsistency  of the SPS measure at issue with Articles 5.1 and 2.2 of the SPS 
Agreeme nt.3247 
7.2134.   With respect to the first warning signal, i.e. the arbitrary or unjustifiable character of 
differences in levels of protection, in the second and third pairs of situations, i.e. fresh avocados for 
consumption from Mexico vis-à-vis fresh avocados for consumption from certificate -issuing 
 
3238 Mexico's second written submission, para. 242.  
3239 Mexico's second written submission, para.  243. 
3240 Mexico's second written submission, para. 244.  
3241 Costa Rica's response to Panel question No. 172, para. 212.  
3242 Appellate Body Report, EC – Hormones , para. 214.  
3243 Appellate Body Report, EC – Hormones , para. 214.  
3244 Appellate Body Report, EC – Hormone s, para. 240.  
3245 Appellate Body Report, Australia – Salmon , para. 161 (citing Panel  Report , Australia – Salmon , 
para. 8.149).  
3246 Appellate Body Report, Australia – Salmon , para. 163 (citing Panel  Report , Australia – Salmon , 
para. 8.150).  
3247 Appellate Body Report, Australia – Salmon , para. 165 (citing Panel  Report , Australia – Salmon , 
para. 8.151).  WT/DS524/R  
- 448 - 
  countries, and fresh avocados for consumption vis-à-vis avocado plants for planting, the Panel 
concluded that Mexico has failed to demonstrate that there are arbitrary or unjustifiable distinctions 
in the levels that Co sta Rica regards as appropriate in different situations.  
7.2135.   By contrast, with respect to the first two situations, i.e. fresh avocados imported for 
consumption from countries where ASBVd is present vis-à-vis domestic Costa Rican avocados, the 
Panel concluded that there are unjustifiable differences in the treatment of these situations, bearing 
in mind its conclusion that Costa Rica's determination of freedom from ASBVd is not legitimately 
scientific, which means that the distinction between the two situations cannot be regarded as 
scientifically justified.  
7.2136.   Regarding the second warning signal, i.e. the rather substantial difference in levels of 
protection, the Panel notes that the only two situations identified by Mexico in which there are rather 
substantial dif ference s in levels of protection are the first two situations , i.e. fresh avocados imported 
for consumption from countries where ASBVd is present and domestic Costa Rican avocados. This is 
because there are no regulations with respect to ASBVd that are dir ectly applicable to avocados of 
Costa Rican origin, in contrast to the phytosanitary requirements imposed on avocados imported 
from countries where ASBVd is present.  
7.2137.   With regard to the last warning signal, i.e. the inconsistency of the SPS measure at issue  
with Articles 5.1 and 2.2 of the SPS Agreement, this Panel notes that, in section 7.4.8  above, it 
concluded that Costa Rica has acted inconsistently with Articles 5 .1, 5.2 and 5.3 of the SPS 
Agreement, by failing to ensure that its phytosanitary measures are based on an assessment, as 
appropriate to the circumstances, of the risks to plant life or health, and failing to take into account 
available scientific evidence  and the prevalence of specific diseases or pests, or the relevant 
economic factors in Article 5.3. The Panel also concluded that Costa Rica has acted inconsistently 
with Article 2.2 of the SPS Agreement, by failing to ensure that its phytosanitary measure s were 
based on scientific principles and were not maintained without sufficient scientific evidence.  
7.2138.   In light of the foregoing, the Panel is of the view that, in the first two situations, the three 
warning signals of a disguised restriction on international trade that were identified in Australia  – 
Salmon  can be detected.  
7.2139.   The foregoing is sufficient, under the circumstances of this dispute, for the Panel to find 
that, in respec t of the first two situations that Mexico has indicated as comparable, i.e. fresh 
avocados imported for consumption from countries where ASBVd is present vis-à-vis domestic 
Costa  Rican avocados in which ASBVd is likely to be present, there are arbitrary or  unjustifiable 
distinctions in the levels of protection that Costa Rica considers to be appropriate in different 
situations, which result in discrimination or a disguised restriction on international trade, and that, 
therefore, Costa Rica has acted inconsi stently with Article 5.5 of the SPS Agreement.  
7.2140.   With regard to the second and third two situations that Mexico has indicated as comparable, 
i.e. fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing 
countries where ASBVd i s present, and fresh avocados imported for consumption in which ASBVd is 
present vis-à-vis avocado plants for planting, the Panel finds that Mexico has failed to demonstrate 
that there are arbitrary or unjustifiable distinctions in the levels of protection  that Costa Rica 
considers to be appropriate in different situations, which result in discrimination or a disguised 
restriction on international trade.  
7.6.4.2   Conclusion with respect to Article 5.5 of the SPS Agreement  
7.2141.   The Panel recalls that, in its analyses of t he three situations identified by Mexico as 
comparable, it concluded that:  
a. In respect of the first two situations that Mexico has indicated as comparable, i.e. fresh 
avocados imported for consumption from countries where ASBVd is present vis-à-vis 
domestic  Costa Rican avocados, there are arbitrary or unjustifiable distinctions in the 
levels of protection that Costa Rica considers to be appropriate in different situations, 
which result in discrimination or a disguised restriction on international trade. Ther efore, 
Costa Rica has acted inconsistently with Article 5.5 of the SPS Agreement.  WT/DS524/R  
- 449 - 
  b. With regard to the second two situations that Mexico has indicated as comparable, i.e. 
fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuin g 
countries where ASBVd is present, Mexico has failed to demonstrate that there are 
arbitrary or unjustifiable distinctions in the levels of protection that Costa Rica considers 
to be appropriate in different situations, which result in discrimination or a  disguised 
restriction on international trade.  
c. In respect of the third two situations that Mexico has indicated as comparable, i.e. fresh 
avocados imported for consumption in which ASBVd is present vis-à-vis avocado plants 
for planting, Mexico has failed t o demonstrate that there are arbitrary or unjustifiable 
distinctions in the levels of protection that Costa Rica considers to be appropriate in 
different situations, which result in discrimination or a disguised restriction on international 
trade.  
7.6.5   Legal st andard under Article  2.3 of the SPS  Agreement  
7.2142.   In this section, the Panel will explain how other panels and the Appellate Body have 
interpreted Article 2.3 of the SPS Agreement. The Panel will be guided by these interpretations to 
the extent that they are relevant to its analysis.  
7.2143.   The panel in Russia – Pigs (EU)  noted that Article 2.3 of the SPS Agreement contains two 
primary obligations set forth in each of the two sentences of that Article.3248 
7.2144.   The first sentence of Article 2.3 of the SPS Agreement requires Members to ensure that 
their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between 
Members where identical or similar conditions prevail, including between their own territory and that 
of other Memb ers. The second sentence of Article 2.3 requires that SPS measures shall not be applied 
in a manner which would constitute a disguised restriction on international trade.  
7.2145.   With regard to the first sentence of Article 2.3, the Appellate Body noted in 
Austral ia – Salmon  that discrimination between Members, including their own territory and that of 
other Members within the meaning of Article 2.3, first sentence, can be established by following the 
complex and indirect route worked out and elaborated by Article 5.5. However, this route is not the 
only route leading to a finding that an SPS measure constitutes arbitrary or unjustifiable 
discrimination according to Article 2.3, first sentence.3249 
7.2146.   The Appellate Body noted in India – Agricultural Products  and Korea – Radionuclides  that a 
complainant bears the burden of establishing that a measure is inconsistent with Article 2.3, first 
sentence.3250 
7.2147.   Previous panels have pointed out that the obligation under the first sentence of Article 2.3 
consists of three elements, na mely: (i)  the measure discriminates between the territories of 
Members other than the Member imposing the measure, or between the territory of the Member 
imposing the measure and that of another Member; (ii)  the discrimination is arbitrary or 
unjustifiable ; and (iii)  identical or similar conditions prevail in the territory of the Members 
compared.3251 
7.2148.   In India – Agricultural Products , the Appellate Body observed that the three elements 
identified in the first sentence of Article 2.3 inform each other, such th at the analysis of each element 
cannot be undertaken in strict isolation from the analysis of the other two elements.3252 The Appellate 
Body considered that the analytical approach adopted by a panel may vary as a function of, inter alia, 
the measure at issu e, the nature of the alleged discrimination, and the particular circumstances of 
 
3248 Panel  Report s, Russia – Pigs (EU) , para.  7.1296; and India – Agricultural Products , para.  7.388.  
3249 Appellate Body Report, Australia – Salmon , para. 252.  
3250 Appellate Body Reports, India – Agricultural Products , para.5.260; and Korea – Radionuclides , 
para. 5.58. 
3251 Panel  Report s, Russia – Pigs (EU) , para. 7.1297; India – Agricultural Products , para. 7.389; 
Australia  – Salmon ( Article 21.5 – Canada) , para. 7.111; and US – Poultry (China) , para. 7.317.  
3252 Appellate Body Report, India – Agricultural Products , para. 5.261.  WT/DS524/R  
- 450 - 
  a case.3253 In that connection, the Appellate Body explained that identifying the relevant conditions, 
and assessing whether they are identical or similar, will often provide a good starting point.3254 
7.2149.   The Appellate Body in Korea – Radionuclides  pointed out that the relevant conditions under 
Article 2.3 must be identified subject to the particular nature of the measure and the specific 
circumstances of the case.3255 The Appellate Bod y noted that conditions relating to the particular 
objective pursued and risks addressed by the SPS measure in question are relevant for the analysis 
of whether identical or similar conditions prevail between Members.3256 The Appellate Body explained 
that th e analysis under Article  2.3 entails consideration of all relevant conditions in different 
Members, including territorial conditions that may not yet have manifested in products but are 
relevant in light of the regulatory objective and specific SPS risks a t issue.3257 
7.2150.   For example, in previous disputes, the presence or incidence of a disease in a Member's 
territory has been considered a relevant condition for the purposes of the analysis under the first 
sentence of Article 2.3 of the SPS Agreement.3258 
7.2151.   With rega rd to discrimination, the Appellate Body pointed out in Australia – Salmon  that 
the first sentence of Article 2.3 of the SPS Agreement takes up obligations similar to those arising 
under Article I:1 and Article III:4 of the GATT  1994 and incorporates part of the chapeau  to Article 
XX of the GATT  1994.3259 
7.2152.   The panel in US – Animals  also considered that the chapeau  of Article XX of the GATT  1994 
provides a useful context for the interpretation of the terms of Article 2.3, noting a number of 
similarities between the chapeau  of Article XX of the GATT  1994 and Article 2.3 of the SPS 
Agreement, and the reference in the preamble of the SPS Agreement t o Article XX(b) of 
the GATT  1994.3260, 3261 
7.2153.   Similarly, the panel in Russia – Pigs (EU)  stated that it drew guidance, inter alia , for how 
the term "discrimination" had been interpreted in the chapeau  of Article XX of the GATT  1994.3262 
With regard to whether disc rimination is arbitrary or unjustifiable, that panel noted that, in 
Brazil  – Retreaded Tyres,  the Appellate Body focused its analysis on whether the measure at issue 
bore a "rational connection to" its stated objective of protecting human life or health un der Article 
XX(b).3263 That panel added that this approach was adopted by the panels in US – Poultry (China) , 
India – Agricultural Products  and US – Animals  in their analysis under Article 2.3 of the SPS 
Agreement.3264 
 
