WT/DS524/R/Add.1  
13 April 2022 
(22-3008) Page: 1/85 
 Original:  Spanish  
 
  
COSTA RICA – MEASURES CONCERNING  THE IMPORTATION OF  
FRESH AVOCADOS  FROM MEXICO  
REPORT OF THE PANEL  
Addendum  
This ad dendum contains the annexes A to D of the Report of the Panel to be found in 
document  WT/DS524/R . 
 
_______________  
 
 
  WT/DS524/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Conten ts Page 
Annex A-1 Working Procedures of the Panel  4 
Annex A-2 Additional Working Procedures of the Panel for consultations with experts  11 
Annex A-3 Additional Working Procedures of the Panel on meetings with remote 
participants  14 
ANNEX B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex B-1 Integrated executive summary of the arguments of  Mexico 18 
Annex B-2 Integrated executive summary of the arguments of Costa Rica  44 
ANNEX C 
ARGUMENTS OF THE THIR D 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 
PRELIMINAR Y RESOLUTION OF THE PANEL  
Contents  Page  
Annex D-1 Preliminar y Resolution of the Panel  78 
 
 WT/DS524/R/Add.1  
 
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  ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel for consultations with experts  11 
Annex  A-3 Additional Working Procedures of the Panel on meetings with remote 
participants  14 
 WT/DS524/R/Add.1  
 
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 16  July 2019  
 
Revis ed on 25 June 2021 
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU") . In addition, the 
following Working Procedures apply.  
 (2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
 (3) Consistent with Article 13 of the DSU and Article 11.2 of the Agreement on the 
Applica tion of Sanitary and Phytosanitary Measures ("SPS Agreement"), the Panel may seek 
expert advice from experts and from international organizations and adopt additional 
procedures to this end, as appropriate.  
Confidentiality  
 
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential . Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
 (2) In accordance with the DSU, nothing in these  Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
 (3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provid e a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
 (4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after co nsultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable  adopted by the Panel.  
 (2) Each party shall also submit to the Panel, prior to the second substantive meeting of 
the Panel with the parties, a written rebuttal, in accordance with the timetable adopted by the 
Panel.  
 (3) Each third party that chooses to m ake a written submission prior to the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
 (4) The Panel may invite the parties or third parties to make additional submissions in the 
course of the proceeding, including with respect to requests for preliminary rulings in 
accordance with paragraph 4 below.  WT/DS524/R/Add.1  
 
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  Preliminary rulings  
 
4. (1) If Costa Rica considers that the Panel should issue a ruling prior to the issuance of the 
Report that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel, the following procedure applies . Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. Costa Rica shal l submit any request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel . 
Mexico shall submit its response to the request prior to the first substantive meeting of 
the Pa nel, at a time to be determined by the Panel in light of the request.  
b.  The Panel may issue a preliminary ruling on the issues raised in such a preliminary 
ruling request prior to the submission of the written rebuttals, if possible, or the Panel 
may def er a ruling on the issues raised by a preliminary ruling request until it issues its 
Report to the parties.  
c.  In the event that the Panel finds it appropriate to issue a preliminary ruling prior to the 
issuance of its Report, the Panel may provide reason s for the ruling at the time that the 
ruling is made, or subsequently in its Report.  
d. Any request for such a preliminary ruling by the respondent before the first meeting, 
and any subsequent submissions of the parties in relation thereto before the first  
meeting, shall be served on third parties . The 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 . Any preliminary ruling issued by th e Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
 (2) This procedure is without prejudice to the parties' right to request other types of 
preliminar y or procedural rulings in the course of the proceeding, and to the procedures that 
the Panel may follow with respect to such requests.  
Evidence  
 
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, e xcept evidence necessary for purposes of rebuttal, or evidence 
necessary for answering questions or commenting on answers provided by the other party . 
Additional exceptions may be granted upon a showing of good cause.  
 (2) If any new evidence has been admi tted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) Where the original language of an exhibit or portion thereof is not a WTO working 
language, the submitt ing party or third party shall simultaneously submit a translation of the 
exhibit or relevant portion into the WTO working language of the submission . The Panel may 
grant reasonable extensions of time for the translation of exhibits upon a showing of good 
cause.  
 (2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question . Any objection shall be accompanied 
by a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on 
its cover page . Exhibits submitted by Mexico should be numbered with MEX -1, MEX -2, etc. 
Exhibits submitted by Co sta Rica should be numbered CRI -1, CRI -2, etc. I f the last exhibit in 
connection with the first submission was numbered MEX -5, the first exhibit in connection with 
the next submission thus would be numbered MEX -6. WT/DS524/R/Add.1  
 
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   (2) Each party shall provide an updated l ist of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
 (3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is s ubmitting that document again.  
 (4) If a party includes a hyperlink to the content of a website in one of its submissions and 
wishes for the cited content to form part of the official record, this party shall provide the cited 
content of the website as an exhibit.  
Editorial Guide  
 
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions 
(electronic  copy provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Prior to any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally in the course of a meeting . The Panel may ask di fferent 
or additional questions at the meeting.  
b. The Panel may put questions to the parties and third parties orally in the course of a 
meeting, and in writing following the meeting, as provided for in paragraphs  15 and 21 
below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it. 
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 (2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceed ing and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days preceding the first day of the meeting with the 
Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of 
interpreters.  
15. The first substantive meeting of the Panel with the parti es shall be conducted as follows:  
 a. The Panel shall invite Mexico to make an opening statement to present its case first . 
Subsequently, the Panel shall invite Costa Rica to present its point of view . Before each 
party takes the floor, it shall provide th e Panel and other participants at the meeting 
with a provisional written version of its statement . In the event that interpretation is 
needed, each party shall provide additional copies for the interpreters.  WT/DS524/R/Add.1  
 
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   b. Each party should avoid lengthy repetition of the arguments in its submissions . Each 
party is invited to limit the duration of its opening statement to 45 minutes . If either 
party considers that it requires more time for its opening statement, it should inform 
the Panel and the other par ty at least five days prior to the meeting, and it should also 
provide, at the same time, an estimate of the length of its statement . The Panel will 
accord equal time to both parties for their statements.  
 c. After the conclusion of the opening statements,  the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
 d. The Panel may subsequently pose questions to the parties.  
 e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Mexico presenting its statement first . Before 
each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its closing statement, if available.  
 f. Following the meeting:  
  i. Each party shall submit a final written version of its opening statement and, if 
applicable, of the exhibits attached to this statement, no later than 5.00  p.m. 
(Geneva time) on the second working day following the meeting . At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
  ii. Each party shall send in writing, within the timeframe established by the Panel 
prior to the end of the meeting, a ny questions to the other party to which it wishes 
to receive a response in writing.  
  iii. The Panel shall send in writing, within the timeframe established by the Panel 
prior to the end of the meeting, any questions to the parties to which it wishes to 
receive a response in writing.  
  iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the timeframe established by the Panel 
prior to the end of the meeting.  
16. The second substantiv e meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that Costa Rica shall be given 
the opportunity to present its oral statement first . If Costa Rica chooses not to avail its elf of 
that right, it shall inform the Panel and the other party no later than 5.00  p.m. (Geneva time) 
three working days day prior to the meeting . In that case, Mexico shall present its opening 
statement first, followed by Costa Rica . The party that prese nted its opening statement first 
shall present its closing statement first.  
Third party session  
 
17. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose.  
18. Each third  party shall indicate to the Panel whether it intends to make an oral statement during 
the third party session, along with the list of members of its delegation, in advance of this 
session and no later than 5.00 p.m. (Geneva time) three working days before  the third party 
session of the meeting with the Panel.  
19. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 (2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these 
Working  Procedures, particularly with regard to the confidentiality of the procee ding and the 
submissions of the parties and third parties.  WT/DS524/R/Add.1  
 
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  20. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, 
to allow suf ficient time to ensure availability of interpreters.  
21. The third party session shall be conducted as follows:  
 a. All parties and third parties may be present during the entirety of this session.  
 b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
alphabetical order . Each third party making an oral statement at the third party session 
shall provide the Panel and other participants with a provisional written version of its 
statement before it takes the floor . If interpretation of a third party's oral statement is 
needed, that third party shall provide additional copies for the interpreters.  
 c. Each third party should limit the length of its statement to 15  minutes, and avoid 
repetition of the arguments already in its  submission . If a third party considers that it 
requires more time for its opening statement, it should inform the Panel and the parties 
at least five days prior to the meeting, and it should also provide, at the same time, an 
estimate of the length of its  statement . The Panel will accord equal time to all third 
parties for their statements.  
 d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's submission or statement.  
 e. The Panel may subsequently pose questions to any third party.  
 f. Following the third party session:  
  i. Each third party shall submit the final written version of its oral statement, no 
later than  5.00 p.m. (Geneva time) on the first working day following the 
meeting.  
  ii. Each party may send in writing, within the timeframe to be established by the 
Panel before the end of the meeting, any questions to a third party or parties to 
which it wishes t o receive a response in writing.  
  iii. The Panel may send in writing, within the timeframe to be established by the 
Panel before the end of the meeting, any questions to a third party or parties to 
which it wishes to receive a response in writing.  
  iv. Each third party choosing to do so shall respond in writing to written questions 
from the Panel or a party, within a timeframe established by the Panel before the 
end of the meeting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of the integrated executive summaries provided by the parties and 
third parties, which shall be annexed as addenda to the report . These integrated executiv e 
summaries shall not in any way serve as a substitute for the submissions of the parties and 
third parties in the Panel's examination of the case.  
23. Each party shall submit an integrated executive summary . The integrated executive summary 
shall summariz e the facts and arguments as presented to the Panel in the party's written 
submissions, oral statements, and if possible, its responses to questions following the 
substantive meetings . The timing of the submission of the integrated executive summary shall 
be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  WT/DS524/R/Add.1  
 
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  25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in a ny other submissions to the Panel for which a deadline may not 
be specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the tim etable adopted by the Panel . 
This integrated executive summary may also include a summary of responses to questions, if 
relevant . The executive summary to be provided by each third party shall not exceed 
six pages . If a third party submission and/or oral s tatement does not exceed six  pages in total, 
this may serve as the executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the int erim report and request a further meeting with the Panel, in 
accordance with the timetable adopted by the Panel . The right to request such a meeting shall 
be exercised no later than at the time the written request for review is submitted.  
28. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the 
timetable adopted by the Panel . Such comments shall be limited to commenting on the other 
party's written request for review.  
Interim and Final Report  
 
29. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
30. The following proce dures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
 a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS Registry (office No.  2047).  
 b. Each party and third party shall submit two paper copies of its submissions and one 
paper copy of its Exhibits to the Panel by 5.00  p.m. (Geneva time) on the due dates 
established by the Panel . The DS Registrar shall stamp the documents with the date 
and time of submission . The paper version submitted to the DS Registry shall constitute 
the official version for the purposes of submission deadlines and the record of the 
dispute . If any documents are in a format that is impractical to submit as a paper copy, 
then the party may submit such documents to the DS Registrar by email or on a 
CD-ROM, DVD or USB key only.  
 c. Each party and third party shall also send an email to the DS Registry by 5.00  p.m. 
(Geneva time) on the due dates established by the Panel, atta ching an electronic copy, 
preferably in Microsoft Word format and PDF format, of all documents that it submits in 
paper . All such emails to the Panel shall be addressed to DSRegistry@wto.org , and 
copied to other WT O Secretariat staff whose email addresses have been provided to the 
parties in the course of the proceeding . Where it is not possible to attach all the Exhibits 
to one email, the submitting party or third party shall provide the DS Registry with four 
copies of the Exhibits on USB keys, CD -ROMs or DVDs.  
 d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24  hours following the deadline for 
the submission of the paper ver sions. If the parties or third parties have any questions 
or technical difficulties relating to the DDSR, they are invited to consult the DDSR User 
Guide (electronic copy provided) or contact the DS Registry at DSRegistry@wto.org . WT/DS524/R/Add.1  
 
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   e. Each party shall serve any document submitted to the Panel directly on the other party . 
Each party shall, in addition, serve directly on the third parties its first written 
submissions in advance of the first substantive meeting with t he Panel . Each third party 
shall serve any document submitted to the Panel directly on the parties and on all other 
third parties . A party or third party may serve its documents on another party or third 
party only by email or other electronic format accep table to the recipient without having 
to serve a paper copy, unless the recipient party or third party has previously requested 
a paper copy . Each party and third party shall confirm, in writing, that copies have been 
served on the parties and third partie s, as appropriate, at the time it provides each 
document to the Panel.  
 f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) 
on the d ue dates established by the Panel.  
 g. As a general rule, all communications from the Panel to the parties and third parties will 
be via email . In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
 
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mis takes) . Any such request 
should identify the nature of the errors to be corrected, and should be made promptly following 
the filing of the submission in question.  
 WT/DS524/R/Add.1  
 
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL FOR CONSULTATIONS  
WITH EXPERTS1 
Adopted on 1 8 October  2019 
Revised on 1 1 February  2021 
 
1. In the course of the proceedings, the Panel shall determine whether there is a need to seek expert 
advice .2 In addressing matters concerning scientific and/or technica l advice from experts, the Panel 
shall have regard to the provisions of the DSU and, inter alia , to the objective of conducting these 
proceedings in an efficient and timely manner and at a reasonable cost . Should the Panel decide to 
consult experts, the pr ocedures described below shall apply.  
 
2. The Panel may ask any international organization or relevant entity, as well as the parties, for 
suggestions of possible experts . Parties shall not engage in direct contact with the individuals 
suggested (whether b y the parties or the international organizations or relevant entities) on any 
matter related to this dispute.  
 
3. The Panel shall provide the parties with a list of possible experts, their curricula vitae and 
declarations of potential conflicts of interest . In their declaration, each potential expert shall be 
instructed to disclose information which shall include the following:  
 
a. financial interests (e.g. investments, loans, shares, interests or other debts) ; business 
interests (e.g. directorship or other contractual interests) ; and property interests relevant 
to the dispute in question;  
 
b. professional interests (e.g. a past or present relationship with private clients or the relevant 
industry, or any interests the person may have in  domestic or international proceedings, 
and their implications, where these involve issues similar to those addressed in the dispute 
in question);  
 
c. other active interests (e.g. active participation in public interest groups or other 
organizations which may have a declared agenda relevant to the dispute in question);  
 
d. considered statements of personal opinion on issues relevant to the dispute in question 
(e.g. publications, public statements);  
 
e. employment or family interests (e.g. the possibility of  any indirect advantage or any 
likelihood of pressure which could arise from their employer, business associates or 
immediate family members) ; and 
 
f. any other relevant information.  
 
4. Parties shall have the opportunity to comment and to make known any c ompelling objections to 
any particular expert.  
 
5. The Panel shall select the experts on the basis of their qualifications and the need for specialized 
scientific expertise, and shall not select experts whom the Panel considers to have a conflict of 
intere st 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.  
 