3253 Appellate Body Report, India – Agricultural Products , para. 5.261.  
3254 Appellate Body Report, India – Agricultu ral Products , para. 5.261. See also Appellate  Body Report, 
Korea  – Radionuclides , para.  5.58. 
3255 Appellate  Body Report, Korea – Radionuclides , para.  5.59. 
3256 Appellate  Body Report, Korea – Radionuclides , para.  5.59. 
3257 Appellate  Body Report, Korea – Radionucl ides, paras.  5.63-5.65. 
3258 Expressing doubts as to whether "identical or similar conditions" prevail in the territories of the 
claimant and the respondent, the panel in Australia – Salmon (Article 21.5 – Canada)  noted the substantial 
difference in the statu s of the diseases in question. (Panel Report, Australia  – Salmon  (Article 21.5 – Canada) , 
para. 7.113).  
The panel in India – Agricultural Products  considered that the relevant "conditions" for its analysis under 
Article  2.3 referred to the presence of notifiable avian influenza (NAI) in the respondent or another Member, 
because that was the relevant distinction that triggered the import prohibition in that case. (Panel  Report , India 
– Agricultural Products , paras.  7.461 -7.463).  
The panel in Russia – Pigs (EU)  agreed that the relevant conditions for the purposes of a given analysis 
in the first sentence of Article 2.3 may be the presence of a disease within a territory and the concomitant risk 
associated with that disease. (Panel  Report , Russia – Pigs (EU ), para. 7.1311).  
3259 Appellate Body Report, Australia – Salmon , paras.  250-251. 
3260 The last recital of the preamble of the SPS Agreement states that the Members of the WTO desire to 
"elaborate rules for the application of the provisions of GATT  1994 which re late to the use of sanitary and 
phytosanitary measures, in particular the provisions of Article XX(b)", and the footnote to this recital specifies 
that "[i]n this Agreement, reference to Article  XX(b) of includes also the chapeau  of that Article".  
3261 Panel  Report , Russia – Pigs (EU) , para. 7.1316 (citing Panel  Report , US – Animals , para. 7.570).  
3262 Panel  Report , Russia – Pigs (EU) , para. 7.1313.  
3263 Panel  Report , Russia – Pigs (EU) , para. 7.1321 (citing Appellate Body Report, Brazil – 
Retreaded  Tyres , para. 227 ). 
3264 Panel  Report , Russia – Pigs (EU) , para. 7.1321 (citing Panel  Report s, US – Poultry (China) , 
para. 7.261; and India – Agricultural Products , para. 7.429). See also Panel  Report , US – Animals , para. 7.574.  WT/DS524/R  
- 451 - 
  7.2154.   The panel in US – Animals  considered applicable to the concept of discrimination in the 
context of Article 2.3 the reasoning of the Appellate Body in the context of Article  5.5 of the 
SPS Agreement, in the sense that one of the "warning signals" pointing to the existence of 
discri mination was the "rather substantial difference" between the import prohibition on the relevant 
products originating in the territory of one Member and the tolerance for imports of another product, 
presenting a similar level of risk, originating in the ter ritory of another Member.3265 The panel in 
Russia – Pigs (EU)  referred to the finding of the Appellate Body in the context of Article 5.5 that the 
measure at issue was arbitrarily and unjustifiably discriminatory because it treated differently two 
products t hat presented the same level of risk.3266 
7.2155.   Moreover, the Appellate Body in India – Agricultural Products  and the panel in Russia  – Pigs 
(EU) observed that, notwithstanding certain similarities between the language of Article 2.3 of the 
SPS Agreement and that of the chapeau  of Article XX of the GATT  1994, these provisions are of a 
different legal character, given that Article 2.3. sets out an obligation and is not expressed in the 
form of an exception, and they require a different allocation in the applicable b urden of proof.3267 
7.2156.   With respect to the obligation contained in the second sentence of Article 2.3, the panel in 
India – Agricultural Products  referred to the Appellate Body's observations regarding what factors 
might indicate that a Member maintains a disgu ised restriction on international trade within the 
context of Article 5.5 of the SPS Agreement.3268 
7.2157.   The same panel observed that the Appellate Body had said, in the context of Article XX of 
the GATT  1994, that disguised restriction, whatever else it covers, may properly be read as 
embracing restrictions amounting to arbitrary or unjustifiable discrimination in international trade 
taken under the guise of a measure formally within the terms of an exception listed in Article XX.3269 
Regarding the similarities between Article XX of the GATT  1994 and Article 2.3 of the SPS Agreement, 
the panel considered that "disguised restriction on international trade" may similarly be read to 
encompass measures that constitute arbitrary or unjustif iable discrimination.3270 
7.2158.   Turning to the relationship between Articles 2.3 and 5.5 of the SPS Agreement, the 
Appellate Body pointed out in EC – Hormones  that Article 2.3 is an important part of the context of 
Article 5.5, and that, when read together with Ar ticle 2.3, Article 5.5 "may be seen to be marking 
out and elaborating a particular route leading to the same destination" set out in Article 2.3.3271 The 
Appellate Body in India – Agricultural Products  also emphasized the "close link" that exists between 
Articles 2.3 and 5.5 of the SPS Agreement.3272 
7.2159.   The Appellate Body pointed out in Australia – Salmon  that a finding of violation of Article 
5.5 will necessarily imply a violation of Article 2.3, first sentence, or Article 2.3, second sentence.3273 
The panels in US – Poultry (China)  and India – Agricultural Products  followed the Appellate Body's 
assertion.3274 In Australia – Salmon , the Appellate Body noted, however, that a violation of Article 
5.5 is not the only route leading to a finding that an SPS measure constit utes arbitrary or 
unjustifiable discrimination according to Article 2.3, first sentence.3275 
 
3265 Panel  Report , US – Animals , para. 7.585 (citing Appellate Body Report, Australia – Salmon , 
para. 163; and Panel  Report , US – Poultry (China) , para. 7.285).  
3266 Panel  Report , Russia – Pigs (EU) , para. 7.1322 (citing Appellate Body Report, Australia – Salmon , 
para. 158).  
3267 Panel  Report , Russia – Pigs (EU) , para. 7.1319; and Appellate Body Report, India – 
Agricultural  Products , para. 5.260.  
3268 Panel  Report , India – Agricultural Products , para. 7.475.  
3269 Panel  Report , India – Agricultural Products , para.  7.476 (citing Appellate Body Report,  
US – Gasoline , p. 25). 
3270 Panel  Report , India – Agricultural Products , para. 7.476.  
3271 Appellate Body Report, EC – Hormones , para.  212. See also Appellate Body Report, EC – Hormones , 
para. 238. 
3272 Appellate Body Report, India – Agricultural Products , para. 5.12 (citing Appellate Body Report, 
EC – Hormones , para. 212).  
3273 Appellate Body Report, Australia – Salmon , para. 252.  
3274 See Panel  Report s, US – Poultry (China) , para. 7.319; and India – Agricultural Products , fn 888 
(citing Panel  Report , Australia  – Salmon , para. 8.109; and Appellate Body Report, Australia – Salmon , 
para. 178).  
3275 Appellate Body Report, Australia – Salmon , para. 252.  WT/DS524/R  
- 452 - 
  7.2160.   Furthermore, the panel in Russia – Pigs (EU)  pointed out that Article 2.3 is of a more general 
character than Article 5.5, and that a violation of Article 2.3. will not necessarily imply a violation of 
Article 5.5.3276 
7.6.6   The Panel's analysis  
7.2161.   Mexico  submits that Costa Rica's phytosanitary measures are inconsistent with Article 2.3 
of the SPS Agreement.3277 
7.2162.   Mexico contends that WTO case law has determined that, by referring t o disguised 
restrictions on international trade, Article 2.3 is very closely linked to Article 5.5 of the SPS 
Agreement. Mexico states that it has demonstrated convincingly that Costa Rica's measures 
constitute a violation of Article 5.5 of the SPS Agreeme nt, which is the most complex route for 
demonstrating discrimination, signifying that Costa Rica's measures represent a disguised restriction 
on international trade within the meaning of Article 2.3 of the same Agreement and are inconsistent 
with it.3278 
7.2163.   Mexico adds that its claim under Article 2.3 refers to both sentences of the Article, and that 
in its panel request, which sets out the panel's terms of reference, Mexico pointed out that the 
measures at issue are inconsistent with Article 2.3 of the SPS Agreement, as Costa Rica's measures 
are applied in a manner that constitutes a disguised restriction on international trade and because 
they arbitrarily or unjustifiably discriminate between Costa Rica's own territory and that of 
Mexico.3279 
7.2164.   Costa Rica  conte nds that Mexico has failed to substantiate its allegations of 
discrimination.3280 Costa Rica states that Mexico's claims under Article 2.3 are unfounded, because, 
as the situations are not comparable, there is no discrimination.3281 
7.2165.   Costa Rica asserts  that Mexico's claim under Article 2.3 of the SPS Agreement is based 
entirely on the pre mise that ASBVd is present in Costa Rica, a premise that Costa Rica considers to 
be factually incorrect. In Costa Rica's view, the situations in Mexico and in Costa Rica are not 
comparable, as ASBVd is present in Mexico and it is not in Costa Rica.3282 Costa  Rica submits that is 
why it is not required to extend the same treatment to different situations.3283 Costa Rica uses the 
same arguments that it presented under Article 5.5 on this matter.3284 
7.2166.   Costa Rica points out that Mexico's claim under Article 2.3 of the  SPS Agreement is based 
only on the alleged violation of Article 5.5 of the same Agreement, and, given that Mexico has failed 
to establish a violation of Article 5.5 of the SPS Agreement, it has consequently failed to satisfy its 
burden of proof under Arti cle 2.3 of the SPS Agreement. Costa Rica adds that, since ASBVd is present 
in Mexico and absent in Costa Rica, Mexico has failed to demonstrate that the situations in the two 
countries are comparable and has thus failed to substantiate its allegation that there are arbitrary 
or unjustifiable distinctions within the meaning of Article 5.5 of the SPS Agreement, and its 
consequential claim of discrimination under Article 2.3 of the SPS Agreement.3285 
7.2167.   The Panel  recalls that Article 2.3 of the SPS Agreement contai ns two primary obligations 
set forth in each of the two sentences of that Article.3286 The first sentence of Article 2.3 of the SPS 
Agreement requires Members to ensure that their sanitary and phytosanitary measures do not 
 
3276 Panel  Report , Russia – Pigs (EU) , para. 7.1403 (citing Panel  Report , Australia – Salmon , 
para. 8.109).  
3277 Mexico's f irst written submission, p. 137; second written submission, p. 57.  
3278 Mexico's first written submission, para. 545; second written submission, para. 247; response to 
Panel question No.  174, para. 159.  
3279 Mexico's response to Panel question No. 174, para. 157.  
3280 Costa Rica's first written submission, p. 72.  
3281 Costa Rica's first written submission, para. 5.197.  
3282 Costa Rica's first written submission, para. 5.206; response to Panel question No. 61, para. 2; 
second written submission, paras.  3.75 and 3.82 -3.83. 
3283 Costa Rica's second written submission, para. 3.7 5. 
3284 Costa Rica's first written submission, paras.  5.207 -5.209; second written submission, 
paras.  3.84-3.87. 
3285 Costa Rica's first written submission, para. 5.211; second written submission, para. 3.88.  
3286 Panel  Report s, Russia – Pigs (EU) , para.  7.1296; and  India – Agricultural Products , para.  7.388.  WT/DS524/R  
- 453 - 
  arbitrarily or unjustifiably discri minate between Members where identical or similar conditions 
prevail, including between their own territory and that of other Members. The second sentence of 
Article 2.3 requires that SPS measures shall not be applied in a manner which would constitute a 
disguised restriction on international trade.  
7.2168.   In the Panel's view, Mexico presents its claim under Article 2.3 of the SPS Agreement as 
consequential to Article 5.5 of the SPS Agreement, by noting that the demonstration of inconsistency 
with Article 5.5 impl ies an inconsistency with Article 2.3.  
7.2169.   The Appellate Body pointed out that Article 2.3 is an important part of the context of 
Article  5.5; that, when read together with Article 2.3, Article 5.5 "may be seen to be marking out 
and elaborating a particular ro ute leading to the same destination" set out in Article 2.33287; and 
that there is a "close link" between Articles 2.3 and 5.5 of the SPS Agreement.3288 The Appellate 
Body also observed that a finding of violation of Article 5.5 will necessarily imply a violat ion of 
Article  2.3, first sentence, or Article 2.3, second sentence.3289 
7.2170.   This Panel notes that Article 2 of the SPS Agreement, entitled "Basic Rights and 
Obligations", prohibits, through Article 2.3, SPS measures from arbitrarily or unjustifiably 
discriminat ing between Members and from constituting a disguised restriction on international trade, 
which has been developed in Article 5.5 of the SPS Agreement in the context of the application of 
the concept of appropriate level of sanitary or phytosanitary protec tion. In fact, in previous disputes, 
in their analyses of arbitrary or unjustifiable discrimination or a disguised restriction on trade, 
previous panels have referred to the Appellate Body's interpretations and reasoning in the context 
of Article 5.5.3290 Moreover, the Panel notes that Mexico has not presented new arguments under 
Article 2.3 of the SPS Agreement.  
7.2171.   The Panel has already found that, in respect of the first two situations that Mexico has 
indicated as comparable under Article 5.5, i.e. fresh av ocados imported for consumption from 
countries where ASBVd is present vis-à-vis domestic Costa Rican avocados in which ASBVd is likely 
to be present, there are arbitrary or unjustifiable distinctions in the levels of protection that Costa 
Rica considers to  be appropriate in different situations, which result in discrimination or a disguised 
restriction on international trade, and that, therefore, Costa Rica has acted inconsistently with 
Article  5.5 of the SPS Agreement.  
7.2172.   With regard to the second and third two situations that Mexico has indicated as comparable, 
i.e. fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing 
countries where ASBVd is present, and fresh avocados imported for consumption in which ASBVd is 
present vis-à-vis avocado plants for planting, the Panel has found that Mexico has failed to 
demonstrate that there are arbitrary or unjustifiable distinctions in the levels of protection that Costa 
Rica considers to be appropriate in different situations, which resu lt in discrimination or a disguised 
restriction on international trade.  
7.2173.   Mexico points out that its claim under Article 2.3 of the SPS Agreement refers to both 
sentences of the Article. In its panel request, Mexico refers to the measures at issue as being 
inconsistent with Article 2.3 of the SPS Agreement, as those measures are applied in a manner that 
constitutes a disguised restriction on international trade and because they arbitrarily or unjustifiably 
discriminate between Costa Rica's own territory and t hat of Mexico. In the Panel's view, Mexico links 
the discrimination to the first two situations only, i.e. fresh avocados imported for consumption from 
countries where ASBVd is present vis-à-vis domestic Costa Rican avocados; and the disguised 
restriction on trade to all three pairs of comparable situations that it identifies, i.e. fresh avocados 
imported for consumption from countries where ASBVd is present vis-à-vis domestic Costa Rican 
avocados; fresh avocados imported from Mexico vis-à-vis avocados impo rted from certificate -issuing 
 