 
1 These procedures are adopted in accordance with paragraph 1(3) of the Working Procedures of 
the Panel adopted on 16 July 2019.  
2 For the purpose of these Working Procedures, the term "exp ert" may be used to refer to individuals, 
institutions, research bodies or international organizations.  WT/DS524/R/Add.1  
 
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  6. The Pane l shall inform the parties of the experts and international organizations or relevant 
entities it has decided to consult, in accordance with the timetable adopted by the Panel . Experts 
shall act in their personal capacities and not as representatives of an y entity . However, should the 
Panel seek advice from an international organization or relevant entity, the advice received shall be 
deemed to be received from the international organization or relevant entity and not the individual 
staff members or represe ntatives of the international organization or institution . Moreover, any staff 
members of such international organizations or relevant entities that attend a meeting with the 
Panel, shall be deemed to do so in a representative capacity, on behalf of the re spective organization.  
 
7. The experts shall be subject to the DSB's Rules of Conduct for the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (WT/DSB/RC/1), a copy of which shall be provided 
to them by the Panel.  
 
8. The Panel sh all prepare written questions for the experts . The parties shall be invited to suggest 
a limited number of questions that the Panel could include in its questions to the experts . The experts 
shall be requested to provide responses in writing to the Panel's  questions within a time -period 
specified by the Panel . The experts shall be requested to respond only to questions on which they 
have sufficient knowledge . The Panel shall provide the parties with copies of the responses, in 
accordance with the timetable adopted by the Panel . The parties shall have the opportunity to 
comment in writing on the responses from the experts.  
 
9. The Panel may provide the experts, on a confidential basis, with the parties' submissions, 
including exhibits, as well as with any add itional information deemed necessary . The experts shall 
have the opportunity to request, through the Panel, additional factual information or clarifications 
from the parties, if it shall aid them in answering the Panel's questions.  
 
10. 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 
ensure that:  
 
a. the parties' comments on the experts' responses are provide d to all experts;  
b. each expert is provided with the other experts' responses to the Panel's questions ; and 
c. each expert is provided with any advance questions from the parties to the experts, in 
accordance with paragraph 11.b. below.  
11. The Panel's me eting with the experts would be conducted as follows:  
a. The Panel shall invite each expert to make an opening statement . This statement may 
include any clarification of their written responses to the Panel questions requested by the 
Panel or the parties, or information complementary to these responses . The experts that 
intend to make an opening statement shall provide the Panel and the parties with written 
versions of their statements, before they take the floor.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask the experts questions or make comments through the Panel . To help the experts 
prepare for the meeting, each party may send in writing in advance of the meeting, within 
a time-frame  to be determined by the Panel, any questions to the experts to which it wishes 
to receive an oral response at the meeting . Each expert shall be invited to respond orally 
to the questions asked by the parties during the meeting and to react to the parties' 
comments.  
c. The Pan el may subsequently pose questions to the experts . The expert to whom the 
question is addressed shall be invited to respond orally to the Panel's questions . The Panel 
may also give the other experts the opportunity to ask questions or make comments.  
d. Once the questioning has concluded, the Panel shall afford each expert an opportunity to 
present a brief closing statement that may include further clarification regarding their 
responses, or information supplementing those responses.  WT/DS524/R/Add.1  
 
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  e. The Panel may pose ad ditional written questions or schedule additional meetings with the 
experts if necessary.  
12. The Secretariat shall prepare a compilation of the experts' written replies to the Panel's 
questions, as well as a full transcript of any meeting with the experts  for inclusion in the record of 
the Panel proceeding, but these shall not be annexed to the Panel report . The experts shall be given 
an opportunity to verify, before the texts are finalized, the drafts of these texts to ensure that they 
accurately reflect the information they provided . The parties shall likewise be given an opportunity 
to verify that the transcript of any meeting with the experts accurately reflects the parties' own 
interventions.  
 WT/DS524/R/Add.1  
 
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  ANNEX A -3 
 
ADDITIONAL WORKING PROCEDURES O F THE PANEL ON MEETINGS WITH  
REMOTE PARTICIPANTS  
Adopted on 12  November  2020  
 
General  
 
1. These additional Working Procedures set out terms for holding meetings with the Panel 
where all participants attend remotely via the Cisco Webex platform.  
Definitions  
 
2. For the purposes of these Procedures:  
"Host" means the designated person within the W TO Secretariat responsible for the 
management of the platform for remote participants to participate in the meeting with the 
Panel.  
 
"Platform " means the software or system through which remote participants participate 
in the meeting with the Panel . In these Procedures, the platform used is Cisco Webex.  
 
"Remote participant " means any person participating in the meeting with the Panel by 
remote means . This includes members of the parties' delegations, experts appointed by 
the Panel, and interpreters.  
 
Equip ment and technical requirements  
 
3. Each party shall ensure that the remote participants from its delegation join the meeting 
using the designated platform, and meet the minimum equipment and technical 
requirements set out by the platform provider for the effective conduct of the meeting.  
 
Technical support  
 
4. (1) The host shall assist participants in the planning, tests and holding of the virtual meeting, 
and shall provide remote participants with technical assistance relating to the platform and 
its func tionality.  
(2) In order to ensure the timely provision of technical assistance, the host shall prioritize 
assistance for remote participants who are designated as lead speakers in the delegation 
lists. 
(3) In view of the limitations of remote assistance, e ach party shall be responsible for its 
own technical support relating to computer and interconnection systems.  
Pre-meeting  
 
Registration  
 
5. Each party shall provide to the Panel, no later than 5:00 p.m. (Geneva time) on Tuesday 
1 December  2020, the list of the members of its delegation, using the form that shall be 
provided to it by the Panel Secretary . This list shall include all the members of each party's 
delegation . Each party shall indicate which of their remote participants  are to be their lead 
speakers.  WT/DS524/R/Add.1  
 
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  Advance testing  
 
6. Remote participants shall hold two testing sessions with the WTO Secretariat before the 
meeting with the Panel . One of these shall be a joint session with all the meeting's remote 
participants, including the panelists joining remotely . These sessions shall seek to reflect, as 
far as possible, the conditions of the proposed meeting . Remote participants should make 
themselves available for the test sessions.  
Confidentiality and security  
 
7. The meeting shall be confidential . All remote participants shall follow any security and 
confidentiality protocols and guidelines provided by the Panel in advance of the meeting.  
8. Remote participants shall connect to the virtual meeting via a secure Internet  connection 
and shall avoid using any open or public Internet connection.  
9. Participants are strictly forbidden from:  
(1) Recording the virtual meeting, or any part of it, via audio, video or screen shot.  
(2) Allowing anyone who is not a participant to ac cess, see, listen to or record the virtual 
meeting or any part of it, via audio, video or screen shot.  
Conduct of the meeting  
 
Access to the virtual meeting room  
 
10 (1) The host shall invite remote participants via email to join the virtual meeting room o n 
the designated platform.  
(2) For security reasons, access to the virtual meeting room shall be password -protected 
and limited to authorized participants . Remote participants should not forward or share the 
meeting link or password to anyone who is not an  authorized participant, or retransmit the 
signal, image or audio by any other means to anyone who is not a participant.  
(3) Each party shall ensure that only authorized members of its delegation enter the virtual 
meeting room.  
Advance log -on 
 
11. (1) The virtual meeting room shall be accessible 60 minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
(2) Remote participants shall log on to the platform at least 30 minutes in advance of the 
scheduled start time of  each session of the meeting with the Panel.  
 
Document sharing  
 
12. (1) Before each party or expert takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement.  
(2) Any participant w ishing to share a document with the other participants during the 
meeting shall ensure that all the other participants have received it before referring to that 
document during the meeting.  
 WT/DS524/R/Add.1  
 
- 16 - 
  Technical issues  
 
13. (1) Each party shall designate a contact pe rson who can liaise with the host during the course 
of the meeting to report any technical issues that arise with respect to the platform . The 
host can be contacted via the platform, by sending an email to leslie.stephenson@wto.org, 
or by calling +41(0) 22  739 6148.  
(2) The Panel shall pause the session until the technical issue is resolved, unless the affected 
party agrees to continue the session without the issue having been resolved.  
 
Relationship with the Working Procedures of the Panel and the addition al 
Working  Procedures of the Panel for Consultations with Experts  
 
14. These additional Working Procedures complement the Working Procedures of the Panel, 
adopted on 16  July 2019, and the additional Working Procedures of the Panel for 
Consultations with Experts, adopted on 18  October  2019, and take precedence over them in 
the event of any conflict.  
_______________  
 WT/DS524/R/Add.1  
 
- 17 - 
  ANNEX B 
ARGUMENTS OF THE  PARTIES 
Conten ts Page 
Annex B-1 Integrated executive summary of the arguments of Mexico 18 
Annex B-2 Integrated executive summary of the arguments of Costa Rica  44 
 
 WT/DS524/R/Add.1  
 
- 18 - 
  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  MEXICO 
I. INTRODUCTION  
 
1. Mexico initiated this proceeding because of measures imposed by the Servicio Fitosanitario 
del Estado , SFE (State Phytosanitary Service)1 of Costa Rica under the pretext of mitigating an 
alleged risk associated with the importation of fresh avocados for consumption from Mexico . While 
Mexico recognizes Costa Rica's right to adopt phytosanitary measures, it also notes that the adoption 
of such measures must be in strict observance of and compli ance with the obligations set out in the 
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) . In 
particular, Mexico considers that Costa Rica should have based its measures on a risk assessment 
based on scientific principles  and evidence, appropriate to the circumstances and taking into account 
risk assessment techniques developed by the relevant international organizations.  
2. As context, the trade in fresh avocados for consumption between Mexico and Costa  Rica began 
in 1993  with the signing of the Free Trade Agreement between the United Mexican States and the 
Republics of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua (Single FTA) . The trade 
flow of fresh avocados for consumption from Mexico remained uninterrupte d and with steady growth 
until 2015, when Costa Rica imposed the measures that are the subject of this dispute . During that 
period, both nations maintained close trade links in the trade in fresh avocados for consumption, 
reaching a total volume of 137,492 .46 tons of fresh avocados for consumption from Mexico . In more 
than 20 years of trade, not a single case of the occurrence of Avocado Sunblotch Viroid disease, or 
the ASBVd  pathogen has ever been reported in fresh avocados imported from Mexico . Costa Rica 
has also never indicated the existence of cultural practices involving diversion from intended use or 
the registration of an alleged spontaneous germination from the more t han 687,462,300 avocado 
seeds resulting from this trade.  
3. Over more than 20 years of bilateral trade, the product from Mexico became very important 
in the Costa Rican market, which had an impact on the fall in demand for Costa Rican native 
avocados . Mexico considers that this situation led the SFE to design and implement measures that 
would benefit the domestic avocado industry . In fact, since the imposition of the measures that 
preceded those currently at issue in this dispute, avocado production in Cost a Rica has increased by 
almost 1,000 % (912.65 %). This situation was complemented by the granting of support to domestic 
avocado producers through the National Plan to Strengthen the Avocado Sector.  
4. Costa Rica argues that there is an allegedly high risk associated with the likelihood of entry, 
establishment and spread of ASBVd via fresh avocados imported for consumption . However, this 
assertion is at odds with its own declaration of absence of ASBVd . Indeed, there is an insurmountable 
contradiction betwee n the two assertions as they are mutually exclusive if one considers that, despite 
maintaining uninterrupted trade with Mexico and other countries with ASBVd for more than 20 years, 
Costa Rica alleges that there has not been a single outbreak or symptom of  ASBVd in its territory as 
a result of such trade . Therefore, the logical conclusion to be drawn is that:  
i. there is no or negligible risk associated with the likelihood of entry, establishment and spread 
of ASBVd via fresh avocado for consumption ; or 
ii. ASBVd is already present in Costa Rica.  
5. Indeed, Costa Rica's determination of absence is questionable . Mexico has submitted evidence 
suggesting that ASBVd is present in the territory of Costa Rica . For example, Mexico argued that, 
even after the imposition of the measures in 2015, Costa Rica continued to import fresh avocados 
from countries with ASBVd present in their territories (namely Peru, Guatemala and the United 
States) . In addition, it was demo nstrated that the viroid has been detected in several of the 
shipments from those countries . This situation leads to the presumption that Costa Rica has openly 
 
1 The SFE is a body attached to the Ministerio de Agricultura y Ganadería  Ministry of Agriculture 
and Livestock (MAG) of Costa Rica.  WT/DS524/R/Add.1  
 
- 19 - 
  tolerated the alleged high risk from the entry of some shipments that – following its own border  
inspection methodology – were not tested and that, in addition, have been distributed throughout 
the territory of Costa Rica . Furthermore, this highlights the lack of rigour in the surveillance system 
implemented by Costa Rica.  
6 In any event, the existen ce of this contradiction is prima facie evidence that Costa  Rica's 
measures : (i) are not necessary ; (ii) are not based on sufficient scientific evidence ; (iii) are not 
based on a risk assessment appropriate to the circumstances, taking into account the ris k 
assessment techniques developed by the International Plant Protection Convention (IPPC) ; and (iv) 
are not based on relevant international standards.  
7. It should be noted that the presence of ASBVd  in Mexican territory has not had a negative 
impact on the protection and production of avocados . On the contrary, Mexico has established itself 
as the world's leading avocado producer and exporter . In fact, other major avocado producing and 
exporting coun tries, like Mexico, do not regulate ASBVd as a quarantine pest in fresh avocados for 
consumption, namely the Dominican Republic, Peru, Indonesia, Colombia and the United States.  
8. Although there are countries that regulate ASBVd as a quarantine pest , thei r measures are 
based on a proper risk analysis and in appropriate circumstances . For example, Exempt Resolution 
No. 8182 issued by Chile on 2 3 December  2013 prohibits the use of avocado ( Persea americana ) 
seeds for propagation, the origin of which is fresh  avocados for consumption imported from countries 
of origin where ASBVd is present . It is worth noting that Chile did not implement measures that 
would impose a burden on the exporting country . Another example is the case of New Zealand, 
which established specific phytosanitary standards regulating the importation of avocados following 
its pest risk analysis (PRA) for "Import Health Standard Commodity Sub -class: Fresh 
Fruit/Vegetables Avocado, Persea Americana  From Australia" . While New Zealand requires nur sery 
owners to test plants used as propagative material for ASBVd, the particular circumstances in New 
Zealand are not comparable to those in Costa Rica . For its part, the United States conducted a risk 
analysis in 2014 for the importation of fresh avocado s into its territory, including Hawaii and Puerto 
Rico. The US authorities concluded that the risk associated with ASBVd from the importation of fresh 
avocados was low . Mexico is not aware of any other countries that have issued measures based on 
a risk an alysis related to an alleged risk arising from the likelihood of entry, establishment or spread 
of ASBVd with respect to the importation of fresh avocados for consumption.  
9. It is clear that Costa Rica has taken advantage of this procedure to justify its measures with 
evidence expressly created and submitted ex post on the imposition of the measures under dispute . 
For example, the amendment to Manual NR -ARP-PO-01_M -01 demonstr ates this situation and how 
Costa Rica is seeking to rectify the inconsistencies of its measures with the SPS Agreement within 
the framework of the procedure.  
10. Despite this improper practice by Costa Rica, Mexico considers that the SPS  Agreement is 
applicable in the present dispute in accordance with the first sentence of Article 1.1 of the SPS 
Agreement . Moreover, the measures adopted by Costa Rica are, individually and as a whole [ en 
conjunto ], phytosanitary measures in view of paragraph 1 of Annex A o f the SPS Agreement . 
Similarly, the measures adopted by Costa Rica are inconsistent with the SPS Agreement and the 
General Agreement on Tariffs and Trade 1994 (G ATT 1994) because:  
- They are not based on international standards, guidelines or recommendatio ns, 
contrary to Article 3.1 of the SPS Agreement;  
- They lack justification for deviating from the international standards, guidelines and 
recommendations without scientific justification for Costa Rica's level of 
phytosanitary protection or as a result of  a level of phytosanitary protection 
determined to be appropriate in accordance with Articles 5.1 to 5.8 of the 
SPS Agreement, which is contrary to Article 3.3 of the SPS Agreement;  
- They are not based on a risk assessment appropriate to the circumstances, contrary 
to Article  5.1 of the SPS Agreement;  WT/DS524/R/Add.1  
 
- 20 - 
  - They failed to take into consideration existing scientific evidence, relevant production 
methods and sampling and testing inspection methods, contrary to Article 5.2 of the 
SPS Agreement;  
- Costa Rica did not take into account the relevant economic factors, the costs of 
control or eradication of pests in its territory, or the cost -effectiveness of alternative 
methods, contrary to Article 5.3 of the Agreement;  
- The measures are not based on scie ntific principles and are being maintained without 
sufficient scientific evidence, which is inconsistent with Article 2.2 of the 
SPS Agreement;  
- Their application implies arbitrary or unjustifiable distinctions in Costa Rica's levels 
of protection, result ing in discrimination or restriction on international trade, contrary 
to Article 5.5 of the SPS Agreement;  
- They constitute a disguised restriction on international trade and arbitrarily and 
unjustifiably discriminate between Costa Rica and Mexico, contra ry to Article 2.3 of 
the SPS Agreement;  
- They are more trade -restrictive than required to achieve Costa Rica's appropriate 
level of protection (ALOP), given the existence of reasonably available measures, 
which is contrary to Article 5.6 of the SPS Agreem ent; 
- They are not adapted to the characteristics of the destination areas by failing to take 
into account, inter alia, the level of prevalence of pests, the existence of eradication 
or control programmes, and appropriate criteria developed by relevant in ternational 
organizations, which is contrary to Article 6.1 of the SPS Agreement;  
- They are applied in a manner that affects international trade and are not applied in 
accordance with the SPS Agreement, which is contrary to Article 1.1 of the 
SPS Agreemen t; 
- They constitute prohibitions or restrictions on the importation of avocados for 
consumption, other than customs duties, taxes or other charges, contrary to 
Article  XI:1 of the G ATT 1994; 
- They accord less favourable treatment to fresh avocados for co nsumption from 
Mexico than that accorded to avocados originating in Costa Rica, contrary to 
Article  III:4 of the G ATT 1994. 
11. Mexico therefore wishes Costa Rica to bring such measures into conformity with its obligations 
under the SPS Agreement and the G ATT 1994 of the World Trade Organization (WTO).  
II. FACTUAL BACKGROUND  
A. The product in question  
12. The avocado ( Persea americana Mill.) is a fleshy, pear -shaped fruit, light green to dark green 
on the inside and purple to black on the outside, with a rough skin, yellowish green flesh and a very 
large central seed . There are three "races " of avocado : the West Indian, Guatemalan and Mexican . 
By combining the latter two, the Hass cultivar is obtained, which is distinguished by having greater 
competitive a dvantages . However, the use of the Hass seed is not a viable technological alternative 
for use as a rootstock due to its high genetic variability and deficiencies in fruit production and 
quality (it produces weak, thin plants with straggly, poor -quality ro ots). 
 
13. An avocado seed is characterized by its recalcitrant nature . It is distinguished by its rapid loss 
of viability and its sensitivity to desiccation and cold ; it therefore has a very short shelf life after 
harvesting, even in a hydrated state . Once the pulp has been removed from an avocado seed, in 
normal humidity and temperature conditions its viability is less than five days.  WT/DS524/R/Add.1  
 
- 21 - 
  14. Due to their recalcitrant nature, avocado seeds do not tolerate long storage periods, unless 
they are subjected to spe cial preservation procedures, including pre -storage treatments, such as 
cryopreservation, as well as fungicide treatments to prevent attacks from pathogens such as 
endemic fungi and seeds from rotting or drying out . Final storage in low -temperature and 
high-humidity conditions also makes them susceptible to attack by endemic fungi or to developing 
other diseases . The storage and maintenance of avocado seed viability is generally more of a 
problem in tropical regions due to the environmental temperature and humidity conditions.  
 
15. Currently, there is no scientific study that can confirm the viability of a seed extracted from a 
Hass avocado imported for consumption under the specific humidity and temperature conditions of 
Costa Rica . There is also no scientific evidence to evaluate the viability of seeds extracted from fresh 
avocados imported for consumption in Costa Rica that are subjected to sudden temperature changes 
due to prior processes used in transporting and storing the fruit.  
 
16. Although av ocado seed germination occurs naturally, its viability will depend on factors such 
as climate, humidity, correct seed disinfection, soil conditioning and water absorption capacity . By 
this logic, an avocado seed from a fresh fruit originally imported for c onsumption and discarded, 
devoid of specific treatment to ensure its adaptation, is prone to desiccation and loss of embryo 
viability due to multiple factors . Therefore, humidity and a tropical climate cannot be considered as 
the only determining factors f or avocado seed germination . Currently, there is no scientific evidence 
that addresses the spontaneous germination of avocado seeds in virtually any location such as fields, 
farms and landfill sites within the territory of Costa Rica . Consequently, there a re also no studies 
that demonstrate or evaluate the existence of a high likelihood of the establishment and spread of 
Avocado Sunblotch Viroid disease and the ASBVd pathogen via fresh avocados for consumption in 
Costa Rican territory.  
 
B. Avocado Sunblotch Viroid disease and its causal agent, the ASBVd pathogen  
17. Avocado Sunblotch Viroid disease is caused by the ASBVd pathogen, which has the following 
variants related to viroid symptomatology : ASBVd -B (bleaching) ; ASBVd -V (variegation) ; and 
ASBVd -Sc (asymptomatic) . There is no scientific evidence to confirm a causal link between variants 
and specific symptoms.  
 
18. ASBVd can occur on avocado trees asymptomatically or symptomatically . Symptoms of the 
disease include the appearance of thin s treaks on young branches and stems, bleaching and 
deformation of leaves, with fruits often developing white, yellow or pinkish sunken spots or streaks, 
and are usually small and deformed . Symptoms are unevenly distributed on the infected tree . A tree 
with the disease may develop typical symptoms as a result of stress conditions such as radical 
pruning of tree foliage or external events such as fire . In practice, producers, when detecting lower 
yields from trees or confirming the presence of the disease, rem ove infected trees.  
 
19. Symptoms of the disease were first observed in 1914, in the US state of California, and arose 
following the placing on the market of propagative material from that country . It is thought that 
from 1920 to 1950 this disease spread to third countries such as Australia and Palestine . In Mexico, 
symptoms of the disease were recorded for the first time in 1948 ; however, its presence was not 
confirmed until 2009, in the article First Report of Avocado Sunblotch Viroid in Avocado f rom 
Michoacán , Mexico , a publication that refers to the detection of the disease in two commercial 
plantations located in Tingambato, Michoacán . Given that it is not considered a pest of economic 
importance in Mexico, neither the authorities nor the domest ic industry have allocated resources to 
research into the disease . Thus, no evaluation of the prevalence and geographical distribution of the 
disease in Mexico has been carried out.  
 
20. There is currently no scientific evidence to confirm the transmission  of Avocado Sunblotch 
Viroid disease arising from imports of fresh avocados for consumption, nor are there any scientific 
studies evaluating the economic relevance of the pest on avocado production, which confirms the 
insignificance of the economic impact on the industry.  
 
21. Transmission of the disease is closely linked to the trade in propagative material . In particular, 
transmission pathways are : the use of pruning and cutting tools during harvesting ; vegetative 
propagation through the use of infected p ropagative material ; through pollen ; and through root 
intertwining . The likelihood of disease transmission by natural means, such as spontaneous 
germination, is low.  WT/DS524/R/Add.1  
 
- 22 - 
  C. Relevant international standards, guidelines and recommendations  
22. The SPS Agreement defines international standards on plant protection as those developed by 
the IPPC . Mexico considers I SPM 1 (Phytosanitary principles for the protection of plants and the 
application of phytosanitary measures in international trade ), ISPM 2 (Framework for pest risk 
analysis ), ISPM 5 (Glossary of phytosanitary terms ), ISPM  6 (Guidelines for surveillance ), ISPM 8 
(Determination of pest status in an area ), ISPM 11 (Pest risk analysis for quarantine pests ) and 
ISPM 32 (Categorization of commoditie s according to their pest risk ) as relevant to this dispute.  
 
D. Presence of the ASBVd pathogen and Avocado Sunblotch Viroid disease in 
Costa  Rica 
23. Costa Rica's determination of absence of disease is questionable for several reasons . Firstly, 
its survei llance system was not implemented in accordance with I SPM 6, in that it contains 
omissions, errors and defects that call into question the objectivity, consistency and rigour of the 
results of the sampling conducted from 2014 to date . Some of the defects i n the surveillance system 
include : inaccurate, incomplete and disorderly processing of specific surveillance records, 
inconsistencies in laboratory reports, lack of tests to allow traceability of samples, lack of scientific 
rigour in carrying out diagnosti c tests.  
 
24. Second, even after the imposition of measures in 2015, Costa Rica continued to import fresh 
fruit from countries where ASBVd is present (namely Peru and Guatemala), despite the fact that the 
viroid has been detected in several shipments from these countries . This situation suggests that 
Costa Rica has openly tolerated the alleged high risk involved in the entry of some shipments that 
–following its own border inspection methodology – were not analysed and that, moreover, have 
been distributed throughout Costa Rican territory.  
 
25. Third, throughout its submissions, Mexico submitted evidence giving reason to presume that 
ASBVd is present in Costa Rican territory . This evidence consists of affidavits from traders and 
importers in Costa Rica ; an official letter from the University of Costa Rica 's Centro de Investigación 
en Biología Molecular  (molecular biology research centre) showing positive results for ASBVd ; 
samples taken in 2014 and from 2015 to 2016 in Costa Rica ; and evidence presupposing the 
importation of propagative material likely to be infected with ASBVd from the US state of California  
to Costa Rica through the Centro Agrícola Cantonal Tarrazú (Tarrazú district agricultural centre).  
 
E. Prior measures relating  to the measures at issue adopted by Costa Rica  
26. Prior to the implementation of the disputed measures, Costa Rica implemented measures for 
countries with ASBVd, including Mexico . These measures included:  
 
˗ Resolution DSFE -03-2015 (Emergency Measure) . Issued on 2 2 April 2015 by the 
SFE. It ordered the temporary suspension of the issuance of phytosanitary import 
certificates for fresh avocados for consumption from Australia, Spain, Ghana, 
Guatemala, Israel, Mexico, South Africa and Venezuela . The US state of Florida was 
subsequently included . This measure was withdrawn on 1 6 October  2017. 
˗ Resolution DSFE -11-2015 (First Mexico -specific measure) . Issued on 1 0 July 2015. 
This measure established the requirement to certify : (i) that the product came from 
plants grown in nurseries certified by the national plant protection organization of 
the country of origin as free of ASBVd, and previously recognized by the SFE of Costa 
Rica; and (ii) that the product came from a place of pro duction free of ASBVd, and 
previously recognized by the SFE of Costa Rica . The amendment to this measure was 
notified on 1 6 October  2017, leading to the specific measures at issue.  
˗ Report ARP -003-2015 "Pest risk analysis initiated following the review of a  policy on 
the importation of fresh avocados ( Persea Americana Mill.) from Mexico for 
consumption ". Written in 2015 . It proposed the implementation of measures in 
addition to the phytosanitary certificate, such as : (i) verification of origin based on 
the respective technical regulation ; (ii) verification that the product comes from a 
place of production free of ASBVd, and previously recognized through the procedures 
described in I SPM 29 by the SFE Costa Rica ; and (iii) the additional declaration in 
the offi cial phytosanitary certificate that the product comes from a place of 
production free of ASBVd (place must be named).  WT/DS524/R/Add.1  
 
- 23 - 
  III. SPECIFIC MEASURES AT ISSUE  
27. The specific measures at issue by which Costa Rica restricts, individually and as a whole, the 
importa tion of fresh avocados for consumption from Mexico are:  
 
• Final specific resolution for Mexico (Resolution DSFE -003-2018) and final general 
resolution (Resolution DSFE -002-2018) . Issued on 2 9 January  2018, the Resolutions 
establish import requirements specifying that:  
(i) the consignment is accompanied by a phytosanitary certificate stating that 
the avocados are free of Avocado Sunblotch Viroid ; or 
(ii) the consignment is accompanied by a phytosanitary certificate stating that 
the avocados come from a place of production free of ASBVd (previously 
recognized by the SFE) ; or 
(iii) comply with a bilaterally established systems approach programme.  
 
• Reports ARP -002-2017 and ARP -006-2016 . Prepared by the SFE 's Pest Risk Analysis 
Unit in July 2017, they provide the basis for justifying the Resolutions . Although later in 
2019 corrigenda were issued on the analyses, these were only to provide clarifications and 
corrections of inaccuracies . ARP-002-2017 and ARP -006-2016 are similar in their 
conclusions, the difference being that the latter includes the risk analysis for the importation 
of avocado plants for planting.  
• Manual NR -ARP-PO-01_M -01: The Manual was approved by the Executive Director of the 
SFE on 1 1 May 2016, and is binding on the Ri sk Analysis Unit when it is conducting 
qualitative pest analyses for an entry pathway . Its purpose is to guide the analyst through 
the scientific evaluation available to determine whether an organism is a regulated pest, 
assess its risk and identify risk m anagement options, in compliance with the Costa  Rican 
Phytosanitary Protection Law and international regulations . The 2016 Manual should be 
analysed even if it is not in force, as it was the instrument used for the preparation of 
ARP-002-2017 and ARP -006-2016, and therefore it must be part of the findings of this Panel . 
The new Costa Rican Manual adopted in 2018 serves only to put into context and understand 
the Costa Rican authorities ' actions in this matter.  
IV. ANALYSIS OF THE MEASURES AT ISSUE INDIVIDUA LLY AND AS A WHOLE  
28. The specific measures at issue are those by which Costa Rica restricts, individually and as a 
whole, the importation of fresh avocados for consumption from Mexico . The Resolutions, the PRAs 
and the Manual are administrative acts under the responsibility of the SFE Pest Risk Analysis Unit, 
which in turn belongs to the MAG . They therefore constitute "measures" for the purposes of a dispute 
settlement procedure.  
 