3287 Appellate Body Report, EC – Hormones , para.  212. See also Appellate Body Report, EC – Hormones , 
para. 238. 
3288 Appellate Body Report, India – Agricultural Products , para. 5.12 (citing Appellate Body Report, 
EC – Hormones , para. 212).  
3289 Appellate Body Report, Australia – Salmon , para. 252.  
3290 See Panel  Report s, US – Animals , para. 7.585 (citing Appellate Body Report, Australia – Salmon , 
para. 163; and Panel  Report , US – Poultry (China) , para. 7.285); India – Agricultural Products , para. 7.475; 
and Russia – Pigs (EU) , para. 7.1322 (citing Appellate Body Report, Australia – Salmon , para. 158).  WT/DS524/R  
- 454 - 
  countries where ASBVd is present; and fresh avocados imported for consumption in which ASBVd is 
present vis-à-vis avocado plants for planting.  
7.2174.   For the same reasons set out in its analysis of Mexico's claims under Article 5.5 o f the SPS 
Agreement with respect to the first two comparable situations, the Panel considers that Costa Rica's 
phytosanitary measures arbitrarily or unjustifiably discriminate between its own territory and that 
of Mexico. In particular, the Panel reiterate s that, given that Costa Rica's determination of freedom 
from ASBVd is not legitimately scientific, the rather substantial difference between the treatment of 
fresh avocados imported for consumption from countries where ASBVd is present and domestic 
Costa  Rican avocados cannot be considered to be scientifically justified.  
7.2175.   The Panel also notes the panel's consideration in India – Agricultural Products  in the sense 
that "disguised restriction on international trade" may similarly be read to encompass measures  that 
constitute arbitrary or unjustifiable discrimination.3291 In light of the foregoing and the reasons set 
out in its analysis of Mexico's claims under Article 5.5 of the SPS Agreement with respect to the first 
two comparable situations, the Panel also fi nds that Costa Rica's phytosanitary measures are applied 
in a manner which constitutes a disguised restriction on international trade, within the meaning of 
the second sentence of Article 2.3 of the SPS Agreement.  
7.2176.   Also for the same reasons set forth in its  analysis of Mexico's claims under Article 5.5 of 
the SPS  Agreement, the Panel considers that Mexico has failed to satisfy its burden of proof under 
Article 2.3 in respect of the other two pairs of situations that it has indicated as comparable, i.e. 
fresh avocados imported from Mexico vis-à-vis avocados imported from certificate -issuing countries 
where ASBVd is present, and fresh avocados imported for consumption in which ASBVd is present 
vis-à-vis avocado plants for planting.  
7.2177.   Therefore, the Panel conclude s that Costa Rica's phytosanitary measures, i.e. Resolutions 
DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary requirements, arbitrarily or 
unjustifiably discriminate between Costa Rica's own territory and that of Mexico, and are applied in 
a manner which constitutes a disguised restriction on international trade. Thus, Costa Rica has acted 
inconsistently with the first and second sentences of Article 2.3 of the SPS Agreement.  
7.6.7   Overall conclusion of this section  
7.2178.   The Panel concludes that, in re spect of the first two situations that Mexico has indicated as 
comparable, i.e. fresh avocados imported for consumption from countries where ASBVd is present 
vis-à-vis domestic Costa Rican avocados in which ASBVd is likely to be present, there are arbitrar y 
or unjustifiable distinctions in the levels of protection that Costa Rica considers to be appropriate in 
different situations, which result in discrimination or a disguised restriction on international trade. 
Therefore, Costa Rica has acted inconsistentl y with Article  5.5 of the SPS Agreement.  
7.2179.   The Panel also concludes that Costa Rica's phytosanitary measures, i.e. Resolutions 
DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary requirements, arbitrarily or 
unjustifiably discriminate between its own territory and that of Mexico, and are applied in a manner 
which constitutes a disguised restriction on international trade. Thus, Costa Rica has acted 
inconsistently with the first and second sentences of Article 2.3 of the SPS  Agreement.  
7.7  Mexico's claims with respect to the obligations under the SPS Agreement regarding 
adaptation to regional conditions  
7.7.1   General introduction to the section  
7.2180.   Mexico claims that Costa Rica's measures are inconsistent with Article 6.1 of the SPS 
Agreem ent3292, because Costa Rica's risk assessment failed to take into account the factors in the 
second sentence of Article 6.1, in particular, the level of prevalence of ASBVd in its territory and in 
that of the exporting countries, the existence of eradication  or control programmes, and appropriate 
criteria or guidelines which may be developed by the relevant international organizations3293; and 
 
3291 Panel  Report , India – Agricultural Products , para. 7.476.  
3292 Mexico's first written submission,  p. 144 and para. 608.  
3293 Mexico's first written submission, pp. 145 -147. WT/DS524/R  
- 455 - 
  Costa Rica failed to ensure that its measures were adapted to the phytosanitary characteristics of 
its territory and to  those of the other avocado -producing countries.3294 
7.2181.   Costa Rica submits that Mexico's claim is unfounded and based entirely on the premise that 
ASBVd is present in Costa Rica, but that this premise is factually incorrect. Costa Rica asserts  that 
it took into  account the relevant factual information on the phytosanitary characteristics of its 
territory and, in light of this information, reached the conclusion that it did not need to adapt the 
phytosanitary measures to its territory because ASBVd is absent from  Costa Rica.3295 
7.2182.   The Panel will examine below whether Mexico has demonstrated that Costa Rica has acted 
inconsistently with Article 6.1 of the SPS Agreement by failing to take into account the factors in the 
second sentence of this Article, and by failing to  ensure that its measures are adapted to the 
phytosanitary characteristics of its territory.3296 
7.2183.   To that end, the Panel will first set forth the relevant legal provisions and the legal standard, 
and will then conduct the necessary analysis.  
7.7.2   The relevant lega l provisions  
7.2184.   Article 6.1 of the SPS Agreement provides:  
Members shall ensure that their sanitary or phytosanitary measures are adapted to the 
sanitary or phytosanitary characteristics of the area — whether all of a country, part of 
a country, or all or par ts of several countries — from which the product originated and 
to which the product is destined. In assessing the sanitary or phytosanitary 
characteristics of a region, Members shall take into account, inter alia , the level of 
prevalence of specific disea ses or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be developed by the 
relevant international organizations.  
7.7.3   Legal standard under Article  6.1 of the SPS  Agreement  
7.2185.   In this section, the Panel wi ll describe how other panels and the Appellate Body have 
interpreted Article 6.1 of the SPS Agreement. The Panel will be guided by these interpretations to 
the extent that they are relevant to its analysis.  
7.2186.   The first sentence of Article  6.1 requires WTO Me mbers to ensure that their sanitary or 
phytosanitary measures are adapted to the sanitary or phytosanitary characteristics of the area from 
which the product originated and to which the product is destined.  
7.2187.   The Appellate Body in India – Agricultural Produc ts defined the verb  "ensure" , in accordance 
with the ordinary meaning of the word, as "to make certain the occurrence of a situation or outcome" 
and "adapt" as "fit, adjust (to); make suitable (to or for)".3297 This Panel notes that, in this 
connection, the Diccionario de la lengua española  of the Real Academia Española defines 
"asegurarse " ("ensure") as " hacer que alguien o algo queden seguros o firmes " ("make someone or 
something safe or secure") and " hacer qu e algo quede seguro o garantizado " ("make something 
certain or guaranteed"), and " adaptar " ("adapt") as " acomodar, ajustar algo a otra cosa " 
("accommodate, adjust something to something else").3298 
 
3294 Mexico's first written submission, p. 147.  
3295 Costa Rica's first written submission, paras.  5.256 and 5.265; second written submission, 
paras.  3.82-3.83 and 3.88.  
3296 On 18  December  2019, this Panel issued its preliminary ruling, in which it concluded that Mexico's 
claim under Article 6.1 of the SPS Agreement, regarding the alleged failure to adapt Costa Rica's measures to 
the phytosanitary characteristics of the area from which the pro duct originated, fell outside of its terms of 
reference.  
3297 Appellate Body Report, India – Agricultural Products , para. 5.132 (citing Shorter Oxford English 
Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. I, p. 24).  
3298 Diccionar io de la lengua española , Real Academia Española, accessed 30  November  2021, 
https://dle.rae.es/asegurar ; Diccionario de la lengua española , Real Academia Española, accessed 
30 November  2021, https://dle.rae.es/adaptar . WT/DS524/R  
- 456 - 
  7.2188.   The Appellate Body in Russia – Pigs (EU)  indicated that the regional "characteristics" that 
are relevant for the adaptation of an SPS measure are those relating to the specific risk that such a 
measure seeks to address.3299 
7.2189.   The Appellate Body in Russia – Pigs (EU)  noted that, in India – Agricultural Products , 
signifi cance was attached to the fact that Article 6 does not specify any particular manner in which 
a Member must ensure adaptation of its SPS measures within the meaning of Article 6.13300, and 
considered that this suggests that Members enjoy a degree of latitude  in determining how to ensure 
adaptation of their SPS measures to regional conditions pursuant to Article 6.1.3301 The Appellate 
Body in India – Agricultural Products  considered that, accordingly, assessing whether or not a 
Member has complied with Article 6 .1 will necessarily be a function of the nature of the claims raised 
by the complainant and the circumstances of each case.3302 
7.2190.   The Appellate Body in India – Agricultural Products  considered that the obligation to ensure 
that a Member's SPS measures are "adapted" to the relevant areas is an ongoing obligation that 
applies upon adoption of an SPS measure as well as thereafter, which implies that such measures 
may need to be modified  if the relevant SPS characteristics change.3303 The Appellate Body confirmed 
in Russia – Pigs (EU) that the fact that a WTO Member has adapted its measures to the SPS 
characteristics of an area at a specific point in time may not ensure that such adaptation remains 
adequate when the particular SPS characteristics of that area evolve .3304 Therefore, according to the 
Appellate Body, the obligation established under Article 6.1 of the SPS Agreement may require a 
Member to adjust such measures over time as the SPS characteristics of the relevant areas 
change.3305 
7.2191.   In the view of the panel in US – Animals , the "adaptation" obligation entails that the 
measure in question must be tailored or calibrated to the specific SPS characteristics of the area 
concerned.3306 The panel indicated that if, for instance, a particular area within the territory of an 
importing Member has a similar SPS  status as the area of origin of a product (e.g. has the same 
level of prevalence of a given disease), that Member may be required t o tailor its measure by relaxing 
the restrictions on imports into that area.3307 
7.2192.   The second sentence of Article 6.1 of the SPS Agreement refers to the obligation that, in 
assessing the sanitary or phytosanitary characteristics of a region, Members shall take  into account, 
inter alia , the level of prevalence of specific diseases or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be developed by the relevant 
international organizations.  
7.2193.   Turning to the relationship between the first and second sentences of Article 6.1, the 
Appellate Body in India – Agricultural Products noted that the nature of the obligation under the first 
sentence is more general than under the second sentence, and that the second sen tence indicates 
how a specific action is to be taken, specifying, in a non -exhaustive manner, the elements that 
Members must take into account in assessing the SPS characteristics of a region.3308 
7.2194.   The Appellate Body in Russia – Pigs (EU) noted that the secon d sentence of Article 6.1 
indicates that a Member must evaluate all the evidence relevant to assessing the SPS characteristics 
of an area.3309 The Appellate Body considered that this assessment, in turn, provides the basis, and 
therefore constitutes a prereq uisite, for the adaptation of that Member's measures to such SPS 
 