A. Evaluation of measures as a whole  
29. The measures must be evaluated as a whole because of their design and functionality . This is 
because : (i) many of the elements of the measures are interrelated and can be mutually justified, 
resulting in a measure that is independent of the measures analys ed individually ; and (ii)  because 
the possible inconsistency of any of the measures individually with the provisions of the 
SPS Agreement would necessarily affect the other measures as a whole . Thus, if the Manual is found 
to be inconsistent with the SPS A greement, this could have an impact on the PRAs . Similarly, if it is 
found that the PRAs were not subject to the requirement to carry out a risk assessment appropriate 
to the circumstances, this would necessarily affect the Resolutions that are based on th em. In other 
words, the five measures operate as a whole in a systemic way so that it is a separate measure from 
the measures analysed individually.  
 
30. In particular, the Resolutions establish the phytosanitary requirements to be met by exports 
of fresh avocados for consumption, the PRAs establish the alleged reasoning behind recommending 
the adopted requirements, while the Manual constitutes the guide used by the risk analyst to carry WT/DS524/R/Add.1  
 
- 24 - 
  out the PRAs . In this respect, the Resolutions make specific reference  to the PRAs, insofar as they 
cite the Manual as the source for their development . In other words, individual instruments cannot 
be understood in isolation or separately given that they are closely linked.  
 
31. In this regard, the requirements contained in  Resolutions DSFE -002-2018 and 
DSFE -003-2018, reports ARP -006-2016 and ARP -002-2017, as well as their methodology contained 
in Manual NR -ARP-PO-01_M -01,, are linked and together constitute the basis on which Costa  Rica 
de facto  prohibits or restricts the importation of fresh avocados for consumption from Mexico.  
 
32. In addition, the design and structure of the measures operate in such a way that, as a whole, 
they affect exports to Costa Rica of avocados for consumption from Mex ico and unjustifiably accord 
treatment more favourable to its domestic avocado industry in the face of foreign competition . In 
particular, Costa Rica's measures have an impact on trade with Mexico.  
 
B. Evaluation of measures individually  
33. Mexico request s the Panel, in its analysis of the provisions and obligations subject to the 
complaint, to rule on each measure individually . In applying the SPS Agreement with respect to each 
of the measures individually, the Panel could identify the specific elements i n each of the measures 
that lead to a violation of the SPS Agreement, which make them independent from one another and 
from the measure as a whole . This is because the specific violation may vary depending on the 
characteristics and form of each measure . In other words, the same element, such as uncertainty 
and diversion from intended use, may have a different scope in the Manual, the PRA or the 
Resolutions.  
 
34. Failure to proceed in this way would run the risk that the specific violations in each of these  
measures would remain if they were to comply with the Dispute Settlement Body (DSB) 's 
recommendations.  
 
V. LEGAL ARGUMENTS  
35. In designing, implementing and maintaining the challenged measures, Costa Rica has acted 
inconsistently with Articles 1.1, 2.2 a nd 2.3, 3.1 and 3.3, 5.1, 5.2, 5.3, 5.5 and 5.6, and 6.1 of the 
SPS Agreement, as well as Article XI:1 of the G ATT 1994. M oreover, Costa Rica's measures are not 
justified under Article XX(b) of the G ATT 1994. 
 
A. Costa Rica's measures are phytosanitary measures under the SPS Agreement, 
in accordance with Annex A(1)(a) and Article 1.1 of the SPS Agreement  
36. The measures in dispute are, individually and as a whole, phytosanitary measures under 
Article 1.1 of the SPS Agreement because : (i) they are phytosanitary measures as defined in 
Annex  A(1)(a) of the SPS Agreement ; and (ii) individually and as a whole they directly and indirectly 
affect international trade.  
 
37. With respect to the first element, the five measures, individually and as a whole, are legal 
acts designed, implemented and maintained with the aim of protecting avocado ( Persea americana 
Mill.) trees in Costa Rica from risks arising from the likely entry, establishment or spread of ASBVd 
in its territory . They are also legal acts that are clearly and objectively related to the objective set 
out in Annex A(1)(a) of the SPS Agreement, thus complying with the second part of Annex  A(1) of 
the SPS Agreement.  
 
38. They also satisfy the second condition of Article 1 .1 in that the five measures identified by 
Mexico, when operating as a whole, have had a real and immediate impact on trade since 2015, 
given that all exports of fresh avocados from Mexico were stopped.  
 
39. With regard to the analysis of measures individu ally, the measures affect international trade, 
as the Resolutions had the effect of stopping Mexico from exporting fresh avocados for consumption 
to Costa Rica . The PRAs recommended the implementation of certain requirements and concluded 
that, as the meas ures were considered by the authority at the time risk management was being 
defined, they hindered international trade and, in the case of Mexico, they de facto prohibited the 
importation of fresh avocados for consumption . Lastly, the Manual resulted in th e development of 
an unsuitable PRA that led to the implementation of requirements that affected international trade WT/DS524/R/Add.1  
 
- 25 - 
  of fresh avocados for consumption between Mexico and Costa Rica . In other words, the impact of 
the application of the Manual extends to the SFE Resolutions and thus they have an indirect effect 
on international trade.  
 
40. As for the G ATT 1994, it is applicable to Resolutions DSFE -002-2018 and D SFE 003-2018, in 
particular Articles XI:1 and III:4.  
 
B. The measures adopted by Costa Rica are inconsistent with Article 3.1 of the 
SPS Agreement  
41. Pursuant to Article 3.1, Costa Rica was required to base its measures on international 
standards . The Appellate Body has noted that the relevant international standards referred to in 
Article 3 are tho se established or developed under the auspices of the international organizations 
referred to in Annex A(3) of the SPS Agreement . International standards developed under the 
auspices of the IPPC are identified as relevant to plant protection . In addition, the DSB noted that 
Members should base their measures on relevant international standards, guidelines or 
recommendations.  
 
42. In this regard, ISPMs 1, 2, 5, 6, 8, 11 and 32 are relevant for the purposes of this case, as 
they are standards issued by the IP PC, and relate to issues directly applicable to this case, as they 
were relevant to the implementation of the measures at issue in this dispute.  
 
43. The SFE itself has made it clear how relevant the ISPMs are by : (i) explicitly stating in the 
PRAs that th e evaluation was conducted "in a way that was harmonized" with I SPM 11; (ii) referring 
in its Manual that it was "in accordance" with ISPMs 1, 2, 11 and 21 ; and (iii) developing the specific 
surveys to determine the ASBVd situation in Costa Rica, "in accor dance" with ISPMs 6 and 8.  
 
44. Mexico demonstrated that, by conducting a joint analysis of the measures and ISPMs, the 
Panel will be able to ascertain that there are contradictions that represent a fundamental departure 
from the relevant ISPMs, namely:  
 
˗ Resolutions DSFE -002-2018 and DSFE -003-2018 are inconsistent with I SPM 1 by departing 
from the principles of necessity, managed risk, minimal impact, non -discrimination and 
technical justification;  
˗ Reports ARP -006-2016 and ARP -002-2017, with respect to I SPM 2, do not correctly define 
the PRA area in terms of the endangered area, and do not clearly identify the initiation point 
of the risk management analysis . With respect to I SPM 11, given that they presume zero 
risk, they fail to identify ways to react to t he risk, fail to assess the efficacy of these actions, 
fail to identify the most appropriate options, and fail to consider the principles of minimal 
impact and equivalence . Lastly, the PRAs are not designed around the intended use of the 
product, which is consumption;  
˗ Costa Rica's declaration on the absence of ASBVd in its territory is inconsistent with ISPMs 
6 and 8 . In this regard, phytosanitary status forms a key part of Costa Rica's PRAs as it is 
the premise on which its risk assessments are based . Therefore, its measures were not based 
on a PRA appropriate to the circumstances because its determination of absence is based on 
serious errors and omissions, inter alia : (i) the documents were not approved by the head 
of the SFE ; (ii) there is no evidence th at these documents predate the specific surveys ; 
(iii) the selection of farms for sampling is based on a questionable statistical formula ; (iv) 
the sampling does not cover the whole o f Costa Rican territory ; and (v) the SFE officials did 
not sample asympto matic trees during their visits;  
˗ Manual NR -ARP-PO-01_M -01 contradicts the specifications of ISPMs 2, 11 and 32 by omitting 
some relevant sections such as criteria for pest categorization, criteria to be taken into 
account for the risk assessment of pests t hat have been identified and categorized as 
quarantine pests, and the different pathways that commodities may represent according to 
their pest risk . Had these been considered, SFE officials would have reached a resolution 
that did not conclude there was a  high risk related to the likelihood of entry, establishment 
and spread of ASBVd via fresh avocados for consumption.  
45. In conclusion, Costa Rica did not base its measures on relevant international standards, 
namely ISPMs 1, 2, 4, 6, 8, 11 and 32.  
 WT/DS524/R/Add.1  
 
- 26 - 
  C. The measures adopted by Costa Rica are inconsistent with Article 3.3 of the 
SPS Agreement  
46. In establishing its measures a t a higher level of protection than that established by the 
relevant ISPMs, Costa Rica did not fulfil any of the following conditions : (i) that there should be a 
scientific justification ; and (ii) that it was as a consequence of the level of phytosanitary protection 
in accordance with the relevant provisions of Articles 5.1 to 5.8 of the SPS Agreement . Costa Rica's 
actions were therefore inconsistent with Article 3.3 of the SPS Agreement.  
 
47. In this connection, it should be noted that the design of an international standard, particularly 
its specificity regarding a pest, is not a circumstance that prevents a Member from achieving a 
specific ALOP . In addition, the text of the SPS Agreement does  not mention that an international 
standard must establish a specific ALOP as a parameter of the principle of harmonization, nor as a 
sine qua non-requirement for the application of Article 3 of the SPS Agreement.  
 
48. Regarding the first element, it shoul d be noted that Costa Rica did not provide a scientific 
justification for why the relevant ISPMs lacked efficacy in achieving its ALOP . In its PRAs, Costa  Rica 
merely stated that in cases where the standards failed to achieve its appropriate level of prote ction 
or where the standards were non -existent, it reserved its right to exercise its right to apply 
appropriate measures, justified on scientific grounds and supported by a PRA . While this was stated 
in its PRAs, conversely Costa Rica failed to justify wh y, if it applied the relevant ISPMs, the 
appropriate level of protection it would achieve would be lower than the level that should be achieved 
based on its ALOP, which, in turn, it also failed to justify with scientific information or in its own PRA.  
 
49. While the ALOP established by Costa Rica in its PRAs is a "maximum level of phytosanitary 
protection", it is questionable that throughout the dispute Costa Rica established multiple 
clarifications of its ALOP . This situation makes the application of this provision difficult, particularly 
the definition of the ALOP.  
 
50. Regarding the second element, there is no scientific justification or information in the PRAs to 
enable Costa Rica to determine a better or higher level of protection than it would obtain b y basing 
its measures on the relevant ISPMs . In particular, as far as the scientific evidence is concerned, it is 
not sufficient to justify a higher ALOP than would have been achieved if the relevant ISPMs had been 
taken into account.  
 
51. In fact, most of  Costa Rica 's central reasoning for justifying the existence of a high risk, which 
it uses to justify its maximum appropriate level of protection, are based on a socio -economic study 
– CONSULSAN TOS 2010. T his report lacks methodological rigour and scientif ic proof, in addition to 
the fact that the conclusions drawn by Costa Rica in its PRAs are therefore neither objective nor 
consistent and are not sufficiently supported by scientific evidence regarding the entry pathway of 
fresh avocados imported for consu mption.  
 
52. In conclusion, Costa Rica did not base its measures on the relevant ISPMs, nor did it justify 
why those ISPMs lacked efficacy in achieving its ALOP . Indeed, Costa Rica failed to provide a scientific 
justification, or to demonstrate that the determination of its "maximum" ALOP is the result of an 
analysis conducted under Articles 5.1 to 5.8 of the SPS Agreement, which implies that its measures 
are incons istent with Articles 3.1 and 3.3 of the SPS Agreement.  
 
D. The measures adopted by Costa Rica are inconsistent with Article 5.1 of the 
SPS Agreement  
53. Analysing the consistency of a phytosanitary measure with Article 5.1 of the SPS  Agreement 
involves eva luating : (i) whether the Member adopting the measure conducted a risk assessment in 
accordance with Annex A(4) of the SPS Agreement ; (ii) whether the assessment is "appropriate to 
the circumstances "; (iii) whether the risk assessment "took into account" ri sk assessment techniques 
developed by relevant international organizations ; and (iv) whether the Member ensured that the 
phytosanitary measures adopted "are based on" the risk assessment.  WT/DS524/R/Add.1  
 
- 27 - 
  a. Costa Rica's measures are not based on a risk assessment as defin ed 
in Annex A(4) of the SPS Agreement  
54. The Appellate Body, in Australia – Salmon , noted three elements in considering whether a 
Member had developed an assessment within the meaning of Article 5.1 of the SPS Agreement.  
 
i. Identify the pests, whose entry, establishment or spread Costa Rica wants to 
prevent in its territory, as well as the associated potential economic and 
biological consequences  
55. Costa Rica did not identify or differentiate between the nature, characteristics, effects, 
symptoms an d risks of Avocado Sunblotch Viroid disease and those of the different variants of the 
viroid that cause the disease, ASBVd . Furthermore, Costa Rica did not provide justification for the 
assumption that the biological and economic consequences it listed in  its PRAs might have resulted 
from the entry of ASBVd into its territory.  
 
ii. Evaluate the likelihood of entry, establishment or spread of Avocado Sunblotch 
Viroid disease and the ASBVd viroid, as well as the associated potential 
biological and economic conse quences  
• Costa Rica did not evaluate the likelihood of entry of ASBVd  
56. Costa Rica did not submit scientific evidence to demonstrate the fundamental premise 
underlying its PRAs, namely the absence of ASBVd in its territory . In fact, there is no reasoned o r 
systematic analysis in its PRAs, let alone evidence to demonstrate that the pathogen and the disease 
it causes were absent from its territory.  
 
57. Costa Rica notes that it identified two entry pathways (avocados for consumption and plants 
for planting) in its PRAs, which remains merely an assertion because it is not supported by scientific 
evidence . In other words, the PRAs do not meet the specificity criteria set by the Appellate Body in 
Japan – Apples . In fact, Costa Rica claimed to justify a risk asso ciated with the pathway of fresh fruit 
for consumption in general information relating to ASBVd and through the pathway of importation 
of propagative material, and not specific scientific evidence referring to the pathway under 
assessment . In any event, as  Mexico has argued, Costa Rica was required to obtain the additional 
information needed to develop a more objective and consistent risk assessment.  
 
58. In the absence of specific scientific evidence, Costa Rica was required to follow ISPMs 6 and 
8, which state that pest status is determined using information from individual records, pest records 
from surveys and historical records of absence ; in other words, findings through general surveillance, 
as well as scientific publications and databases . However, i t did not adhere to these standards.  
 