3299 Appellate Body Report, Russia – Pigs (EU), para. 5.57.  
3300 Appellate Body Report, Russia – Pigs (EU) , para. 5.124 (citing Appellate Body Report, India – 
Agricultural  Products , para. 5.136 ). 
3301 Appellate Body Report, Russia – Pigs (EU) , para. 5.124 (citing Appellate Body Report, India – 
Agricultural Products , para. 5.137).  
3302 Appellate Body Report, India – Agricultural Products , para. 5.137.  
3303 Appellate Body Report, India – Agricultural Produ cts, paras.  5.154 and 5.157.  
3304 Appellate Body Report, Russia – Pigs (EU), para. 5.33.  
3305 Appellate Body Report, Russia – Pigs (EU) , para. 5.58 (citing Appellate Body Report, India – 
Agricultural Products , para. 5.132).  
3306 Panel  Report , US – Animals , para. 7.642.  
3307 Panel  Report , US – Animals , para. 7.642.  
3308 Appellate Body Report, India – Agricultural Products , paras.  5.134 -5.135.  
3309 Appellate Body Report, Russia – Pigs (EU), para. 5.59.  WT/DS524/R  
- 457 - 
  characteristics pursuant to the first sentence of Article 6.1 of the SPS Agreement.3310 In this 
connection, the panel in US – Animals explained that once the SPS  characteristics of the area hav e 
been assessed, the Member is required to adapt its SPS  measure to such characteristics .3311 
7.2195.   The panel in US – Animals also indicated that the requirement to take into account a 
particular factor requires consideration of the factor and does not mandate a p articular result or 
determination .3312 
7.2196.   The Appellate Body in Russia – Pigs (EU) considered that certain parallels exist between 
the assessment of the SPS characteristics of an area and the assessment of risks pursuant to Articles 
5.1 through 5.3 of the SPS Agreement, and explained that, as a result, the importing Member's 
assessment of the SPS characteristics of a relevant area may, in certain cases, be conducted as part 
of a Member's risk assessment pursuant to Articles 5.1 through 5.3.3313 
7.2197.   In short, as n oted by other panels and the Appellate Body, Members are required to ensure 
that their SPS measures are adapted (in other words, adjusted or tailored) to the relevant regional 
SPS characteristics, which is an ongoing obligation, and Members enjoy a degree of latitude in 
determining how to ensure the adaptation of their SPS measures to regional conditions.  
7.2198.   In order to assess these characteristics, Members must evaluate all the relevant evidence, 
taking into account, inter alia , the elements in the second sen tence of Article 6.1.  
7.7.4   The Panel's analysis  
7.2199.   The Panel will first analyse whether Mexico has demonstrated that Costa Rica has acted 
inconsistently with the second sentence of Article 6.1 of the SPS Agreement by failing to take into 
account, in assessing the sanitary or phytosanitary characteristics of its territory, the level of 
prevalence of specific diseases or pests, the existence of eradication or control programmes, and 
appropriate criteria or guidelines which may be developed by the relevant internation al 
organizations.  
7.2200.   The Panel will then turn to an analysis of whether Mexico has demonstrated that Costa Rica 
has acted inconsistently with the first sentence of Article 6.1 of the SPS Agreement by failing to 
ensure that its phytosanitary measures were adap ted to the phytosanitary characteristics of the area 
to which fresh avocados for consumption from Mexico are destined (i.e. Costa Rican territory).  
7.7.4.1   Whether Costa Rica has acted inconsistently with its obligation under the second 
sentence of Article 6.1 of the SPS Agreement  
7.2201.   Mexico states that Costa Rica's assessment failed to take into account the factors in the 
second sentence of Article 6.1, in particular, the level of prevalence of ASBVd in its territory and in 
that of the exporting countries, the existen ce of eradication or control programmes, and appropriate 
criteria or guidelines which may be developed by the relevant international organizations.3314 
7.2202.   Costa Rica claims that it took into account all the evidence relevant to assessing the 
phytosanitary characteristics of its territory, and that none of Mexico's arguments demonstrate that 
Costa Rica has failed to take into account the factual aspects relevant to assessing the phytosanitary 
characteristics of its territory.3315 
7.2203.   As explained, Co sta Rica is required under the second sentence of Article 6.1, in assessing 
the sanitary or phytosanitary characteristics of a region, to take into account, inter alia , the level of 
prevalence of specific diseases or pests, the existence of eradication or control programmes, and 
appropriate criteria or guidelines which may be developed by the relevant international 
organizations. The purpose of doing so is to comply with the obligation under the first sentence of 
Article 6.1 to ensure that its sanitary or p hytosanitary measures are adapted to the sanitary or 
 
3310 Appellate Body Report, Russia – Pigs (EU), para. 5.59.  
3311 Panel  Report , US – Animals , para. 7.646.  
3312 Panel  Report , US – Animals , para. 7.644.  
3313 Appellate Body Report, Russia – Pigs (EU), para. 5.59.  
3314 Mexico's first written submission, pp. 145 -147. 
3315 Costa Rica's first written submission, paras.  5.260 and 5.265.  WT/DS524/R  
- 458 - 
  phytosanitary characteristics of the area from which the product originated and to which the product 
is destined.  
7.2204.   The Panel will analyse below whether Costa Rica took into account the level of prevalence  
of specific diseases or pests, the existence of eradication or control programmes, and appropriate 
criteria or guidelines that may be developed by the relevant international organizations.  
7.7.4.1.1   Level of prevalence of specific diseases or pests  
7.2205.   Mexico  states th at Costa Rica did not take into account the level of prevalence of specific 
diseases or pests in its territory or in that of the exporting countries.3316 
7.2206.   Mexico submits that Costa Rica should have taken into account the level of prevalence of 
ASBVd and its d isease both in its territory and in the avocado -exporting territories, and have 
analysed this factor bearing in mind the size of the countries, the location of the production areas 
and the confirmed findings of the presence of ASBVd and its disease in avoc ado-producing 
countries.3317 
7.2207.   Mexico notes that Manual NR -ARP-PO-01_M -01 establishes a generic approach for 
analysing the prevalence of pests in the source area, which does not require SFE officials to analyse 
in detail the specific areas in which the presenc e of a particular pest has been reported, but rather, 
the existence, or lack thereof, of reports or details on the distribution of a pest in the place of origin. 
According to Mexico, the officials may even rate the prevalence of a pest as high, even though  the 
presence of a pest is reported without details of its distribution. Mexico considers that this type of 
assessment does not allow for the prevalence of a specific pest in a region to be properly judged, 
and, consequently, prevented SFE officials from a ssessing the prevalence level of ASBVd and its 
disease in Mexico and in other avocado -producing countries.3318 
7.2208.   Referring to the assertions in Reports ARP -002-2017 and ARP -006-2016 on the absence of 
ASBVd in Costa Rica, Mexico notes that, in its complaints un der Articles 5.1 and 3.1, it set forth the 
evidence that, for Mexico, demonstrates that Costa Rica has failed to base the declaration of absence 
of ASBVd from its territory on ISPM Nos. 6 and 8; and has not declared itself a PFA in accordance 
with ISPM No.  4, which would have been necessary to scientifically confirm this absence.3319 
7.2209.   Mexico adds that there is scientific evidence from which it can be inferred that ASBVd is 
present in Costa Rica, particularly because the sampling surveys carried out to determine its absence 
lack rigour and a scientific methodology. For Mexico, given that Costa Rica did not contest any of 
the arguments that Mexico put forward, the Panel should find that Costa Rica failed to act on the 
basis of ISPM Nos. 6 and 8 in determi ning the absence of ASBVd.3320 
7.2210.   Mexico further notes that Costa Rica makes assertions relating to the presence of ASBVd 
in Mexico, from which it is also possible to infer other facts and omissions from Costa Rica. Mexico 
states that "evaluate" has antonyms su ch as overlook and ignore, and that Costa Rica overlooked 
the fact that ASBVd has only been detected, and confirmed with a laboratory analysis, in certain 
municipalities in the state of Michoacán; and the fact that the presence of ASBVd has not been 
confir med in the rest of Mexico's avocado -producing states.3321 
7.2211.   Mexico submits that, in Resolutions DSFE -002-2018 and DSFE -003-2018, Costa Rica did 
not consider the level of prevalence of ASBVd either in Mexico or in avocado -producing countries, 
and that the measu res in Resolution DSFE -002-2018 are applied generically and without further 
scientific justification to any country where ASBVd is present. Mexico notes that Costa Rica should 
have carried out a risk assessment appropriate to the circumstances for each of the countries to 
 
3316 Mexico's first written submission, para. 595.  
3317 Mexico's first written submission, para. 590.  
3318 Mexico's first written submission, para. 591.  
3319 Mexico's first written submission, para. 592.  
3320 Mexico's second written submission, para. 302.  
3321 Mexico's fir st written submission, para. 593.  WT/DS524/R  
- 459 - 
  which it applied the measures, and also in order to justify why it considered that ASBVd is present 
in certain countries and absent in others.3322 
7.2212.   Costa Rica  submits that it has extensively discussed  Mexico's conceptual error in invoking 
ISPM No.  4 in relation to the determination of absence of a pest in an area and that, in any event, 
ASBVd is absent from its territory and it has followed the relevant ISPMs with respect to the 
surveillance of its phytosanitary situation.3323 
7.2213.   Costa Rica also no tes that there are not areas with a higher or lower prevalence of ASBVd 
in Costa Rica within the meaning of Article 6.1 of the SPS Agreement, because, according to Costa 
Rica, the pest is absent from the entire territory of Costa Rica.3324 
7.2214.   On 18  December  2019, this Panel  issued its preliminary ruling, in which it concluded that 
Mexico's claim under Article 6.1 of the SPS Agreement, regarding Costa Rica's alleged failure to 
adapt its measures to the phytosanitary characteristics of the area from which the prod uct 
originated, fell outside of the Panel's terms of reference. In view of the foregoing, Mexico's 
arguments in relation to Costa Rica's failure to take into account the level of prevalence of ASBVd in 
Mexico and in other avocado -exporting countries fall o utside of the Panel's terms of reference and 
will not be addressed.  
7.2215.   With regard to Mexico's arguments that Costa Rica did not take into account the level of 
prevalence of ASBVd in Costa Rica, Mexico submits that, under Articles 5.1 and 3.1, it set forth th e 
evidence that, for Mexico, demonstrates that Costa Rica has failed to base the declaration of absence 
of ASBVd from its territory on ISPM Nos. 6 and 8, and has not declared itself a PFA in accordance 
with ISPM No.  4, which would have been necessary to sc ientifically confirm this absence.3325 
7.2216.   As regards Mexico's argument on ISPM No.  4, the Panel notes that Mexico has indicated 
that it "agrees with the experts that Costa Rica was not required to establish a PFA within its 
territory ."3326 
7.2217.   Turning to Mexico's argument that Costa Rica has failed to base the declaration of absence 
of ASBVd from its territory on ISPM Nos. 6 and 8, the Panel considers that, regardless of whether or 
not Costa Rica based its declaration on ISPM Nos. 6 and 8, Mexico has not e xplained how the fact 
that Costa Rica may have failed to base its declaration of absence of ASBVd from its territory on 
ISPM Nos. 6 and 8 would automatically lead to an inconsistency with Article 6.1 of the SPS Agreement 
relating to the level of prevalence  of ASBVd. In other words, Mexico has failed to explain how its 
arguments that Costa Rica's declaration is not based on ISPM Nos. 6 and 8 fall under the standard 
of Article 6.1 of the SPS Agreement.  
7.2218.   This argument appears to be related to Mexico's assertion  that ASBVd is present in 
Costa  Rica. As the Panel explained, the burden of proof rests upon the party, whether complaining 
or defending, who asserts the affirmative of a particular claim or defence.3327 In this case, it is Mexico 
that bears the burden of proving its assertion that ASBVd and its disease are present in Costa Rica. 
As the Panel concluded in paragraph 7.310 above, Mexico has failed to demonstrate that ASBVd is 
present in Costa Rica.  
7.2219.   In view of the foregoing, the Panel concludes that Mexico has failed to demonstrate that 
Costa Rica did not take into account the level of prevalence of specific diseases or pests in assessing 
the sanitary or phytosanitary characteristics of a region.  
 
3322 Mexico's first written submission, para. 594.  
3323 Costa Rica's first written submission, para. 5.261.  
3324 Costa Rica's second written submission, para. 3.87.  
3325 Mexico's first written submission, para. 592.  
3326 Mexico's comment s on the experts' responses to Panel questions Nos. 164, 165 and 167 for 
the experts; response to Panel question No. 129.  
3327 Appellate Body Report, US – Wool Shirts and Blouses , p. 1 4. WT/DS524/R  
- 460 - 
  7.7.4.1.2   The existenc e of eradication and control programmes  
7.2220.   Mexico  submits that Costa Rica did not take into account the existence or not of eradication 
or control programmes for ASBVd and its disease.3328 
7.2221.   Mexico states that Costa Rica should have considered the existence of AS BVd eradication 
or control programmes implemented in avocado -exporting countries that consider ASBVd as a pest 
of quarantine significance, as well as the absence  of eradication or control programmes in its territory 
and in that of the exporting countries.3329 
7.2222.   Mexico notes that Manual NR -ARP-PO-01_M -01 does not establish a criterion for assessing 
the existence of eradication or control programmes; that the PRAs make no reference to existing 
eradication and control programmes in exporting countries to eradicate  the presence of ASBVd; and 
that Resolutions DSFE -002-2018 and DSFE -003-2018 do not refer to the existence or no t of any 
eradication or control programme for ASBVd and its disease .3330 
7.2223.   Mexico contends that there is no mandatory national ASBVd eradication or control 
programme in Mexico, due to the fact that, since the confirmed detection in 2009 and to date, ASBVd 
has not been a significant problem as it has been adequately controlled through preventive measures 
such as the disinfection of pruning and cutting tools. Mexico adds that there is a voluntary field 
protocol for surveillance, alerts, monitoring, detection and control of ASBVd, because neither ASBVd 
nor its disease are considered quarantine pests with respect to fresh fruit for consumption.3331 
7.2224.   Mexico ad ds that there is scientific evidence from which it can be inferred that ASBVd is 
present in Costa Rica, particularly because the sampling surveys carried out to determine its absence 
lack rigour and a scientific methodology. For Mexico, given that Costa Ri ca did not contest any of 
the arguments put forward by Mexico, the Panel should find that Costa Rica failed to take account 
of the existence of ASBVd eradication or control programmes.3332 
7.2225.   Costa Rica  states that in conducting the risk assessment it considere d the existence of 
ASBVd eradication and control programmes in Mexico, that it found that there are no such 
programmes, and that Mexico itself admits that in Mexico there is no mandatory programme for 
eradicating or controlling ASBVd at the national level.3333 
7.2226.   Costa Rica contends that there are no ASBVd eradication programmes in Costa Rica, since 
ASBVd is absent from the entire territory of Costa Rica. Costa Rica notes that what it has are training 
programmes for farmers, which seek to raise more awareness of  good agricultural practices, as well 
as domestic regulations prohibiting the sowing of seeds from avocados imported from countries with 
ASBVd. Costa Rica states that it has therefore taken all the necessary measures domestically to 
mitigate as much as pos sible the risk of losing its ASBVd -free phytosanitary status.3334 
7.2227.   As stated above, on 18  December  2019, this Panel  issued its preliminary ruling, in which 
it concluded that Mexico's claim under Article 6.1 of the SPS Agreement, regarding Costa Rica 's 
alleged failure to adapt its measures to the phytosanitary characteristics of the area from which the 
product originate d, fell outside of this Panel's terms of reference. In view of the foregoing, Mexico's 
arguments in relation to Costa Rica's failure to take into account the existence of ASBVd eradication 
and control programmes in Mexico and in other avocado -exporting cou ntries fall outside of the 
Panel's terms of reference and will not be addressed.  
7.2228.   Mexico also mentions that Costa Rica should have considered the absence of eradication or 
control programmes in its territory, but does not provide any further explanation of its argument. In 
addition, this argument appears to relate to Mexico's assertion that ASBVd is present in Costa Rica 
since, if ASBVd does not exist in Costa Rica, it seems that the existence or not of ASBVd control or 
eradication programmes in Costa Rica w ould not be relevant. As the Panel explained, the burden of 
 