59. Mexico demonstrated that the literature cited in the PRAs by Costa Rica was taken out of 
context or misinterpreted by its phytosanitary authority . In this regard, Costa Rica failed to point 
out specifically what ev idence it had used as a basis for justifying the risk associated with the 
pathway of fresh avocados imported for consumption.  
 
60. Mexico has demonstrated that Costa Rica based its assessment on general observations about 
the possibility, not the likelihoo d, of entry of the ASBVd pathogen, while virtually ignoring Avocado 
Sunblotch Viroid disease . In addition, Costa Rica:  
 
˗ Failed to identify all relevant pathways for entry of the ASBVd pathogen within its territory, 
and made errors in attempting to assess t he frequency of pathogen movement with respect 
to the pathway of importation of fresh avocados – whether symptomatic or asymptomatic;  
˗ Did not associate the disease with its prevalence in the place of origin;  
˗ Did not assess in its PRAs, either qualitatively  or quantitatively, the risk related to the 
likelihood of importation of asymptomatic avocados within the total volume and frequency 
of movements of fresh avocados from Mexico;  WT/DS524/R/Add.1  
 
- 28 - 
  ˗ Did not take into consideration certain circumstances that contribute to the su rvival of 
ASBVd, such as temperature and the recalcitrant nature of the seed and, furthermore, did 
not evaluate, based on scientific evidence, recalcitrant avocado seed viability for 
germination after transportation and storage;  
˗ Did not evaluate factors su ch as seasonality, as the higher the temperature, the greater 
the chance of symptom outbreak and hence the lower the chance of asymptomatic 
avocados being exported;  
˗ Did not consider estimating the likelihood of entry with respect to the origin of the 
avocados, as the prevalence of the viroid has not been confirmed in states such as Jalisco;  
˗ Did not correctly evaluate the likelihood of transfer to a suitable host, under natural 
conditions such as those surrounding the alleged diversion from intended use , through 
spontaneous germination;  
˗ Did not consider other scientific evidence that in Mexico's view should have been used 
when evaluating the likelihood of entry of ASBVd viroid into the territory of Costa Rica;  
˗ Did not identify the prevalence of ASBVd viroid in Mexico and the percentage of avocados 
that might be asymptomatic in plantations in Mexico;  
˗ Did not identify the approximate number of cases where the ASBVd viroid might be present 
in fresh avocados for con sumption packaged and prepared for export, originating from 
Michoacán, Mexico ; and 
˗ Did not identify, from the approximate number of avocados exported from Mexico, which 
of them could be asymptomatic, to rule out an approximate percentage of infected fresh 
avocados that were damaged between transportation and arrival at the point of sale on the 
shelf, meaning that the avocado seed was still viable for germination.  
61. In addition, it would appear that Costa Rica, in reviewing the risk assessment and noting i ts 
finding that there was a "high" likelihood of entry, made an assumption that 100 % of fresh avocados 
for consumption imported from Mexico are carriers of the asymptomatic variant of ASBVd . In fact, 
Mexico sampled packs of produce destined for export to d etermine the prevalence of avocados 
infected with ASBVd, which turned out to be zero, as 100 % of the samples tested negative for 
ASBVd . In other words, evidence was presented disproving the alleged high likelihood that avocados 
exported by Mexico carry ASB Vd. It is therefore clear that Costa Rica overstated the results of the 
risk assessment.  
 
• Costa Rica did not dispute the fact that the practice of diversion from 
intended use and spontaneous germination of discarded avocado waste was 
a risk that had an imp act on the likelihood of the establishment of the 
ASBVd viroid through fresh avocados for consumption  
62. In Costa Rica 's PRAs, the risk associated with the likelihood of the disease establishing itself 
in Costa Rican territory arising from diversion from intended use through cultural practices and the 
spontaneous germination of discarded avocado waste is not supported by scientific evidence . This is 
also demonstrated using the mathematical formula that Mexico presented in its second written 
submission show ing that, if the likelihood of introduction through a pathway is low, as it is in the 
present case, the risk of establishment is therefore negligible.  
 
63. Costa Rica draws from merely theoretical constructions and possibilities in evaluating the 
likelihoo d of ASBVd establishment . Indeed, the evidence provided in this proceeding shows that 
there is no scientific evidence or practical experience demonstrating that discarded avocado skins 
are a source of ASBVd transmission, let alone that throwing the discard ed seeds in landfills sites or 
fields in Costa Rica could result in a "spontaneous germination" of the seeds in all cases.  
 WT/DS524/R/Add.1  
 
- 29 - 
  64. Costa Rica also made the assumption – without a systematic calculation – that all seeds would 
be used as propagative material, t hus considering them a high risk . However, the source referred 
to in its PRAs (CONSULSAN TOS 2010 and CONSULSAN TOS 2017) indicates that there is no statistical 
data on the quantity of imported avocados whose seed is used as propagative material.  
 
65. Costa Rica also made the assumption that all seeds would be used as rootstock or that all 
discarded avocado seeds would germinate spontaneously . It did so without taking into account 
specific factors or conditions required for a seed from a freshly consumed avoc ado to germinate, 
such as : the recalcitrant nature of the seed ; reproductive strategy and germination viability ; 
susceptibility to attack by pathogens and factors conducive to seed rot ; and the fact that this practice 
is not commercially viable.  
 
66. In this regard, in order to calculate the likelihood of establishment, Costa Rica had to estimate 
qualitatively or quantitatively:  
 
˗ The number of cases where the seed was removed from the fresh avocado for consumption 
and the number of occasions on which it was  used for planting (diversion from intended use) 
or dumped in fields, backyards, gardens, farms, waste disposal centres, rubbish dumps and 
landfill sites;  
˗ Of the percentage of likely cases where the avocado seed was removed for planting 
(diversion from intended use) or dumped in a landfill site, rubbish dump, farm or field, only 
the approximate number of cases where the seed had not lost its viability due to factors 
such as the recalcitrant nature of the seed, pathogens (such as fungi and  bacteria), 
temperature, humidity and soil conditions should have been considered;  
˗ Of the percentage of likely cases where the viroid survived, the percentage of seeds that 
might have entered and established within Costa Rican territory, in other words tho se that 
germinated, should have been considered;  
˗ Of the percentage of seeds that germinated, only cases where the seed that germinated 
survived factors such as root rot and developed into a seedling and subsequently into a 
viable tree should have been cons idered as being likely;  
˗ Of this percentage of likelihood, only cases where the tree spread within Costa  Rican territory 
and then transmitted ASBVd by natural means should also have been considered.  
67. It should be noted that the evidence shows that the ma in pathway for the spread of the 
pathogen is through propagative material . Therefore, unless Costa Rica analyses the frequency of 
diversion from intended use, or the survival of the seed when so used, it cannot claim that the 
importation of fresh avocados is the main pathway for the spread of ASBVd.  
 
• Costa Rica did not evaluate th e likelihood of spread of ASBVd  
68. As for the likelihood of spread of a plant infected with ASBVd, the ability of the pest to spread 
from the pathway – a seed obtained from an asymptomatic avocado imported for consumption – to 
the receiving environment mu st first be considered . Mexico has noted that a pathway may carry a 
pest, but that the pest may not necessarily have the ability to transfer itself into the environment 
and thus spread.  
 
69. In analysing the risk of spread arising from cultural practices o f diversion from intended use 
of the seed obtained from avocados imported for consumption, Costa Rica did not take into account 
the following considerations:  
 
˗ Mexico does not export propagative material to Costa Rica, so the likelihood of transmission 
via ASBVd -positive propagative material such as infected shoots, seedlings and stems is zero 
(this is the main ASBVd method of transmission);  
˗ Given that the likelihood of entry and establishment of the viroid is negligible, the likelihood 
of spread is even low er; and WT/DS524/R/Add.1  
 
- 30 - 
  ˗ In reviewing the PRAs, it does not appear that Costa Rica has supported with scientific 
evidence the practice of grafting Hass onto Hass, which is neither technically nor 
commercially viable.  
70. Mexico maintains that the Hass avocado seed is not a  technically viable alternative for use as 
a rootstock in commercial plantations, given that the fruit obtained by this means does not retain 
the characteristics of the Hass crop . The main reason is that the seed has a high genetic variability, 
which makes  it difficult to predict potential production and quality of the fruit . In Mexico, a Hass 
avocado seed used as a rootstock often produces weak, thin seedlings with poor -quality, straggly 
roots.  
 
71. Regarding the risk from spontaneous germination of waste from avocados, Mexico has 
demonstrated that no scientific evidence considered by Costa Rica in its risk assessment confirms 
the risk that may result from the spread of the viroid through spontaneously germinated seeds in 
landfill sites, farms or backyards.  
 
72. Mexico demonstrated that the likelihood of germination of an avocado seed discarded in landfill 
sites is virtually zero due to the recalcitrant nature of the seed and the likelihood of the seed rotting 
or becoming infected by the soil conditions them selves.  
 
• Costa Rica did not to evaluate the potential economic and biological 
consequences of the entry, establishment and spread of ASBVd  
 
73. Mexico demonstrated that Costa Rica did not properly analyse this requirement, as it merely 
transcribed the risk factors presented in its Manual . Similarly, in its PRAs, Costa Rica concludes that 
there is a predominantly "high risk", based on the following elements:  
 
˗ Loss of crops, production and quality;  
˗ Impact on access to operating markets;  
˗ Changes in costs for producers or in demand for inputs, including costs of control;  
˗ Changes in internal or external consumer demand for a product as a result of variations in 
quality;  
˗ Viability and cost of eradication or containment.  
74. However, these elements are unrepresentative samples, do not relate to the facts, do not 
mention the fact that ASBVd is not considered a quarantine pest of economic concern to major 
producers, or that the likelihood of export of infected fresh avocados is minimal, or that eradication 
costs are minimal compared to other pests, as mentioned above by Mexico and experts.  
 
75. Thus, from real -life experience, it can be demonstrated that ASBVd does not have serious 
economic consequences in terms of loss of crops,  production and quality of avocado fruit . From 
Mexico's viewpoint, it is a question of quality, safety and traceability throughout the chain involved 
in the trade in fresh avocados, which together weaken the real potential impact of this viroid . That 
said, Mexico does not deny the fact that a tree carrying the viroid may be affected in terms of its 
yield or the quality of its fruit . However, Mexico rejects the claim that fresh avocados imported for 
consumption  from Mexico constitute a high -risk pathway just ifying a de facto ban such as that 
imposed by Costa Rica.  
 
76. Although scientific literature exists that makes reference to the potential losses related to 
ASBVd, these conclusions cannot be extrapolated without further analysis in the way that Costa Rica  
did. Costa Rica merely presents scientific evidence from experts such as Carabez et al. and Vallejo 
López et al. without taking into account that these studies must be considered on the basis of the 
specific characteristics of the territory to which the r esults are to be extrapolated . In light of the 
above, it is clear that Costa Rica misrepresented the scientific evidence regarding the potential 
economic consequences of the entry of the viroid into its territory.  
 WT/DS524/R/Add.1  
 
- 31 - 
  77. With regard to the biological consequ ences, Costa Rica claims that there is a negative impact 
on "the germplasm of the native avocado and a detriment to biodiversity" . However, Costa  Rica did 
not substantiate these claims with scientific evidence to link such biological consequences to the 
importation of fresh avocados for consumption from Mexico.  
 
iii. Costa Rica did not evaluate the likelihood of entry, establishment or spread of 
ASBVd according to the phytosanitary measures which might be applied  
78. It is not possible to see in the PRAs whether  the SFE has carried out an evaluation of 
alternative measures that could be applied . Mexico identified four measures (three of them 
alternatives) that could be applied and that were not evaluated by Costa Rica when it conducted its 
risk assessment . In add ition, it cannot be concluded that Costa Rica has evaluated any other possible 
alternatives other than those reflected in Resolutions DSFE -03-2018 and DSFE -002-2018. It can 
therefore be concluded that these are ex post facto measures, designed and implemen ted for the 
sole purpose of affecting the import trade of fresh avocados for consumption from Mexico.  
 
b. Costa Rica's SPS measures are not based on a risk assessment 
"appropriate to the circumstances"  
79. The term "appropriate to the circumstances" refers to the manner in which a risk assessment 
is to be carried out . This expression gives Members some flexibility to take into account, inter alia , 
specific methodological difficulties, as well as specific cir cumstances relating to the origin and 
substance of the risk, as recognized by the Appellate Body . In this regard, Mexico considers that 
Costa Rica failed to take into consideration certain circumstances in drawing up its PRAs, namely:  
 
˗ The existence of evi dence inferring that ASBVd and Avocado Sunblotch Viroid disease are 
present in Costa Rica . This information makes reference to the lack of an I SPM 6- and 
8-compliant declaration of absence of the viroid . Indeed, it was demonstrated that 
Costa  Rica's survei llance system is flawed and deficient, starting with its sampling 
procedures, which do not make it possible to ensure that Costa Rica is actually free of the 
viroid;  
˗ The climatic conditions of the Santos region are not a circumstance that justifies an incr eased 
likelihood of ASBVd transmission;  
˗ The recalcitrant nature of the seed when evaluating each of the steps that had to be followed 
to evaluate the likelihood of entry, establishment and spread of ASBVd via fresh avocados 
for consumption from Mexico;  
˗ The Trade in fresh avocados for consumption for more than 20 years between Mexico and 
Costa Rica, without any reported cases of Avocado Sunblotch Viroid disease or ASBVd;  
˗ The Trade to date between Costa Rica and other countries with the presence of Avocado 
Sunblotch Viroid disease or the ASBVd pathogen;  
˗ The fact that Mexico is the world's leading producer and exporter of fresh avocados for 
consumption, and that the presence of ASBVd in its territory has not affected this market 
position.  
80. Costa Rica did not  develop its risk assessments taking into consideration the specific 
circumstances of the pathway of fresh avocados imported for consumption, or the circumstances 
relating to the origin and destination of the product in dispute . Costa Rica's measures are therefore 
inconsistent with Article 5.1 of the SPS Agreement.  
 
c. Costa Rica did not take into account the risk assessment techniques 
contained in the ISPMs  
81. ISPM 2 (Framework for pest risk analysis ) and I SPM 11 (Pest risk analysis for quar antine 
pests ) are the risk assessment techniques referred to in Article 5.1 of the SPS Agreement, as they 
are specific standards on risk assessment techniques that have been developed by the IPPC.  
 WT/DS524/R/Add.1  
 
- 32 - 
  82. In addition, I SPM 6 (Guidelines for surveillance ) is a pplicable, as the determination of 
Costa  Rica's absence from disease was considered as a core premise for the development of the 
PRAs.  
 