3328 Mexico's first written submission, para. 599.  
3329 Mexico's first written submission, para. 596.  
3330 Mexico's first written submission, para. 597.  
3331 Mexico's first written submission, para. 598.  
3332 Mexico's second written submission, para. 302.  
3333 Costa Rica's f irst written submission, para. 5.262.  
3334 Costa Rica's first written submission, para. 5.262; second written submission, para. 3.87.  WT/DS524/R  
- 461 - 
  proof rests upon the party, whether complaining or defending, who asserts the affirmative of a 
particular claim or defence.3335 In this case, it is Mexico that bears the burden of proving its assert ion 
that ASBVd and its disease are present in Costa Rica. As the Panel concluded in paragraph 7.310 
above, Mexico has failed to demonstrate that ASBVd is present in Costa Rica.  
7.2229.   In view of the foregoing, the Panel concludes that Mexico has failed to demonst rate that 
Costa Rica did not take into account the existence or not of ASBVd eradication or control programmes 
in assessing the sanitary or phytosanitary characteristics of a region.  
7.7.4.1.3   Appropriate criteria or guidelines developed by the relevant internationa l 
organizations  
7.2230.   Mexico  submits that Costa Rica did not take into account the appropriate criteria or 
guidelines developed by the relevant international organizations.3336 
7.2231.   Mexico asserts that Costa Rica should have taken into account the appropriate criteria and 
guidelines developed by the WTO, the IPPC and the other existing RPPOs.3337 
7.2232.   Mexico states that while neither the IPPC nor NAPPO has issued a specific criterion for 
ASBVd, the WTO SPS Committee has issued the Guidelines to Further the Practical Implementation 
of Article 6 of the Agreement on the Application of Sanitary and Phytosan itary Measures (G/SPS/48), 
which are intended to provide assistance to Members in the practical implementation of Article 6 of 
the SPS Agreement, by improving transparency, exchange of information, predictability, confidence 
and credibility between  importi ng and exporting Members. Referring to paragraphs 8 and 9 of the 
guidelines, Mexico submits that Costa Rica should have applied these guidelines in its measures, by 
considering the strength and credibility of Mexico's phytosanitary infrastructure as well a s any 
knowledge and experience of Mexico and other countries regarding ASBVd and its disease.3338 
7.2233.   Mexico submits that Manual NR -ARP-PO-01_M -01 does not include a subparagraph for SFE 
officials to take into account the existence of criteria and guidelines dev eloped by the WTO, IPPC or 
other RPPOs, nor does it reflect a subparagraph that allows SFE officials to take into account the 
strength and credibility of the phytosanitary infrastructure in Mexico and other avocado -exporting 
countries, or any of their know ledge and experience. Mexico adds that Reports ARP -002-2017 and 
ARP-006-2017 do not mention the existence or not of a WTO, IPPC or other RPPO criterion or 
guideline.3339 
7.2234.   Mexico asserts that these measures also do not reflect that consideration was given at l east 
to the phytosanitary structure of Mexico and other avocado -producing countries, and their 
knowledge and prior experience. According to Mexico, Costa Rica ignored the fact that production 
and yield in avocado orchards in Mexico has not decreased but, o n the contrary, has increased 
annually, while up to 2015 Mexico had exported avocados to Costa Rica without keeping a register 
of ASBVd and its disease, and that the SFE had never recorded detecting ASBVd in Mexican 
consignments.3340 
7.2235.   Costa Rica  notes that th e Guidelines to Further the Practical Implementation of Article 6 
of the Agreement on the Application of Sanitary and Phytosanitary Measures (G/SPS/48) relate to 
practical aspects for recognition of pest - or disease -free areas and areas of low pest or dise ase 
prevalence. Costa Rica asserts that because ASBVd is absent in its territory, the consideration  of 
pest- or disease -free areas and areas of low pest or disease prevalence is irrelevant.3341 
 
3335 Appellate Body  Report, US – Wool Shirts and Blouses , p. 14. 
3336 Mexico's first written submission, p. 147.  
3337 Mexico's first written submission, para. 600.  
3338 Mexico's first written submission, para. 601 (citing Comité de Medidas Sanitarias y Fitosanitarias, 
Directrices para fomentar la aplicación práctica del artículo  6 del Acuerdo sobre la Aplicación de Medidas 
Sanitarias y Fitosanitarias, G/SPS/48  (16 de mayo de 2008 ) (G/SPS/48), (Exhibit MEX -151)); response to 
Panel question No.  172. 
3339 Mexico's first written submission, para. 602.  
3340 Mexico's first written submission, para. 603.  
3341 Costa Rica's first written submission, para. 5.263.  WT/DS524/R  
- 462 - 
  7.2236.   The Panel  observes that Mexico notes that Costa Rica should have taken into account the 
appropriate criteria and guidelines developed by the WTO, the IPPC and the other existing RPPOs, 
but only refers specifically to the Guidelines to Further the Practical Implemen tation of Article 6 of 
the Agreement on the Application of Sanitary and Phytosanitary Measures  (G/SPS/48) adopted by 
the SPS Committee in April 2008.3342 
7.2237.   The Panel notes that these guidelines address the recognition of pest - or disease -free areas 
and areas o f low pest or disease prevalence and applicable general processes. Neither Mexico nor 
Costa Rica has referred to the recognition of pest - or disease -free areas or areas of low pest or 
disease prevalence in this dispute, so the guidelines identified by Mexi co are not relevant to the 
present dispute.  
7.2238.   In view of the foregoing, the Panel concludes that Mexico has failed to demonstrate that 
Costa Rica did not take into account the appropriate criteria and guidelines developed by the relevant 
international organi zations in assessing the sanitary or phytosanitary characteristics of a region.  
7.7.4.1.4   Conclusion with respect to the second sentence of Article 6.1 of the SPS 
Agreement  
7.2239.   In light of the foregoing, the Panel concludes that Mexico has failed to demonstrate that 
Costa Rica has acted inconsistently with its obligation under the second sentence of Article 6.1, in 
assessing the sanitary or phytosanitary characteristics of a region, to take into account, inter alia , 
the level of prevalence of specific diseases or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be developed by the relevant 
international organizations.  
7.7.4.2   Whether Costa Rica has acted inconsistently with its obligation under the first 
sentence of Artic le 6.1 of the SPS Agreement  
7.2240.   Mexico  claims that Costa Rica's measures are inconsistent with Article 6.1 of the SPS 
Agreement, because Costa Rica did not ensure that these measures were adapted to the 
phytosanitary characteristics of its territory and those of other avocado -producing countries.3343 
7.2241.   In Mexico's view, Costa Rica should have adjusted its SPS measures for Mexico and other 
avocado -producing countries that export to its territory in accordance with the phytosanitary status 
of ASBVd and its disease in  Costa Rican territory, and the prevalence of ASBVd and its disease not 
only in Mexico and other avocado -producing countries but also in areas where the presence of ASBVd 
had been specifically recorded.3344 
7.2242.   Mexico argues that Costa Rica's measures would ther efore have needed to be attenuated 
for the following reasons: (i)  in the avocado -producing areas of Costa Rica's territory, signs have 
also been found of the presence of ASBVd; (ii)  although Michoacán is the state with the highest 
avocado production in Mex ico, not all avocados produced in Mexico are harvested in Michoacán, and 
other Mexican states could also produce the avocados challenged by Costa Rica. For Mexico, even 
assuming, as stated by Costa Rica, that Michoacán had an incidence of ASBVd in 14% of i ts orchards, 
Costa Rica should also have considered the possibility of examining whether it was feasible to import 
avocados from certain municipalities in that state and other Mexican states; and (iii)  the presence 
of ASBVd has not been confirmed in any of  the other 26 Mexican states that produce avocados.3345 
7.2243.   Mexico notes that there is scientific evidence from which it can be inferred that ASBVd is 
present in Costa Rica, particularly because the samples taken to determine its absence lack rigour 
and a scient ific methodology.  For Mexico, given that Costa Rica did not contest any of the arguments 
put forward by Mexico, the Panel should find that Costa Rica failed to ensure that its measures were 
adapted to the phytosanitary characteristics of its territory.3346 
 
3342 G/SPS/48, (Exhibit MEX -151). 
3343 Mexico's first written submission, paras.  147 and 608; second written submission, para. 303.  
3344 Mexico's first written subm ission, para. 606.  
3345 Mexico's first written submission, para. 607.  
3346 Mexico's second written submission, para. 302.  WT/DS524/R  
- 463 - 
  7.2244.   Costa Rica  submits that, in general, Mexico contends that Costa Rica has not adjusted the 
phytosanitary measures to the phytosanitary characteristics of its territory, but that Mexico's 
argument is untenable because ASBVd is absent from the entire territory  of Costa Rica.3347 
Costa  Rica also asserts that it did not have to adapt the phytosanitary measures to its territory since 
ASBVd is absent in Costa Rica.3348 
7.2245.   Costa Rica points out that Mexico has failed to provide any evidence whatsoever that 
demonstrates that ASBVd is present in Costa Rica and refers to its response to Panel question No.  26, 
in which it states that it refuted, one by one, the pieces of evidence presented by Mexico that 
allegedly prove that ASBVd is present in Costa Rica.3349 
7.2246.   Costa Rica asserts that none of the documents mentioned by Mexico constitutes evidence 
of the presence of ASBVd in Costa Rica, and that the NPPOs of each country are the authorities 
responsible for determining whether a pest is present or absent.3350 Costa Rica  maintains that all 
this evidence is firmly at odds with the multiple samples and diagnostic tests carried out by 
Costa  Rica, which have so far produced categorically negative results for the presence of ASBVd.3351 
7.2247.   Costa Rica adds that it set out  in detail i ts procedure for the surveillance and control of 
regulated pests and the sampling methodology followed; that it observed that there is a register of 
farms in Costa Rica and described  how the geographical selection of sampling areas is made, 
ensuring the ra ndomness and representativeness of the areas chosen, including backyard; that it 
addressed in detail the laboratory techniques that it uses to verify the presence or absence of ASBVd 
in the samples, and indicated that, since 2009, its laboratories have had  the capacity to use RT -PCR, 
the best diagnostic technique for ASBVd in terms of cost -effectiveness and time; and that it described  
how it took into account ISPM Nos. 6 and 8 in its surveillance work and when determining the 
country's phytosanitary status.3352 
7.2248.   Costa Rica contends that Mexico has provided nothing but mere speculation and conjecture, 
and that, in the circumstances, the Panel simply cannot accept Mexico's argument that ASBVd is 
present in Costa Rica, let alone find that the pest is indeed presen t in Costa Rican territory.3353 
7.2249.   As the Panel  explained earlier, in accordance with the first sentence of Article 6.1, 
Costa  Rica is obliged to ensure that its phytosanitary measures are adapted to the phytosanitary 
characteristics of the area from which fresh avocados for consumption  originated and to which the y 
are destined . 
7.2250.   As referred to above, on 18  December  2019, this Panel issued its preliminary ruling, in 
which it concluded that Mexico's claim under Article 6.1 of the SPS Agreement, regarding 
Costa  Rica's alleged failure to adapt its measures to the phytosanitary characteristics of the area 
from which the product originated, fell outside of this Panel's terms of reference. In view of the 
foregoing, Mexico's arguments in relation to Costa Rica's failure to adapt its phytosanitary measures 
to the prevalence of ASBVd in Mexico and in other avocado -producing countries fall outside of the 
Panel's terms of reference and will not be addressed.  
7.2251.   Mexico also argues that Costa Rica should have adjusted its SPS meas ures in accordance 
with the phytosanitary status of ASBVd and its disease in Costa Rican territory, and that such 
measures would therefore have needed to be attenuated due to the fact that signs have also been 
found  of the presence of ASBVd in avocado -producing areas of Costa Rican territory.3354 
7.2252.   The Panel notes that Mexico's argument is based on the premise that ASBVd is present in 
Costa Rica. As the Panel explained, the burden of proof rests upon the party, whether complaining 
 
3347 Costa Rica's first written submission, para. 5.264.  
3348 Costa Rica's first written submission, para. 5.265; second written submission, para.  3.75; opening 
statement at the first meeting of the Panel, para. 31.  
3349 Costa Rica's second written submission, para. 3.84.  
3350 Costa Rica's response to Panel question No. 26, para. 1.  
3351 Costa Rica's response to Panel question No. 26, para. 7.  
3352 Costa Rica's  second written submission, para. 3.85.  
3353 Costa Rica's second written submission, para. 3.86.  
3354 Mexico 's first written submission, para. 607.  WT/DS524/R  
- 464 - 
  or defending, who asserts the affirmative of a particular claim or def ence.3355 In this case, it is Mexico 
that bears the burden of proving its assertion that ASBVd and its disease are present in Costa Rica. 
As the Panel concluded in paragraph 7.310  above, Mexico has failed to demonstrate that ASBVd is 
present in Costa Rica.  
7.2253.   The Panel notes that, in section  7.4.5.1.3  above, it concluded that Costa Ric a's assertion in 
Reports ARP -002-2017 and ARP -006-2016 that it was determined that its territory is free of ASBVd 
lacks sufficient reliability and, therefore, cannot be considered legitimately scientific. Although this 
determination could be relevant to Co sta Rica's obligation to adapt its phytosanitary measures to 
the phytosanitary characteristics of its territory, Mexico has made no such argument.  
7.2254.   In fact, in response to the Panel's question as to whether the surveillance system of a WTO 
Member is relevan t to its obligations under Article 6.1 of the Agreement, Mexico does not elaborate 
on its arguments and simply notes that the relevance is that the surveillance system is a tool to 
achieve the objective of regionalization; that importing countries should b e responsible for the 
circumstances within their own territory, so as to adapt to the sanitary or phytosanitary 
characteristics of the area from which the product originated and to which the product is destined 
without applying measures that are more restr ictive than necessary to international trade; that it is 
possible, with the implementation of a surveillance system, to observe a particular pest and develop 
and maintain adequate and effective information on its status, while a measure is maintained over 
time and within a specific territory, in this case with respect to ASBVd in the territory of 
Costa  Rica.3356 
7.2255.   For the above reasons, in this Panel's view, Mexico has failed to demonstrate that 
Costa  Rica did not ensure that its phytosanitary measures are adap ted to the phytosanitary 
characteristics of its territory and those of other avocado -producing countries.  
7.2256.   The Panel therefore concludes that Mexico has failed to demonstrate that Costa Rica has 
acted inconsistently with its obligation under the first sente nce of Article 6.1 of the SPS  Agreement 
to ensure that its sanitary or phytosanitary measures are adapted to the phytosanitary 
characteristics of the area to which the product is destined.  
7.7.5   Overall conclusion of this section  
7.2257.   The Panel concludes that Mexico has failed to demonstrate that Costa Rica has acted 
inconsistently with its obligation under the first sentence of Article 6.1 of the SPS  Agreement to 
ensure that its sanitary or phytosanitary measures are adapted to the phytosanitary characteristics 
of the area to which the product is destined.  
7.2258.   The Panel also concludes that Mexico has failed to demonstrate that Costa Rica has acted 
inconsistently with its obligation under the second sentence of Article 6.1, in assessing the sanitary 
or phytosanitary charac teristics of a region, to take into account, inter alia , the level of prevalence 
of specific diseases or pests, the existence of eradication or control programmes, and appropriate 
criteria or guidelines which may be developed by the relevant international organizations.  
7.8  Mexico's claims related to harmonization  
7.8.1   General introduction to the section  
7.2259.   Mexico claims that Costa Rica has acted inconsistently with Article 3.1 of the SPS 
Agreement, as it failed to base its measures on ISPM Nos. 1, 2, 6, 8, 11 and 32, which are relevant 
to this case.3357 Mexico further contends that, even if Costa Rica claims that it has the right to 
maintain measures that imply a higher level of protection than would be achieved through the 
relevant standards, as its measures are inc onsistent with other provisions of the SPS Agreement, 
they are inconsistent with Article 3.3 of the SPS Agreement.3358 
 
3355 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
3356 Mexico's response to Panel question No. 176.  
3357 Mexico's second written submission, paras . 282 and 286.  
3358 Mexico's first written submission, para. 223.  WT/DS524/R  
- 465 - 
  7.2260.   Costa Rica submits that Mexico's claims under Articles 3.1 and 3.3 of the SPS Agreement 
are unfounded.3359 Costa Rica contends that there are  no international standards, guidelines or 
recommendations specific to ASBVd or avocados, and that, even if the ISPMs mentioned by Mexico 
were considered to be relevant international standards, guidelines or recommendations, Costa Rica's 
phytosanitary requ irements are in fact based on them.3360 
7.2261.   The Panel will address below the claims in respect of Articles 3.1 and 3.3 of the SPS 
Agreement.  
7.8.2   The Panel's analysis  
7.2262.   Mexico  claims that Costa Rica has acted inconsistently with Article 3.1 of the SPS 
Agreement, as it failed to base its measures on ISPM Nos. 1, 2, 6, 8, 11 and 32, which are relevant 
to this case.3361 
7.2263.   Mexico contends that those ISPMs are relevant because they all meet the definition of 
international standards, guidelines and recommendations given in paragr aph 3 of Annex A, and that, 
as they were issued by the Secretariat of the IPPC, they are conceptual standards that apply to 
general aspects of plant diseases or pests that are relevant to the development of the measures at 
issue in this dispute.3362 
7.2264.   Mexico s ubmits that the measures set forth in Resolutions DSFE -002-2018 and DSFE -003-
2018 are not based on ISPM No.  1, because they are not based on the principles of necessity, 
managed risk, minimal impact, non -discrimination and technical justification.3363 
7.2265.   Mexico  further submits that Reports ARP -006-2016 and ARP -002-2017 are not based on 
the sections relating to the definition of a PRA area in ISPM Nos. 2 and 113364; that ARP -002-2017 
contradicts ISPM No.  11, because it fails to identify clearly the initiation point  of its analysis3365; that 
Reports ARP -006-2016 and ARP -002-2017 are not based on ISPM Nos. 2 and 11, because they fail 
to consider previous PRAs3366; and that Costa Rica's PRA contradicts ISPM Nos. 11 and 1 with regard 
to risk management.3367 
7.2266.   Mexico states that  Costa Rica's measures contradict ISPM Nos. 11 and 32 with regard to 
the intended use of the commodity.3368 
7.2267.   According to Mexico, for Costa Rica's measures to be considered as being based on the 
ISPMs, the declaration of absence of ASBVd and its disease in Co sta Rica's territory should have 
followed the steps outlined in ISPM Nos. 6 and 8, and Costa Rica's declaration of absence as part of 
the PRA is not based on the aforementioned ISPMs.3369 
7.2268.   Mexico adds that it cannot be concluded that the manual is based on IS PM Nos. 2 and 11, 
with regard to whether a pest is a quarantine pest, because it fails to take into consideration 
fundamental aspects of those ISPMs3370; that it cannot be said that the PRA manual was based on 
the relevant criteria set forth in ISPM No.  11 to evaluate objectively the probability of pest entry, 
establishment and spread3371; and that Manual NR -ARP-PO-01_M -01 deviates fundamentally from 
ISPM No.  32, because the manual fails to distinguish between the different pathways that 
commodities may represent according to their pest risk.3372 
 
3359 Costa Rica's first written submission, paras.  5.5-5.7. 
3360 Costa Rica's first written submission, para. 5.16.  
3361 Mexico's second written submission, paras . 282 and 286.  
3362 Mexico's first written submission, para. 151; second written submission, para. 282.  
3363 Mexico's first written submission, para. 155; second written submission, para. 287.  
3364 Mexico's first written submission, para. 170.  
3365 Mexico's first written submission, para. 173.  
3366 Mexico's first written submission, para. 177.  
3367 Mexico's first written submission, paras.  183-187. 
3368 Mexico's first written submission, para. 194.  
3369 Mexico's first written submission, paras.  196 and 204; second written submission, para. 298.  
3370 Mexico's first written submission, para. 218.  
3371 Mexico's first written submission, para. 221.  
3372 Mexico's first written submission, para. 222.  WT/DS524/R  
- 466 - 
  7.2269.   Mexico asserts that, even if Costa Rica claims that it has the right to maintain measures 
that imply a higher level of protection than would be achieved through the relevant standards, its 
level of protection has no scientific justification nor is it a consequence of the level of phytosanitary 
protection determined to be appropriate in accordance with Articles 5.1 through 5.8 of the SPS 
Agreement, therefore, as its measures are inconsistent with othe r provisions of the SPS Agreement, 
they are inconsistent with Article 3.3 of the SPS Agreement.3373 
7.2270.   Costa Rica , for its part, submits that, in the area of plant health, there would seem to be 
no relevant international standards that WTO Members can use as th e basis for their phytosanitary 
requirements for specific pests or pathways, in accordance with Article 3.1 of the SPS  Agreement.3374 
Costa Rica asserts that the vast majority of the ISPMs contain procedures, and each country 
implements them according to the ir abilities and ALOP.3375 
7.2271.   Costa Rica does not consider that the risk assessment constitutes a measure subject to 
Article 3.1 of the SPS Agreement, in the sense that it should be based on relevant international 
standards.3376 Costa Rica submits that, as regard s risk assessments, Article 5.1 of the SPS 
Agreement is the relevant provision (together with Articles 5.2 and 5.3), which expands on the 
obligation under Article 2.2 of the SPS Agreement to base SPS measures on scientific principles. 
Costa Rica asserts th at Article 5.1 incorporates obligations with respect to the role that international 
standards play in a Member's risk assessment, by providing that, in assessing the risks, Members 
shall take into account risk assessment techniques developed by the relevan t international 
organizations. Costa Rica contends that it is in that context that ISPM Nos. 2 and 11 are relevant.3377 
7.2272.   Costa Rica submits that it has already pointed out  in the context of Article 5.1 that the PRAs 
were carried out in line with  the manual, w hich is based on the ISPMs relating to PRAs, in particular 
ISPM No.  11, in accordance with the obligation under Article 5.1 of the SPS Agreement to take into 
account risk assessment techniques developed by the relevant international organizations.3378 
7.2273.   Costa Rica asserts that, even assuming that the aforementioned ISPMs were relevant, 
neither the PRAs nor the manual represent an effective level of protection, rather they are steps 
followed prior to the adoption of the measure imposed on imports of fresh avocad os. In Costa Rica's 
view, any challenged measure must reflect a certain level of protection in order for it be compared 
with the level reflected in international standards and, therefore, neither the PRAs nor the manual 
are measures subject to Articles 3.1  and 3.3 of the SPS Agreement.3379 
7.2274.   Costa Rica submits that its phytosanitary requirements follow the general principles of ISPM 
No. 1, without contradicting them, and would therefore be based on that ISPM.3380 Costa Rica 
contends that, in its claim with respec t to ISPM No.  1, Mexico refers to Articles 5.6 and 2.2 of the 
SPS Agreement, and Costa Rica has substantiated in the sections concerning Article 5.6 of the SPS 
Agreement and Article XI:1 of the GATT  1994 that its measures are flexible, and that Mexico has 
failed to demonstrate that another, less restrictive measure is available with which Costa Rica would 
achieve its ALOP.3381 Costa Rica adds that, on the principle of non -discrimination, Mexico refers to 
its claims under Articles 2.3 and 5.5 of the SPS Agreem ent and III:4 of the GATT  1994, and that 
Costa Rica has substantiated in the sections on those Articles that no arbitrary or unjustifiable 
distinction is made.3382 
7.2275.   With regard to ISPM Nos. 2 and 11, Costa Rica contends that all Mexico's arguments are 
resubmi tted under Article 5.1 of the SPS Agreement, and that, in that context, Costa Rica has 
described  in detail how it explicitly defined the area considered for the PRAs, how it analysed exactly 
and on the basis of scientific evidence the potential biological and economic consequences from the 
entry of ASBVd into Costa Rica, and how it clearly identified the pest and the relevant pathways.3383 
 