83. Mexico argues that relevant sections of ISPMs 2 and 11 were omitted which, if they had been 
taken into consideration , would have led to conclusions favouring international trade . Some of the 
omissions referred to are as follows:  
 
˗ With regard to I SPM 2, the PRA area in terms of the area at risk is not correctly defined, and 
the initiation point of the risk management ana lysis is not clearly identified;  
˗ With regard to I SPM 11, given that zero risk is assumed, ways to respond to the risk are not 
identified, the effectiveness of the responses are not evaluated, the most appropriate options 
are not identified, and the principles of minimal impact and equivalence are not taken into 
account . Lastly, the PRAs are not designed around the intended use of the product, which is 
consumption.  
d. Costa Rican SPS measures are not based on PRAs  
84. According to the Appellate Body, a Panel must analyse whether : (i) a determination that the 
scientific basis of the risk assessment comes from a respected and qualified source and can therefore 
be considered a "legitimate scientific opinion" under the standards of the scie ntific community 
concerned and can accordingly be considered "legitimate science" according to the standards of the 
relevant scientific community ; and (ii) a determination that the reasoning of the risk assessor is 
objective and consistent and that, theref ore, its conclusions find sufficient support in the underlying 
scientific basis.  
 
85. It appears from a comprehensive analysis of the PRAs prepared by Costa Rica that the 
assessment does not comply with Article 5.1, as it is based on central reasoning that  is not supported 
by scientific evidence . In addition, the PRAs do not take into account relevant factors related to the 
risk associated with the pathway of fresh avocado imported for consumption with respect to the 
likelihood of entry, establishment and s pread of ASBVd . Rather, Costa Rica's risk assessment 
appears to presuppose a higher risk than that associated with the pathway under its analysis 
(avocado imported for consumption) . Most of the reasoning presented in the PRAs is not scientifically 
supporte d. The source provided is merely a socio -economic census carried out by a company, which 
does not justify the legitimacy of the studies carried out or the conclusions reached on the basis of 
these studies.  
 
86. In particular, the measures applied by Costa Rica are not based on a risk assessment, given 
that: 
 
˗ The assessor's reasoning is based, for the most part, on mere claims and sweeping 
assertions devoid of scientific support and rigour . It is therefore natural that the conclusions 
reached in both PRAs ar e not objective and consistent with real -world experience;  
˗ The facts and evidence presented by Mexico and drawn from real -world experience is at odds 
with the facts presented by Costa Rica in its risk assessment and throughout its submissions;  
˗ The assessme nts lack scientific support to demonstrate that the spontaneous germination of 
discarded seeds of imported avocados constitutes a risk of entry, establishment and spread 
of ASBVd;  
˗ The risk assessments are not substantiated by scientific evidence to support  a diversion from 
intended use of the seeds of imported avocados for consumption ; and 
˗ The evident lack of scientific, technical and statistical basis emerged when Costa Rica 
provided ad hoc  evidence prepared especially in response to Mexico's first written  submission 
and the Panel's questions.  WT/DS524/R/Add.1  
 
- 33 - 
  87. The lack of specificity in the risk assessed by Costa Rica signifies non -compliance with the 
SPS Agreement . The central risk stems from the diversion from intended use of avocados imported 
for consumption without being tested . Instead, a risk is assumed that the viroid enters through the 
very importation of avocados and a per se risk of diversion from intended use is assumed.  
 
88. Mexico has pointed out that the errors in the risk assessment are sufficiently serious that they 
demonstrate the lack of consistency between the risk assessments and the phytosanitary measures 
applied with the aim of protecting Costa Rican avocado trees fr om an alleged HIGH risk associated 
with the likelihood of entry, establishment and spread of ASBVd via fresh avocados imported for 
consumption . This is an alleged risk that cannot be confirmed or substantiated based on the analysis 
conducted by the Costa R ican phytosanitary authority, or derived from the scientific evidence 
presented in support of the risk assessment or the documentary evidence that has been presented 
by Costa Rica throughout this proceeding.  
 
89. It follows from the above that, due to the lack of specific scientific evidence and the lack of 
consistency between the analysis conducted by Costa Rica and the phytosanitary measures applied 
by the phytosanitary authority, there has been a failure to comply with the standard of basing 
measures on a risk assessment, appropriate to the circumstances, of the likelihood of entry, 
establishment and spread of the viroid set out in Article 5.1 of the SPS Agreement.  
 
E. The measures adopted by Costa Rica are contrary to Article 5.2 of the 
SPS Agreement  
90. Article 5.2 of the SPS Agreement complements the obligation contained in Article 5.1 and sets 
out the elements that Members must take into account when assessing risks . As to the relationship 
between Articles 5.1 and 5.2, in Australia - Apple s, the Panel indicated that Article 5.2 is "inextricably 
linked" to Article 5.1, as it lists factors that Members must take into account in their risk 
assessments . Meanwhile, Article 5.2 lists factors that Members must take into account in their risk 
asses sments such as existing scientific evidence.  
 
a. Costa Rica did not consider "existing scientific evidence" when assessing 
risks in ARP -002-2017 and ARP -2006 -2016  
91. In order to determine whether the risk assessor has taken into account available scientific 
evidence, the relationship between the risk assessor's conclusions and the relevant available 
scientific evidence must be analysed . The obligation under the SPS Agreement does not imply that 
it is sufficient to cite scientific literature ; rather , it is to demonstrate and relate objectively and 
consistently why such literature is applicable and specific to the particular case . Otherwise, it would 
be sufficient for WTO Members to justify the consistency of their measures with the SPS Agreement 
by arguing that the risk assessments contain literature generally or indirectly related to the particular 
risk, even if it does not support their conclusions.  
 
92. Costa Rica did not base its conclusions in the PRAs on relevant scientific evidence, given that : 
(i) there is no scientific evidence in the PRAs to support the risk assessment on the alleged "high" 
likelihood of entry, establishment and spread of the pathogenic agent ASBVd via the importation of 
fresh avocados for consumption from Mexico ; (ii) the PR As are based on isolated evidence, which 
has no scientific or statistical support ; and (iii) no tests, experiments or surveys were carried out, 
or any other tools used to collect scientific and statistical data that would help to support the 
conclusions co ntained in the PRAs.  
 
93. In this regard, the bibliographical sources cited in the PRAs are scientific evidence that 
Costa  Rica uses to draw erroneous and out -of-context conclusions . Moreover, some of the 
statements cited by Costa Rica : (i) are based on errors in the translation of the original text, which 
results in the quoted text having a different meaning and scope from the original ; and (ii)  consist of 
sweeping assertions with no scientific basis whatsoever.  
 
94. While there must be a "relationship b etween the conclusions of the risk assessor and the 
relevant available scientific evidence", the scientific evidence used by Costa Rica presents serious 
problems, as it is not specific to the risk associated with the pathway of importation of fresh avocado s 
imported for consumption . Rather, it is isolated evidence used out of context and inapplicable to the 
present case . Moreover, the assessment carried out by Costa Rica omitted the uncertainty analysis, 
by failing to evaluate and assess elements that must be considered when conducting a risk analysis.  WT/DS524/R/Add.1  
 
- 34 - 
  95. In addition, Costa Rica based several of its assertions on the economic studies conducted by 
CONSULSANTOS in 2010 and 2017, both of which are non -scientific research, as they are documents 
prepared by a co mmercial legal entity, which is neither engaged in research nor enjoys a reputation 
for compiling scientific evidence in the terms prescribed under WTO precedent . Consequently, the 
sources cited by Costa Rica in drawing up its PRAs are not sufficient for i ts PRAs to be deemed to be 
based on scientific evidence.  
 
b. Costa Rica did not consider "relevant inspection, sampling and testing 
methods" in its risk assessment  
96. None of the PRAs make reference to the protocol and methodology used by Costa Rica to 
inspect and sample the trees tested to confirm the alleged absence of ASBVd in the country . Nowhere 
in the PRAs is there any mention of or justification for the suitability of the method used to inspect 
the trees tested, nor is any other method used to corro borate results . In addition, the surveillance 
system that has been implemented by Costa Rica since 2014 has errors and omissions that possibly 
affected the results of the monitoring.  
 
97. In addition, there are problems in the scientific methodology used b y Costa Rica that 
contradicts the SFE 's declaration of absence of the viroid, namely:  
 
˗ Costa Rica inspected only one economic region (East Central) and 244 hectares of the 2,095 
hectares planted in the country (11.64 %); 
˗ Costa Rica inspected an area with a very low avocado yield per hectare;  
˗ There is no information indicating that backyard market gardens were inspected;  
˗ The inspection only looks for symptomatic trees in order to collect leaves for subsequent 
analysis . This eliminates the detection of asymptomatic trees;  
˗ Sampling is neither based on statistics nor on the scientific method . There is also no visual 
evidence of the inspection, selection and sampling process;  
˗ Sampling was carried out on a small number of leaf samples, without considering 
quantitative differences in the concentration of the viroid ; in other words, its distribution.  
98. The analysis of the sampling carried out by Costa Rica in 2014 and 2015, in view of I SPM 6, 
shows that Costa Rica did not carry out a survey plan  approved by the national plant protection 
organization . As a result, the viroid status in its territory was incorrectly determined . Indeed, the 
fact that 16 positive and five suspicious results were found in the 2014 sampling was overlooked . 
Costa Rica al so failed to analyse in its sampling the six economic regions in its territory . Likewise, 
the statistical results indicate that the sampling is neither representative nor reliable . Furthermore, 
the random sampling provided for in article 2.3 of I SPM 6 was omitted.  
 
99. Mexico submitted evidence – Comparativo de Protocolos de muestreo de ASBVd de México y 
Costa Rica (2019)  (Comparison of the ASBVd sampling protocols of Mexico and Costa Rica (2019)) 
– which challenges the diagnostic method of detecting ASBVd currently used by the SFE.  
 
c. Costa Rica did not consider the prevalence of ASBVd in its risk assessment  
100. Costa Rica should have analysed the prevalence of the presence of the ASBVd pathogen at 
the place of origin, in a specific area or at a specific time. 
 
101. In this regard, although Costa Rica stated that ASBVd is present in Mexico, it did not support 
this statement in its PRA with specific information regarding its distribution in Mexican territory, 
which is why prevalence is not properly supporte d in its PRA . Therefore, Costa Rica should have 
based its risk analysis on a prevalence assessment and not on mere suppositions or assertions 
without a precise scientific basis, in accordance with I SPM 11. 
 
102. Costa Rica claimed to justify the prevalence of ASBVd in Mexican territory based on the study 
by Vallejo et al., 2017, which states that in "Michoacán the incidence of ASBVd is 14 %". However, WT/DS524/R/Add.1  
 
- 35 - 
  this study is not representative as it does not cover all the li kely places of origin of Hass avocados 
exported to Costa Rica . Furthermore, it only refers to sampling in a commercial plantation in the 
municipality of Tingambato, Michoacán . For the Panel 's reference, Tingambato makes up 0.00322 % 
of the territory of Mich oacán and 0.000096 % of the territory of Mexico.  
 
103. Moreover , Michoacán is not the only state that produces avocados in Mexico . In fact, there 
are other Mexican states that produce avocados, namely Aguascalientes, Baja California, Baja 
California Sur, Ca mpeche, Colima, Chiapas, Durango, Estado de México, Guanajuato, Guerrero, 
Hidalgo, Jalisco, Morelos, Nayarit, Nuevo León, Oaxaca, Puebla, Querétaro, San Luis Potosí, Sinaloa, 
Sonora, Tabasco, Tlaxcala, Veracruz, Yucatán and Zacatecas.  
 
d. Costa Rica did no t take quarantine treatments into account in its risk 
assessment  
104. The PRA Manual does not establish a general criterion for assessing this factor in Costa Rican 
PRAs. In addition, there is no specific mention of existing quarantine treatments.  
 
e. Costa Rica did not take into account other relevant factors  
105. In EC - Hormones , the Appellate Body noted that there was no indication that the factors listed 
in Article 5.2 were intended to be a closed list . That is, the list of factors is numerus apertus and 
allows for other factors to be considered, for example:  
 
˗ Although the viroid is present in Mexico, it has not affected the industry : It is easily 
eliminated and no substantial growth has been demonstrated . This confirms the low 
economic relevance of ASBVd;  
˗ Mexico has exported avocados to Costa Rica for more than 22 years : A factor that 
clearly demonstrates Costa Rica 's inconsistencies, given that from 1993 to 2015  hundred s 
of thousand s of tons of avocados were imported for consumption, with no reports of the 
presence of ASBVd;  
˗ Costa Rica has not yet detected ASBVd in shipments from Mexico : It is mentioned in 
the PRAs that information on the detection of ASBVd in avocados from Mexico wa s requested ; 
however, the SFE gave assurances that no positive occurrences had been detected;  
˗ Diversion from intended use of seeds from avocados imported for consumption : 
Costa Rica claims that all imported avocados are infected, that their seeds will subs equently 
be diverted from intended use and that the pathogen will spread when germinating . 
However, it does not provide scientific evidence to confirm this claim;  
˗ Costa Rica fails to distinguish between the ASBVd pathogen and the Avocado 
Sunblotch Viroid d isease it causes  
106. Costa Rica assumes that simply by citing the same sections and subparagraphs of I SPM 11, 
the Panel must consider that it took into account the factors listed in Article 5.2 of the SPS 
Agreement . However, citing the same (or almost all  of the paragraphs) of I SPM 11 does not imply 
that Costa Rica has made a reasoning based on that instrument . Furthermore, Costa Rica took out 
of context and adapted some of the scientific evidence cited so that it corroborated its hypotheses.  
 
107. In orde r to demonstrate this situation, Mexico submitted evidence relating to the affidavits of 
scientific experts in Avocado Sunblotch Viroid disease and ASBVd and in avocado production, which, 
although cited by Costa Rica in its PRAs as scientific justification  for its risk assessments, conversely 
they demonstrated that Costa Rica extrapolated and took out of context the scope of their scientific 
articles . The experts are : Salvador Ochoa Ascencio, Ramón Ayala, Rodolfo de la Torre Almaráz and 
Gabriel Gutiérrez.  
 
108. Lastly, Costa Rica also failed to evaluate relevant factors that, in Mexico's view, have an impact 
on the risk estimate, such as the processes and production methods used by Mexico in the production 
of fresh avocados for export.  
 WT/DS524/R/Add.1  
 
- 36 - 
  F. Costa Rica failed to comply with Article 5.3 of the SPS Agreement by not taking 
into account relevant economic factors in assessing risk and determining its 
measures  
109. Costa Rica was required, in assessing risk, to take into account the relevant economic factors 
listed in Article 5.3, and not other economic factors . Although Costa Rica was not required to consider 
all of the factors listed in that provision, it should have taken into account the relevant factor or 
factors to support the risk analysis and to determi ne the measure to be applied to achieve the 
appropriate level of protection.  
 
110. In addition, based on Article 5.3 of the SPS Agreement, the Member must take into account 
economic factors that are relevant to support its measures and its ALOP . While this  aspect does not 
mean that Costa Rica has an obligation to justify why it decided to take into account the factors 
invoked, it does mean that it should demonstrate that it took them into account in its decision.  
 