3373 Mexico's first written submission, para. 223.  
3374 Costa Rica's first written submission, para. 5.21.  
3375 Costa Rica 's second written submission, para. 3.6.  
3376 Costa Rica's opening statement at the first meeting of the Panel, para. 28.  
3377 Costa Rica's first written submission, para. 5.36.  
3378 Costa Rica's first written submission, para. 5.42.  
3379 Costa Rica's second written submission, para. 3.10.  
3380 Costa Rica's second written submission, para. 3.11.  
3381 Costa Rica's first written submission, para. 5.30.  
3382 Costa Rica's first written submission, para. 5.31.  
3383 Costa Rica's first written submission, para. 5.38.  WT/DS524/R  
- 467 - 
  Costa Rica adds that in the context of Article 5.1 of the SPS Agreement it has described  how it took 
into account other risk analyses and regulations adopted by other countries, how Mexico confuses 
the concepts of PFA and "pest status in an area", how poss ible measures to be taken were considered 
during the risk management stage, and how the choice of the measures recommended was based 
on an assessment of their efficacy and on discarding less appropriate options.3384 
7.2276.   With regard to ISPM Nos. 6, 8, 11 and 32, Costa Rica states that Mexico repeats the same 
arguments as those raised under Article 5.1 of the SPS Agreement when it expresses its 
disagreement with the content of Costa Rica's risk assessment. Costa Rica asserts  that this is where 
it has addressed in d etail the factor of diversion from intended use and has described  how Mexico 
confuses the concepts addressed by ISPM Nos. 6 and 8 (pest status in an area) and by ISPM No.  4 
(the establishment of pest free areas).3385 
7.2277.   Costa Rica also submits that the manual a nd the PRAs follow the relevant procedural ISPMs 
(ISPM Nos. 2, 11 and 32), without contradicting them, therefore they would be based on these 
ISPMs.3386 
7.2278.   With regard to Manual NR -ARP-PO-01_M -01, Costa Rica asserts that one only has to refer 
to the manual to c onfirm that it is based on the ISPMs relating to the preparation of a risk analysis. 
Costa Rica contends that the manual is not an exact copy of the ISPMs, nor is there an obligation 
for it to be, since WTO Members are not required to adopt the ISPMs as in ternal manuals or to adopt 
a manual for the preparation of risk analyses, but they are required to base their measures on an 
risk assessment that is appropriate and in accordance with paragraph 4 of Annex A to the 
SPS Agreement. Costa Rica adds that the fa ct that a manual was adopted to guide the preparation 
of that risk assessment reflects a genuine intention to ensure that all risk assessments performed 
by the Member comply with the SPS Agreement.3387 Costa Rica also asserts that a risk analysis 
manual does  not have to reproduce the ISPMs in their entirety to be based on them, rather it may 
adopt some, not necessarily all, of the elements.3388 Costa Rica submits that the manual is a guide 
establishing the processes for the PRA, prepared in light of both ISPM N o. 2 and ISPM No.  11.3389 
7.2279.   Costa Rica submits that, in light of a comparison between Manual NR -ARP-PO-01_M -01 and 
the relevant sections of ISPM No.  11, it is difficult to maintain that the manual is not "based on" the 
recommendations of ISPM No.  11. For Costa  Rica, all essential factors of ISPM No.  11 are directly 
referred to in the manual.3390 
7.2280.   Costa Rica asserts that, although the language used in ISPM No.  32 and in the manual is 
different, the concept covered in both documents is the same.3391 
7.2281.   Costa Rica states that it has no intention of claiming that its measures are based on levels 
of protection higher than those of the ISPMs, therefore Mexico's claim of vio lation under Article 3.3 
of the SPS Agreement has no merit .3392 
7.2282.   This Panel  recalls that, as the Appellate Body has explained, nothing in Article 11 of the 
DSU requires a panel to examine all legal claims made by the complaining party, and that previous 
panel s have addressed only those issues that they considered necessary for the resolution of the 
matter between the parties.3393 
7.2283.   The Panel notes that Mexico repeats its arguments raised under Article 3.1 in its claims on 
risk assessment, and Costa Rica refers to its arguments regarding the claims on risk assessment. 
The Panel has addressed these arguments at length in its analysis o f the claims under Articles 5.1, 
5.2, 5.3 and 2.2 of the SPS Agreement. In that analysis, the Panel has examined in detail Costa 
 
3384 Costa Rica's firs t written submission, para. 5.39.  
3385 Costa Rica's first written submission, para. 5.40.  
3386 Costa Rica's second written submission, para. 3.11.  
3387 Costa Rica's first written submission, para. 5.45.  
3388 Costa Rica's first written submission, para. 5.46 (citing Appellate Body Report, EC – Hormones , 
para. 171).  
3389 Costa Rica's first written submission, para. 5.47.  
3390 Costa Rica's first written submission, para. 5.50.  
3391 Costa Rica's first written submission, para. 5.53.  
3392 Costa Rica's first written submission, para. 5.56.  
3393 Appellate Body Report, US – Wool Shirts and Blouses , pp. 17 -20. WT/DS524/R  
- 468 - 
  Rica's risk assessments set forth in Reports ARP -006-2016 and ARP -002-2017, including a detailed 
analysis of each element and e ach factor, and of the issues of diversion from intended use, 
spontaneous germination and the determination of absence of ASBVd in Costa Rica. The Panel has 
referred in its analysis to ISPM Nos. 2 and 11 as risk assessment techniques within the meaning of 
Article  5.1 of the SPS  Agreement. The Panel has also referred to ISPM Nos. 6 and 8 as illustrative 
tools for the inputs of a risk assessment related to the determination of pest status in a territory.  
7.2284.   Mexico repeats its arguments related to managed risk an d minimal impact raised under 
Article 3.1 in its claims under Articles 5.6, 5.5 and 2.3 of the SPS Agreement concerning trade 
restrictiveness, and arbitrary or unjustifiable discrimination and disguised restriction on trade. 
Costa  Rica also refers to its a rguments under Articles 5.6, 5.5 and 2.3 of the SPS Agreement. The 
Panel has already analysed the claims concerning those provisions of the SPS Agreement.  
7.2285.   The Panel does not consider it necessary to also make findings under Articles 3.1 and 3.3 
of the SPS Agreement to resolve the matter between the parties.3394 In light of the foregoing, the 
Panel considers it appropriate to exercise judicial economy with regard to Mexico's claims under 
Articles 3.1 and 3.3 of the SPS Agreement.  
7.8.3   Overall conclusion of this sec tion 
7.2286.   The Panel exercises judicial economy with regard to Mexico's claims under Articles 3.1 and 
3.3 of the SPS Agreement . 
7.9  Mexico's claims relating to general conformity with the SPS Agreement  
7.9.1   General introduction to the section  
7.2287.   Mexico claims that the measu res adopted by Costa Rica are inconsistent with the second 
sentence of Article 1.1 and with Article 2.1 of the SPS Agreement, because said measures are 
inconsistent with the provisions of the SPS Agreement that Mexico cites as having been violated.3395 
7.2288.   Costa  Rica asserts that its phytosanitary requirements have been developed and applied in 
accordance with the provisions of the SPS Agreement, and that Mexico has failed to demonstrate 
that the measures are inconsistent with the provisions of the SPS Agreement,  therefore the Panel 
should reject Mexico's claims under Articles 1.1 and 2.1 of the SPS Agreement.3396 
7.2289.   The Panel will examine below whether Mexico has demonstrated that Costa Rica has acted 
inconsistently with Articles 1.1 and 2.1 of the SPS Agreement. To t hat end, the Panel will first set 
forth the relevant legal provisions and the legal standard, and will then conduct the necessary 
analysis.  
7.9.2   The relevant  legal provisions  
7.2290.   Article 1.1 of the SPS Agreement states:  
This Agreement applies to all sanitary and ph ytosanitary measures which may, directly 
or indirectly, affect international trade. Such measures shall be developed and applied 
in accordance with the provisions of this  Agreement.  
7.2291.   Article 2.1 of the SPS Agreement provides:  
 
3394 The Panel observes that in Australia – Salmon , the panel concluded that, having fou nd that the 
measure in dispute was inconsistent with Articles 5.1, 5.5 and 5.6 of the SPS Agreement, and was, on that 
ground, also inconsistent with Articles 2.2 and 2.3, it saw no need to further examine the complainant's claims 
under Article  3. (Panel  Report, Australia – Salmon , para.  8.184).  
3395 Mexico's first written submission, pp. 148 -149; and second written submission, paras.  6 and 329.  
3396 Costa Rica's first written submission, para. 5.270.  WT/DS524/R  
- 469 - 
  Members have the right to take sanitary and phytosanitary measures necessary for the 
protection of human, animal or plant life or health, provided that such measures are 
not inconsistent with the provisions of this Agreement.  
7.9.3   Legal standard under Articles  1.1 and 2.1 of the SPS Agreement  
7.2292.   The second sentence of Article 1.1 of the SPS Agreement requires that all SPS measures 
covered by the SPS Agreement be developed and applied in accordance with the provisions of that 
Agreement.  
7.2293.   The panel in US – Animals  observed that there ar e provisions in other covered agreements 
that are not dissimilar from the language in Article 1.1 of the SPS Agreement, such as Article 1 of 
the Anti -Dumping Agreement and Article 10 of the SCM  Agreement , which also call for all measures 
taken under each r espective agreement to be consistent with the terms of that agreement.3397 The 
panel explained that panels regularly make findings of consequential violation of these provisions 
when complainants include them in their claims.3398 
7.2294.   In this regard, if a panel finds that the respondent has acted inconsistently with any 
provision of the SPS Agreement, and the complainant has included Article 1.1 in its claims, that 
panel could also find an inconsistency with Article 1.1.3399 
7.2295.   Article 2.1 provides that Members have the right to take SPS measures, provided that such 
measures are not inconsistent with the provisions of the SPS Agreement.  
7.2296.   The Appellate Body in India – Agricultural Products  explained that Article 2.1 of the SPS 
Agreement makes explicit the principle  that Members must ensure that their SPS measures comply 
with all of the obligations set out in all provisions of the SPS Agreement.3400 
7.2297.   As in the case of Article 1.1, if a panel finds that the respondent has acted inconsistently 
with any provision of the SP S Agreement, and the complainant has included Article 2.1 in its claims, 
that panel could also find an inconsistency with Article 2.1.  
7.9.4   The Panel's analysis  
7.2298.   Mexico  claims that the phytosanitary measures adopted by Costa Rica are inconsistent 
with the second  sentence of Article 1.1 of the SPS Agreement.3401 
7.2299.   Mexico submits that it has demonstrated that the measures adopted by Costa Rica were 
not developed and applied in accordance with the provisions of the SPS Agreement, in particular 
because (i)  they are not b ased on international standards, guidelines or recommendations; (ii)  they 
are not based on scientific evidence; (iii)  they are maintained without sufficient scientific evidence; 
(iv) they are not based on an assessment, as appropriate to the circumstances,  of the risk to the 
life or health of avocado plants in its territory; (v)  they are more restrictive than required to achieve 
its ALOP; (vi) they arbitrarily or unjustifiably discriminate; and (vii) they are not adapted to regional 
conditions.3402 
7.2300.   Mexico als o claims that Costa Rica's phytosanitary measures are inconsistent with 
Article  2.1 of the SPS Agreement.3403 
7.2301.   Mexico submits that Article 2.1 of the SPS Agreement shows that, although Members retain 
their right to impose SPS measures, these must be applied w ithin the framework established by the 
Agreement itself, and should just one of the obligations under the SPS Agreement not be met that 
 
3397 Panel  Report , US – Animals , para. 7.718.  
3398 Panel  Report , US – Animals , para. 7.718 (citing Panel  Report s, China – Broiler Products , 
paras.  7.512 -7.613; and China  – GOES , para. 7.681).  
3399 See, for example, Panel  Report , US – Animals , para. 7.719.  
3400 Appellate Body Report, India – Agricultural Products , para. 5.21.  
3401 Mexico's first written submission, p. 148.  
3402 Mexico's first written submission, para. 611.  
3403 Mexico's first written submission, p. 149.  WT/DS524/R  
- 470 - 
  is enough to consider that Article 2.1 of the Agreement has been violated.3404 Mexico submits that 
it has demonstrated prima facie  that the measures adopted by Costa Rica are not consistent with 
the provisions of the SPS  Agreement alleged to have been violated and, therefore, the measures 
violate Article 2.1 of the SPS  Agreement.3405 
7.2302.   Costa Rica  states that its phytosanitary requirements have been developed and applied in 
accordance with the provisions of the SPS Agreement, and that Mexico has failed to demonstrate 
that those measures are inconsistent with the provisions of the SPS Agreement, the  Panel should 
therefore reject Mexico's claims under Articles 1.1 and 2.1 of the SPS Agreement.3406 
7.2303.   As this Panel  explained above, if a panel finds that the respondent has acted inconsistently 
with any provision of the SPS Agreement, and the complainant has included Article 1.1 or Article 2.1 
in its claims, that panel could also find an inconsistency with those Articles.  
7.2304.   The Panel has found that Costa Rica has acted inconsistently with Articles 2.2, 5.1, 5.2, 5.3 
and 5.5 of the SPS Agreement, and Mexico has i ncluded Articles 1.1 and 2.1 of the SPS Agreement 
within its claims. As a consequence of the fact that Costa Rica has acted inconsistently with Articles 
2.2, 5.1, 5.2, 5.3 and 5.5 of the SPS Agreement, the Panel also finds that Costa Rica has acted 
inconsi stently with Articles 1.1 and 2.1 of the SPS  Agreement.  
7.9.5   Overall conclusion of this section  
7.2305.   The Panel concludes that Costa Rica has acted inconsistently with Article 1.1 of the SPS 
Agreement, by failing to develop and apply its phytosanitary measures, i.e. Resolutions DSFE -002-
2018 and DSFE -003-2018, which contain the phytosanitary requirements, in accordance with the 
provisions of the SPS Agreement.  
7.2306.   The Panel also concludes that Costa Rica has acted inconsistently with Article 2.1 of the 
SPS Agreement, by a dopting phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -
003-2018, which contain the phytosanitary requirements, that are inconsistent with the provisions 
of the SPS Agreement.  
7.10  Mexico's claims and Costa Rica's defence under the GATT  1994  
7.10.1   General introduction to the section  
7.2307.   Mexico claims that Costa Rica's measures are inconsistent with Articles III:4 and XI:1 of 
the GATT  1994.3407 
7.2308.   Costa Rica submits that Mexico has failed to demonstrate that its phytosanitary 
requirements are inconsiste nt with Articles III:4 and XI:1 of the GATT  1994, and that, in any event, 
its measures are justified by Article XX(b) of the GATT  1994.3408 
7.2309.   The Panel will address below the claims under the GATT  1994. 
7.10.2   The Panel's analysis  
7.2310.   Mexico  submits that Resolutions DSFE -002-2018 and DSFE -003-2018 fall within the scope 
of Article XI:1 of the GATT  19943409, and constitute import and export restrictions on fresh avocado 
fruit, therefore they are inconsistent with Article  IX:1 of the GATT  1994.3410 
 