111. Costa Rica' s PRAs did not take into ac count the potential damage due to loss of production or 
sales in the event of entry, establishment or spread of ASBVd . Furthermore, the costs of eradication 
in Costa Rican territory were not analysed, nor was a cost -effectiveness analysis of other possible  
methods to limit the risks carried out . In particular, Costa Rica's PRAs have the following 
shortcomings:  
 
˗ Costa Rica based its determination with respect to the loss of 30 % of avocado production as 
a result of ASBVd  on a study that is not representative and consequently does not 
demonstrate an acceptable and valid estimate of losses caused by the viroid;  
˗ Costa Rica 's PRAs reflect that no analysis has been made of the potential gains or benefits 
that are no longer ava ilable . In other words, there is no calculation based on losses involving 
at least the following factors : total avocado production in Costa Rica ; average retail price of 
avocados to the public in Costa Rica ; possible decline in production and yield ; possible 
reduction in retail and consumer prices ; possible percentage fall in actual yield of ASBVd on 
avocado trees . Moreover, no variables were presented that consider different scenarios such 
as: spread of the disease in the largest producing area of Costa Rica, in backyard market 
gardens ; and potential impact on exports;  
˗ Costa Rica did not take into account pest control or eradication costs that could serve as a 
basis for the calculation of economic losses in the event of entry, establishment or sprea d of 
ASBVd within its territory via fresh avocados imported for consumption;  
˗ Although Costa Rica mentioned the possibility of the existence of control and eradication or 
containment costs, it did not carry out a comprehensive study on these factors . In this 
regard, it should have considered, inter alia : direct and indirect eradication programme 
costs; budget for materials used to eradicate ASBVd ; hours of work required ; impact on the 
SFE budget of pest control and eradication ; and comparison with costs gene rated in Mexico 
to control the viroid;  
˗ Costa Rica did not carry out a cost -effectiveness analysis of other possible methods to limit 
risks;  
˗ As regards Resolutions DSFE -002-2018 and DSFE -003-2018, there is no quantitative or 
qualitative analysis of the pote ntial economic damage in relation to the impact of 
implementation of the measure.  
112. The fact that Costa Rica has cited the same or almost all paragraphs of I SPM 11 does not 
mean that its PRAs contain a reasoning based on that instrument and that they ha ve therefore been 
prepared in compliance with Article 5.3 of the SPS Agreement.  
 
113. It is therefore clear that Costa Rica's measures are inconsistent with Article 5.3 of the 
SPS Agreement by failing to take into account the relevant economic factors.  
 WT/DS524/R/Add.1  
 
- 37 - 
  G. Costa Rica's SPS measures are inconsistent with Article 2.2 of the 
SPS Agreement  
114. Mexico demonstrated that Costa Rica's measures : (i) are not necessary for the protection of 
avocados ; (ii) are not based on scientific principles ; and (iii) are maintai ned without sufficient 
scientific evidence, contrary to Article 2.2 of the SPS Agreement . It can also be confirmed that the 
scientific evidence used in the risk assessment is not sufficient to demonstrate the existence of the 
risk that the measure is suppo sed to address.  
 
115. In particular, Mexico notes that Article 2.2 excludes not only insufficiently substantiated 
information, but also non -demonstrated hypotheses . In this regard, Mexico demonstrated 
throughout its submissions that Costa Rica's PRAs are b ased on assertions that are not supported 
by scientific evidence and yet are central to its reasoning for determining risk and the SPS measures 
applied . These assertions and reasoning are as follows:  
 
˗ The document entitled "CONSULSAN TOS 2010" makes no reference to a greater tendency 
of producers to use the seeds of imported avocados for consumption for planting . There is 
therefore no evidence of a practice of diversion from intended use . In fact, the PRA 
acknowledges that there are no statistics on the quantity of imported fruit from which seed 
is extracted;  
˗ CONSULSAN TOS 2010 does not present scientific evidence that seeds falling onto the ground 
germinate on their own ; in other words, without human assistance . Such an assertion is 
intended to increase t he risk of intentional or unintentional diversion from intended use;  
˗ CONSULSAN TOS 2010 does not reflect evidence on the climatic conditions particular to 
avocado cultivation, but refers to coffee cultivation, which is an associated crop . In addition, 
while the PRA addresses the virtually spontaneous germination of seeds, it does not present 
evidence on how the dry season is taken into account in the risk posed by the importation 
of avocados for consumption at that time of the year . Despite the above, Costa  Rica appears 
to presuppose a high risk due to the volume of imports that occur throughout the year;  
˗ Costa Rica presupposes a high risk from imports without calculating the likelihood of 
imported avocados containing the viroid in its asymptomatic form . It also presupposes a 
high likelihood of diversion from intended use given their distribution throughout the 
territory, without demonstrating the link between importation and the likelihood that each 
seed is used for a purpose other than consumption throughout  the territory . Therefore, 
although Costa Rica's central concern is based on diversion from intended use, the risk 
assessment is not specific to that risk;  
˗ The high likelihood determined by Costa Rica regarding the introduction, establishment and 
spread of  ASBVd is not consistent with the assertion that ASBVd is not present in its territory . 
This is in view of the fact that Costa Rica claims there is a practice of diversion from intended 
use and makes an assumption that there is a high risk from the volume of avocado imports 
from Mexico, which has been the main exporter to Costa Rica for several years;  
˗ Costa Rica did not carry out an assessment in accordance with the measures that could be 
applied;  
˗ The deficiencies in the PRA's reasoning imply : on the one ha nd, the lack of a rational 
relationship between the scientific evidence and the risk assessment ; and, on the other hand, 
between the measures that purport to address the risk identified by Costa Rica and the risk 
assessment, as these are not sufficiently s upported by scientific evidence as required by the 
SPS Agreement;  
˗ The above -mentioned CONSULSAN TOS 2010 and CONSULSAN TOS 2017 censuses do not 
support Costa Rica's conclusions that the use of seeds from imported fresh avocados from 
Mexico is a risk factor for the transmission of Avocado Sunblotch Viroid disease and the 
ASBVd pathogen;  WT/DS524/R/Add.1  
 
- 38 - 
  ˗ Although Costa Rica submitted ex post informa tion throughout the dispute, it does not 
demonstrate the actual existence of a risk ; on the contrary, it demonstrates that Costa Rica 
could have collected more information to allow it to make an objective and consistent 
assessment.  
116. Under WTO precedent , given that the Panel found a violation of Articles 5.1 and 5.2, 
Costa  Rica's measures will also be contrary to Article 2.2 of the SPS Agreement.  
 
H. Costa Rica's measures adopt arbitrary and unjustifiable levels of protection, 
contrary to Article 5.5 of the SPS Agreement  
117. Costa Rica adopted arbitrary and unjustifiable distinctions in levels of protection . 
In EC – Hormones , the three -step legal standard applicable to the determination of a violation of 
Article 5.5 of the SPS Agreement was establishe d, namely:  
 
a. Costa Rica adopted different levels of sanitary protection for avocados in 
comparable situations  
118. In the United States  – Poultry (China) case , the Panel set up a review of the first criterion of 
the analysis contained in Article 5.5, whi ch is the existence of : (i) different situations ; and 
(ii) different appropriate levels of protection in those situations.  
 
119. In this regard, in Australia – Salmon , the Appellate Body found that situations may be 
compared if they involve a risk of entry, establishment or spread of the same disease or a risk of 
potentially related biological and economic consequences.  
 
120. Costa Rica adopted levels of phytosanitary protection in at least three different but comparable 
situations:  
 
121. The first com parable situation is : fresh avocados imported for consumption from countries 
with ASBVd vis -à-vis Costa Rican domestic avocados with the likely presence of ASBVd . Both 
situations are comparable because they involve the same high risk of entry, establishmen t and 
spread of ASBVd.  
 
122. The second comparable situation is : fresh avocados imported from Mexico vis -à-vis avocados 
imported from countries with an ASBVd presence that issue certificates . Both situations are 
comparable because, although Mexico does not certify its exports as ASBVd -free, the countries that 
do so, namely  Peru and Guatemala, have sent exports with a presence of ASBVd.  
 
123. Lastly, the third comparable situation demonstrated by  Mexico concerns : fresh avocados 
imported for consumption with ASBVd vis -à-vis avocado plants for planting . In this regard, 
Costa  Rica acknowledges motu propio that there is a comparable risk between fresh avocados 
imported for consumption from countries where ASBVd is present and avocado plants for planting.  
 
b. The existence of different appropriate levels of protection in comparable 
situations  
124. It is undisputed that Costa Rica failed to indicate its ALOP with sufficient precision . However, 
it indicated in a statement that its ALOP involves "adopting the necessary measures that minimize 
the risk of entry of the quarantine pest in question the most ". On this basis, Mexico noted the 
following distinctions:  
 
˗ Costa Rica's application of a high ALOP to avocados imported from countries with ASBVd is 
"a maximum level of phytosanitary protection", while the ALOP applied to avocados produced 
in its own terr itory is zero ; in other words, full tolerance;  
˗ Costa Rica's adoption of an alleged maximum level of protection for imports of fresh 
avocados imported for consumption from countries with ASBVd that do not issue 
"ASBVd -free" certificates, while for the same countries that have ASBVd and do issue 
certificates with the aforementioned wording, it accepts a medium risk of protection that 
could even be classified as low;  WT/DS524/R/Add.1  
 
- 39 - 
  ˗ Costa Rica decided to adopt a maximum ALOP for imports of fresh avocados imported for 
human co nsumption from countries with ASBVd . Similarly, it considers that the same high 
risk of entry, establishment and spread of ASBVd exists for : (i) imports of fresh avocados 
imported for consumption and (ii) plants for planting.  
c. The levels of protection applied by Costa Rica show arbitrary and 
unjustifiable distinctions in their treatment of comparable situations  
125. The Appellate Body has clarified that, if the distinction in sanitary measures and corresponding 
levels of protection is not jus tified, the distinction may be considered to be arbitrary or unjustifiable.  
 
126. In the first situation, Costa Rica has not justified why it is unnecessary to apply any regulations 
to domestic avocados, given that the viroid is likely to be in its territo ry due to the high risk 
associated with the likelihood of entry, establishment and spread arising from the trade in avocados 
for more than 20 years with Mexico, Peru, Guatemala and the United States . Moreover, there is no 
justification for regulating only imported avocados and not domestic avocados.  
 
127. Regarding the second situation, there is no justification whatsoever to explain why Costa  Rica 
applies a maximum ALOP to fresh avocados imported from Mexico, while the ALOP applied to 
avocados imported fro m countries where ASBVd is present, such as Peru and Guatemala, which 
issue certificates, is in practice medium or low, despite the fact that their exports have been shown 
to have ASBVd even though certifying to the contrary.  
 
128. Lastly, as regards the t hird situation, there is no technical or scientific reason to explain why 
a similar ALOP applies to two situations that constitute clearly different risks, namely : (i) the 
importation of fresh avocados for consumption ; and (ii) the importation of plants fo r planting.  
 
129. Furthermore, by failing to provide such justifications, we can affirm that there is no objective 
relationship between the measures, as required by the chapeau of Article XX of the G ATT 1994, 
which is closely linked to the analysis of Arti cle 5.5, as established in WTO jurisprudence.  
 
d. Arbitrary and unjustifiable distinctions result in discrimination or a 
disguised restriction on international trade  
130. In this section, two elements are of utmost importance and must be considered in order to 
demonstrate compliance with this last point of the cumulative review : the first is discrimination 
which, as noted above, is the result of being in comparable situations with differential treatment 
unjustifiable under WTO jurisprudenc e; and the second is the disguised restriction on international 
trade.  
 
131. To demonstrate the second element, we rely primarily on the ruling of the Appellate  Body in 
Australia – Salmon , in which it found that an SPS measure not based on a risk assessmen t 
constitutes a strong indication that the measure in question is not intended to protect the objectives 
of the SPS Agreement . In other words, it constitutes a disguised restriction on international trade . 
This aspect has been addressed on multiple occasio ns during this dispute and enables us to affirm 
that we are dealing with a disguised restriction on international trade.  
 
132. In addition, Mexico has noted that there is a restriction on international trade, given that the 
differences in the levels of pro tection are arbitrary and unjustifiable, and that the extent of the 
discrepancy between the levels of protection is significant and considerable.  
 
133. As a result, we can affirm that Costa Rica's measures are discriminatory and constitute 
disguised restrictions on international trade . This is because they establish arbitrary distinctions that 
cannot be justified in their levels of protection, even in comparable situations, which is inconsistent 
with Article 5.5 of the SPS Agreement.  
 
I. Costa Rica's phytosanitary measures are inconsistent with Article 2.3 of the 
SPS Agreement  
134. Mexico considers that, according to WTO precedent, once a violation of Article 5.5 has been 
established, a consequential violation of Article 2.3 of the SPS Agr eement can be confirmed.  
 WT/DS524/R/Add.1  
 
- 40 - 
  J. The measures adopted by Costa Rica are contrary to Article 5.6 of the SPS 
Agreement  
135. In Australia – Salmon , the Appellate Body identified three elements for finding a violation of 
Article 5.6 of the SPS Agreement, which are  cumulative . In other words, all three elements must be 
present, namely : (i) the demonstration of the existence of a reasonably available alternative 
measure, taking into account its technical and economic feasibility ; (ii) that the alternative achieves 
the Member's appropriate level of protection ; and (iii) that the alternative is significantly less 
trade -restrictive than the challenged SPS measure.  
 
a. Alternative measures to the measures adopted in Resolutions 
DSFE -003-2018 and DSFE -002-2018 are reasonably available, taking into 
account their technical and economic feasibility  
136. Mexico has demonstrated that, since Costa Rica implemented the measures in dispute, 
alternative phytosanitary measures have been reasonably available to Costa Rica, tak ing into 
account their technical and economic feasibility, namely : (i) regulation to prevent the diversion from 
intended use of seeds from fresh avocados for consumption as a means of propagating new plants ; 
and (ii) certification that shipments are free o f ASBVd pathogen symptoms.  
 
137. With respect to the first alternative measure, Mexico has noted that this is a phytosanitary 
measure reasonably available to Costa Rica, taking into account its technical and economic 
feasibility . In fact, throughout its su bmissions Mexico demonstrated that this alternative measure 
has been implemented by Chile in Exempt Resolution No. 8182, which not only makes it theoretically 
feasible but also practically feasible.  
 
138. Costa Rica has confirmed that this alternative meas ure is reasonably available, as on 
23 September  2019 it implemented Decree No. 41995 -MA, which is a regulation prohibiting the 
planting of seeds from avocados imported from countries with ASBVd . In addition, these two 
elements should have been taken into a ccount by the Costa Rican phytosanitary authority to reduce 
the uncertainty alleged by Costa Rica.  
 
139. Furthermore, there is certification that shipments are free of ASBVd pathogen symptoms . This 
measure is also reasonably within Costa Rica's reach, as i t is not an alternative that imposes an 
undue or heavy burden.  
 