3404 Mexico's first written submission, para. 613 (citing Appellate Body Report, India – 
Agricultural  Products , para. 5.21.)  
3405 Mexico's first written submission, para. 614.  
3406 Costa Rica's first written submission, para. 5.270.  
3407 Mexico's first written submission, para. 144.  
3408 Costa Rica's first written submission, paras.  6.13, 6.33 -6.34 and 6.45.  
3409 Mexico's first wr itten submission, para. 625.  
3410 Mexico's first written submission, para. 629.  WT/DS524/R  
- 471 - 
  7.2311.   Mexico contends that Mexican a nd Costa Rican avocados are like products within the 
meaning of Article III:4 of the GATT  19943411; that Resolutions DSFE -002-2018 and DSFE -003-2018 
are "laws, regulations and requirements" within the meaning of Article III:4 of the GATT  19943412; 
and that sai d resolutions affect the internal sale and offering for sale of avocados and accord less 
favourable treatment to imported avocados than that accorded to the like product of national origin, 
consequently they are inconsistent with Article  III:4 of the GATT  1994.3413 
7.2312.   Costa Rica , for its part, submits that Mexico has failed to demonstrate that its measures 
are inconsistent with the SPS Agreement, and that any phytosanitary measure adopted by a Member 
in accordance with the SPS Agreement should be considered cons istent with the general disciplines 
of the GATT  1994, without the need for an evaluation to be carried out under the GATT  1994.3414 
7.2313.   Costa Rica contends that its phytosanitary requirements are phytosanitary formalities 
inherent to the import process which are permitted under Article VIII of the GATT  19943415, and that 
Mexico has failed to demonstrate that the measures are excessively onerous such that they 
constitute a restriction of such a magnitude that they limit imports within the meaning of Article  XI:1 
of the GATT  1994.3416 
7.2314.   Cost Rica submits that its phytosanitary requirements are applied at the border to imported 
avocados, they therefore fall within the scope of Article XI:1 of the GATT 19953417, and are not 
covered by Article III:4 of the GATT  1994.3418 Costa Rica adds that, even if the Panel were to consider 
that the phytosanitary requirements are covered by Article III:4 of the GATT, Mexico has failed to 
meet the burden of proof with respect to the likeness between the products and the alleged less 
favourable treatment of imported products.3419 
7.2315.   Costa Rica also maintains  that, should the Panel consider that there is any inconsistency 
with the GATT  1994, the measures under consideration are covered by Article XX(b) of the 
GATT  1994, because these measures seek to protect plant health in Costa Rica and are necessary 
to achieving that goal, and because there is no indication that, by applying them, Costa Rica 
discriminates arbitrarily between countries where the same conditions prevail or that they constitute  
a disguised restriction on international trade.3420 
7.2316.   This Panel  notes that the Appellate Body has explained that nothing in Article 11 of the 
DSU requires a panel to examine all legal claims made by the complaining party, and that previous 
panels have addres sed only those issues that they considered necessary for the resolution of the 
matter between the parties.3421 
7.2317.   With respect to disputes where claims are raised under the GATT  1994 and the 
SPS Agreement, panels often decide that it is not necessary to make findings under the GATT  1994, 
after having found an inconsistency with any of the provisions of the SPS Agreement.3422 
7.2318.   The panel in US – Animals , for example, refers to the reasoning of the panel in 
Australia  – Salmon  in the sense that where any finding s of inconsistency with GATT  1994 provisions 
would also require an examination of whether the measure was justified under Article  XX(b) of the 
GATT  1994, the panel would be led back to the SPS Agreement.3423 The panel in US – Animals  
 
3411 Mexico's first written submission, para. 641.  
3412 Mexico's first written submission, para. 646.  
3413 Mexico's first written submission, para. 656.  
3414 Costa Rica's first written submis sion, para. 6.1; second written submission, para. 4.1.  
3415 Costa Rica's first written submission, para. 6.10; second written submission, para. 4.8.  
3416 Costa Rica's first written submission, para. 6.12; second written submission, para. 4.8.  
3417 Costa Rica's first written submission, para. 6.22; second written submission, para. 4.7.  
3418 Costa Rica's first written submission, para. 6.23; second written submiss ion, para. 4.7.  
3419 Costa Rica's first written submission, para. 6.24.  
3420 Costa Rica's first written submission, para. 6.34; second written submission, paras.  4.10-4.11. 
3421 Appellate Body Report, US – Wool Shirts and Blouses , pp. 17 -20. 
3422 See, for example, Panel  Report s, EC – Hormones (US) , para.  8.272; EC – Hormones ( Canada ), 
para. 8.275; Australia – Salmon , para.  8.185; Japan – Apples , para.  8.328; EC – Approval and Marketing of 
Biotech Products , paras.  7.3422 and 7.3429; India – Agricul tural Products , para.  7.803; and US – Animals , 
para. 7.732.  
3423 Panel  Report , US – Animals , para. 7.730 (citing Panel  Report s, Australia – Salmon , para. 7.19; and 
US – Poultry (China) , para. 7.481).  WT/DS524/R  
- 472 - 
  considered that such a c onclusion would be bolstered by Article 2.4 of the SPS Agreement, which 
states that SPS measures which conform to the relevant provisions of the SPS Agreement shall be 
presumed to be in accordance with the obligations under the GATT  1994 which relate to th e use of 
SPS measures, in particular Article XX(b).3424 
7.2319.   The Panel has found that Costa Rica has acted inconsistently with Articles 2.2, 5.1, 5.2, 5.3 
and 5.5 of the SPS Agreement. The Panel does not consider it necessary to make findings under the 
GATT  1994 to resolve the matter between the parties.3425 In light of the foregoing, the Panel 
considers it appropriate to exercise judicial economy with regard to Mexico's claims under 
Articles  III:4 and XI:1 of the GATT  1994, and to Costa Rica's defence und er Article XX(b) of 
the GATT  1994.  
7.10.3   Overall conclusion of this section  
7.2320.   The Panel exercises judicial economy with regard to Mexico's claims under Articles  III:4 
and XI:1 of the GATT  1994, and to Costa Rica's defence under Article  XX(b) of the GATT  1994.  
8  CONC LUSIONS AND RECOMMENDATIONS  
8.1.  In light of the foregoing findings, the Panel has reached the following conclusions:  
a. Regarding the scope of the SPS Agreement:  
i. Mexico has demonstrated that Resolutions DSFE -002-2018 and DSFE -003-2018, which 
contain the phytosani tary requirements, individually constitute phytosanitary 
measures subject to the SPS Agreement.  
ii. Mexico has failed to demonstrate that Reports ARP -002-2017 and ARP -006-2016 and 
Manual NR -ARP-PO-01_M -01 individually constitute phytosanitary measures subject 
to the SPS Agreement.  
iii. Mexico has failed to demonstrate the existence of one phytosanitary measure 
consisting of the five measures identified by Mexico  taken  as a whole . However, in 
order to analyse the claims put forward by Mexico, this Panel decided that it would 
read Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the 
phytosanitary requirements, together  with Reports ARP -002-2017 and ARP -006-2016 
and Manual NR -ARP-PO-01_M -01, and would make an y necessary findings and 
recommendations in relation  to those instruments, with a view to securing a positive 
solution to the dispute.  
b. Regarding Mexico's claims on risk assessment:  
i. Costa Rica has acted inconsistently with Article 5.1 of the SPS Agreement, by failing 
to ensure that its phytosanitary measures  are based on an assessment, as appropriate 
to the circumstances, of the risks to plant life or health.  
ii. Costa Rica has acted inconsistently with Article 5.2 of the SPS Agreement, because, in 
the assessment of risks, it failed to take into account available  scientific evidence and 
the prevalence of specific disease or pests.  
iii. Costa Rica has acted inconsistently with Article 5.3 of the SPS Agreement, because, in 
assessing the risk to plant life or health and determining the measure to be applied for 
achieving the appropriate level of phytosanitary protection from such risk, it failed to 
take into account as relevant economic factors: the potential damage in terms of loss 
of production or sales in the event of the entry, establishment or spread of ASBVd; the 
 
3424 Panel  Report , US – Animals , para. 7.730.  
3425 The Panel obse rves that Mexico's claims under the GATT  1994 pertain only to the consistency with 
the GATT  1994 of Resolutions DSFE -002-2018 and DSFE -003-2018, which contain the phytosanitary 
requirements. The Panel has found that those measures are inconsistent with certain provisions of the 
SPS Agreement.  WT/DS524/R  
- 473 - 
  costs of control or eradication in Costa Rica's territory; and the relative cost -
effectiveness of alternative approaches to limiting risks.  
iv. Costa Rica has acted inconsistently with Article 2.2 of the SPS Agreement, by failing 
to ensure that its phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -
003-2018, which contain the phytosanitary requirements, are based on scientific 
principles and are not maintained without sufficient scientific evidence.  
c. Regarding  Mexico's claims on discrimination:  
i. In resp ect of the first two situations that Mexico has indicated as comparable, i.e. fresh 
avocados imported for consumption from countries where ASBVd is present vis-à-vis 
domestic Costa Rican avocados in which ASBVd is likely to be present, there are 
arbitrary or unjustifiable distinctions in the levels of protection that Costa Rica 
considers to be appropriate in different situations, which result in discrimination or a 
disguised restriction on international trade. Therefore, Costa Rica has acted 
inconsistently with Article  5.5 of the SPS Agreement.  
ii. Costa Rica's phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-
2018, which contain the phytosanitary requirements, arbitrarily or unjustifiably 
discriminate between its own territory and that of Mexi co, and are applied in a manner 
which constitutes a disguised restriction on international trade. Thus, Costa Rica has 
acted inconsistently with the first and second sentences of Article 2.3 of the SPS 
Agreement.  
d. Regarding  Mexico's claim on trade restricti veness, Mexico has failed to demonstrate that 
Costa Rica's phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-
2018, which contain the phytosanitary requirements, are more trade -restrictive than 
required to achieve its appropriate level of phytosanitary protection, taking into account 
technical and economic feasibility. Therefore, Mexico has failed to demonstrate that 
Costa  Rica has acted inconsistently with Article 5.6 of the SPS Agreement.  
e. Regarding the claims concerning adaptation to regional conditions:  
i. Mexico has failed to demonstrate that Costa Rica has acted inconsistently with its 
obligation under the first sentence of Article 6.1 of the SPS  Agreement to ensure that 
its sanitary or phytosanitary me asures are adapted to the phytosanitary characteristics 
of the area to which the product is destined.  
ii. Mexico has failed to demonstrate that Costa Rica has acted inconsistently with its 
obligation under the second sentence of Article 6.1, in assessing the s anitary or 
phytosanitary characteristics of a region, to take into account, inter alia , the level of 
prevalence of specific diseases or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be developed  by the 
relevant international organizations.  
f. Regarding Mexico's claims on harmonization, the Panel exercises judicial economy with 
regard to Mexico's claims under Articles 3.1 and 3.3 of the SPS Agreement.  
g. Regarding  Mexico's claims relating to general con formity with the SPS Agreement:  
i. Costa Rica has acted inconsistently with Article 1.1 of the SPS Agreement, by failing 
to develop and apply its phytosanitary measures, i.e. Resolutions DSFE -002-2018 and 
DSFE -003-2018, which contain the phytosanitary require ments, in accordance with 
the provisions of the SPS Agreement.  
ii. Costa Rica has acted inconsistently with Article 2.1 of the SPS Agreement, by adopting 
phytosanitary measures, i.e. Resolutions DSFE -002-2018 and DSFE -003-2018, which 
contain the phytosanitary requirements, that are inconsistent with the provisions of 
the SPS Agreement.  WT/DS524/R  
- 474 - 
  h. Regarding Mexico's claims and Costa Rica's defence under the GATT  1994, the Panel 
exercises judicial economy with regard to Mexico's claims under Articles  III:4 and XI:1 of 
the G ATT 1994, and to Costa Rica's defence under Article  XX(b) of the GATT  1994.  
8.2.  Pursuant to Article 3.8 of the DSU, in cases where there is an 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 accruing under that agreement. In view of the foregoing, the 
Panel concludes that, insofar as Costa Rica has acted inconsistently with the provisions of the SPS 
Agreement, it has nullified or  impaired benefits accruing to Mexico under that Agreement.  
8.3.  Pursuant to Article 19.1 of the DSU, the Panel recommends to the DSB that Costa Rica be asked 
to bring its measures into conformity with its obligations under the SPS Agreement.  
__________