140. This alternative represents a measure that is less restrictive, as avocados with visible 
symptoms would be discarded, as opposed to carrying out laboratory tests that are overly 
burdensome, and no action by the Costa Rican Government is required, as the bu rden of certifying 
that fresh avocados are free of visible symptoms of ASBVd would fall on the Mexican authorities.  
 
b. Mexico's proposed alternatives achieve Costa Rica's appropriate level of 
protection  
141. The SPS Agreement tacitly imposes an obligation  on the Member applying phytosanitary 
measures to determine its appropriate level of protection . The ALOP is an objective and 
SPS measures are the instrument chosen to achieve that objective . While the setting of the ALOP 
does not require a determination i n quantitative terms, an importing Member cannot determine it in 
ambiguous or misleading terms, as clarity in its determination is required in order to apply other 
relevant provisions of the SPS Agreement, especially the obligation contained in Article 5.6 . 
 
142. Costa Rica did not define its ALOP  with sufficient precision and is not consistent in its objective 
evaluation of the facts, which is ambiguous and confusing, defining its ALOP as a "maximum level 
of phytosanitary protection" without taking into account the principle of "managed risk".  
 
143. Exempt Resolution No. 8281 is a model for a regulatory alternative to prevent the diversion 
from intended use of the seeds of fresh avocados for consumption as a means of propagating new 
avocado plants in order to achieve Costa Rica's level of phytosani tary protection . The SFE would 
have to regulate the diversion from intended use of the seeds of fresh avocados for consumption as 
the only pathway for the ASBVd pathogen to enter, establish and spread in Costa Rican territory.  
 WT/DS524/R/Add.1  
 
- 41 - 
  144. Mexico reiterates that fresh avocados do not represent a risk, or at least they represent a 
significantly low risk, due to the need to sow the seeds of this fruit . Under this premise, this 
acceptable risk should not restrict the importation of fresh avocados for consumption . The measure 
should therefore be aimed at preventing the diversion from intended use and not the entry of fresh 
Mexican avocados.  
 
145. Furthermore, there is certification that shipments are free of ASBVd pathogen symptoms as 
another proposed a lternative available to Costa Rica to achieve the ALOP.  
 
146. Assuming that Costa Rica is free of ASBVd, it could be argued that the importation of fresh 
avocados for consumption poses no risk, otherwise Costa Rica would have been negatively impacted 
by its trade with Mexico, which has a 20 -year history . Therefore, the simple certification that 
avocados are free of ASBVd symptoms is feasible and would achieve the same level of protection 
that Costa Rica seeks to achieve.  
 
c. The alternatives proposed by Mex ico are significantly less trade restrictive 
than Resolutions DSFE -003-2018 and DSFE -002-2018  
147. Mexico submitted evidence showing that there was zero prevalence of the ASBVd 
asymptomatic variant in packs of avocados from Mexico . It is therefore possible  to say that the 
alternatives presented meet Costa Rica 's "maximum" phytosanitary protection level.  
 
148. The proposed alternatives do not involve import restrictions, as they do not impose additional 
obligations on the product or on the exporting country . As mentioned above, individual laboratory 
tests place excessive burdens on imports, which discourages imports, so that the alternative 
measures, being less burdensome, are less trade restrictive . It is important to draw attention to 
what was mentioned by the Panel in the India - Agricultural Products case, where it is established 
that any measure that imposes conditions on imports, however stringent, would be significantly less 
trade restrictive than an outright ban, as is the case here, where we are faced with a de facto ban, 
which has stopped all imp orts of fresh avocados from Mexico to Costa Rica.  
 
K. Costa Rica's measures are inconsistent with Article 6.1 of the SPS  Agreement  
a. Costa Rica's assessment did not take into account the factors in the second 
sentence of Article 6.1  
149. While a Member im posing phytosanitary measures must ensure that such measures are 
adapted to the sanitary circumstances of the area of origin and destination of the product, Costa 
Rica did not do so for the following reasons:  
 
i. Costa Rica did not take into account the le vel of prevalence of ASBVd in its 
territory and in the exporting countries  
 
150. Costa Rica failed to analyse the level of prevalence of the pest in its territory . This lack of 
appropriateness to the circumstances is reflected in its PRA Manual, given that it does not require 
the analysis of specific areas but the mere existence of reports on the distribution of the pest . This 
makes it clear that Costa Rica did not take into account the different levels of prevalence of ASBVd.  
 
151. It should be noted t hat Costa Rica did not demonstrate that it had based the declaration of 
absence of ASBVd in its territory on I SPM 6 and 8 . Mexico drew the Panel 's attention to the fact that 
the importance of its surveillance system taking ISPMs 6 and 8 into account is tha t the system is a 
tool to achieve the objective of regionalization.  
 
152. Costa Rica should have observed the circumstances within its own territory, so as to adapt its 
measures to the phytosanitary characteristics of the areas of destination of the produc t without 
applying more restrictive measures to international trade than necessary . However, it failed to do 
so. 
ii. Costa Rica did not take into account the existence of eradication or control 
programmes  
 WT/DS524/R/Add.1  
 
- 42 - 
  153. Costa Rica's measures do not appear to have t aken into account the existence of an ASBVd 
eradication or control programme in its territory . In fact, the shortcomings apparent in Costa Rica's 
surveillance system confirm this situation.  
 
iii. Costa Rica did not take into account appropriate criteria or  guidelines 
developed by the relevant international organizations  
 
154. While no specific guidelines have been issued with respect to ASBVd, as demonstrated above, 
the IPPC has issued relevant international standards that serve to encourage the proper appl ication 
of phytosanitary measures . In this case, if Costa Rica had taken ISPMs 6 and 8 into account, it would 
not have failed to make an appropriate determination of its phytosanitary status and to properly 
adhere to its surveillance system . This would have led to adopting phytosanitary measures 
appropriate to its actual phytosanitary status . From the 2014, 2015 –2016, 2017 –2018 and 
2019 samplings, it does not appear that a proper and rigorous surveillance system has been 
implemented to provide assu rance to Costa Rica's trading partners regarding its phytosanitary 
status.  
 
b. Costa Rica did not ensure that its measures were adapted to the 
phytosanitary characteristics of its territory  
155. WTO precedents have determined that adapting a measure means ensuring that it is tailored 
to the specific sanitary or phytosanitary characteristics of the area in question and must meet various 
specifications, including that if the area of origin of a product presents a lower level of risk than the 
rest of the terri tory of an exporting member, the importing member would be required to impose 
less stringent conditions on imports of products from that area . In this connection, the measures 
implemented by Costa Rica should be relaxed because there is evidence in Costa R ica of the presence 
of ASBVd where avocados are produced.  
 
L Costa Rica's measures are inconsistent with the second sentence of Article  1.1 
and Article 2.1 of the SPS Agreement  
156. Given that Costa Rica's measures are : (1) not based on relevant internatio nal standards ; (2) 
not based on scientific evidence ; (3) adopted without an appropriate risk analysis ; (4) more 
restrictive than necessary and arbitrarily and unjustifiably discriminatory, they are also arguably 
inconsistent with Article 1.1 and Article 2. 1 of the SPS Agreement.  
 
CLAIMS UNDER THE G ATT 1994  
M. Costa Rica's measures are inconsistent with Article XI:1 of the G ATT 1994  
157. Article XI:1 of the G ATT 1994 provides that no contracting party may maintain prohibitions or 
restrictions on the importation of any product . To demonstrate non -compliance, an analysis of two 
elements is required under this provision, which are : (i) that the measure involves "duties, taxes or 
other charges" ; and (ii) that it constitutes a prohibition or restriction on the importation or 
exportation or sale for export of a product.  
 
a. The measures adopted by Costa Rica comprise "other measures" within 
the meaning of Article XI:1 of the  GATT 1994  
158. Resolutions DSFE -002-2018 and DSFE -003-2018 represent measures that restrict or prohibit 
the importation of fresh avocados through the imposition of sanitary certificates . Therefore, the first 
element of the analysis has been fulfilled, as this imposition falls within the scope of the phrase 
"duties, taxes or other charges".  
 
b. The measures adopted by Costa Rica constitute a restriction on the 
importation or exportation or sale for export of avocados from Mexico  
159. The measures have had a  limiting effect on imports, as the exportation of fresh avocados from 
Mexico has been halted due to the burden generated by sanitary certificates, which have created a 
de facto restriction since 2015 . Consequently, there has been a violation of Article  XI:1 of the 
GATT 1994. 
 WT/DS524/R/Add.1  
 
- 43 - 
  N. Costa Rica's measures are inconsistent with Article III:4 of the G ATT 1994  
160. As stated in the analysis of the violations of Article 5.5 of the SPS Agreement, Costa  Rica, by 
imposing the aforementioned measures, accorde d less favourable treatment to fresh avocados from 
Mexico as compared to fresh avocados for consumption from other countries with ASBVd and their 
domestic avocados . Costa Rica's measures are therefore inconsistent with Article III:4 of the 
GATT 1994. 
 
a. Elements for demonstrating inconsistency with Article III:4 of the 
GATT 1994  
161. The product at issue in this dispute is the Hass avocado variety, of the class Persea Americana 
Mill. Consequently, the properties, nature and quality of avocados from Mexico and those from Costa 
Rica are similar . As far as the final use of the product is concerned, it is avocado for consumption . 
When talking about consumer tastes and habits, it should be noted that consumers do not care 
about the origin of the avocado . Lastly,  fresh avocados have the same tariff classification 
(subheading 080440) . This demonstrates that we are dealing with like products under Article  III:4 
of the GATT  1994.  
 
162. Moreover, the measures violating this Article are Resolutions DSFE -002-2018 and 
DSFE -003-2018, which are regulations within the Costa Rican legal system and which impose 
requirements only for the importation of fresh avocados, thus creating a competitive disadvantage 
with respect to exported avocados . Thus, the second requirement of p aragraph 4 of Article III:4 has 
been met.  
 
163. Lastly, as regards the less favourable treatment accorded to like products compared to those 
of domestic origin, it is worth noting what has been mentioned above, given that it creates a 
competitive disadvant age for imported avocados over Costa Rican avocados . In particular, it should 
be recalled that the Costa Rican Ministry of the Economy, Industry and Commerce recognized that 
"the presence of Mexican imports leads to an increase in supply, resulting in incr eased competition 
in the Costa Rican market, and consequently in rivalry between companies in terms of prices and 
quality . Imposing non -tariff barriers on the entry of avocados from the country from which more 
than a third of the total imports of this frui t are imported, amounts to a reduction in supply . This 
reduction can therefore be translated into an increase in prices, a decrease in the quality offered or, 
in other words, a decrease in competition in that market", thus confirming the competitive 
disadv antage faced by imported avocados.  
 
VI. CONCLUSIONS  
164. It is demonstrated from the facts and arguments submitted by Mexico over the course of the 
proceeding that the measures adopted by Costa Rica are inconsistent with Articles 1.1, 2.2 and 2.3, 
3.1 and 3.3, 5.1, 5.2, 5.3, 5.5 and 5.6, and 6.1 of the SPS Agreement, as well as with Articles  III.4 
and XI.1 of the G ATT 1994. M oreover, Costa Rica's measures are not justified under the provisions 
of the WTO covered agreements.  
 
165. Costa Rica's measures a re not justified under Article XX(b) of the G ATT 1994 for the following 
reasons . What was established by the Panel in the United States - Poultry (China) case is relevant 
because, when analysing the consistency between Article XX(b) of the G ATT 1994 and th e 
SPS Agreement, it was considered that when an SPS measure is inconsistent with Articles 2 and 5 
of the SPS  Agreement, the disciplines of the same paragraph are no longer applicable, as in the case 
at hand . Moreover, the measures do not meet the necessity analysis, as Mexico has argued that 
there is no scientific evidence to demonstrate that fresh avocados for consumption are a pathway 
for the introduction of the viroid into Costa Rica, and therefore the measures do not contribute to 
the intended purpose and do not meet the level of scrutiny necessary to invoke the aforementioned 
article.  
 
 WT/DS524/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COSTA RICA  
1 INTRODUCCIÓN  
1.1.  This dispute concerns certain measures laid down by Costa Rica in respect of the importation 
of fresh avocados for consumption originating in countries in which the pest Avocado Sunblotch 
Viroid (ASBVd), the causal agent of Sunblotch, is present . ASBVd is a pest of major economic 
significance that affects avocado  groves and is present in several countries where avocados are 
grown, including Mexico . The pest is absent from Costa  Rica. 
1.2.  In view of the risk of introducing a pest such as ASBVd that would have irreparable 
consequences for avocado crops, Costa  Rica compl ied with the multilateral obligations incumbent 
upon it and laid down measures based on scientific evidence in a manner consistent with the 
principles of reasonableness, proportionality, non -discrimination and transparency . Costa Rica has 
merely exercised its sovereign right to adopt measures to mitigate the risk of introducing this pest 
while seeking to minimize to the greatest extent possible the negative effects on international trade.  
1.3.  In Costa  Rica's view it is only to be expected that Mexico, a major e xporter with significant 
resources in the avocado sector, may have concerns that a relatively small country such as 
Costa  Rica might impose measures of this kind . However Costa Rica, like the other Members of the 
World Trade Organization (WTO), regardless of its relative impact on international trade, has the 
right (and in fact the duty) to safeguard phytosanitary integrity within its territory as recognized in 
the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and 
WTO l aw generally . Costa Rica has adopted the measures at issue and defends them openly in these 
proceedings.  
1.4.  Mexico submits that Costa Rica's phytosanitary requirements in relation to ASBVd are 
disproportionate or unusual, when in reality they are not . Other c ountries where this pest is absent, 
such as New  Zealand, Panama or New  Caledonia, impose similar measures .1 Furthermore, Mexico 
itself regulates plant products for consumption  (e.g. potato) with respect to pests of concern to it by 
imposing phytosanitary requirements identical to those adopted by Costa  Rica in this case .2 The 
countries that do not regard ASBVd as a quarantine pest are countries that do not grow avocados 
or tha t already have the viroid within their territories . Consequently, the measures taken by 
Costa  Rica are completely understandable in view of the devastating economic impact of ASBVd on 
avocado crops and the significant ability of the pest to be introduced i nto and spread across a country 
from which it is absent .3 Mexico also recognizes that there is no cure for ASBVd and that the viroid 
is transmitted in many ways, including through avocado seeds.4 
1.5.  The phytosanitary requirements imposed by Costa  Rica on av ocados originating in Mexico are 
the same as those imposed on avocados from any other country where the ASBVd pest is present . 
Those requirements are as follows : any load of fresh avocados for consumption from a country with 
the pest may enter Costa  Rica w here accompanied by a phytosanitary certificate attesting that the 
consignment or its place of production is free from ASBVd, or where a work plan previously agreed 
between the two countries has been adhered to .5 Costa Rica will verify the pest absence ce rtificate 
at the point of entry through sampling and laboratory testing (RT -PCR).6 Additionally, Costa  Rica 
has a surveillance programme that to date continues to confirm the absence of ASBVd from its 
 
1 See Costa  Rica's response to Panel question No.  97, and the MAF, New Zealand's requirements 
(1998), Exhibit  CRI-25; Resolution, AGROCALIDAD, Ecuador, Exhibit  CRI-26; Requisitos fitosanitarios Panamá, 
Exhibit  CRI-109; and Requisitos fitosanitarios Nueva  Caledonia, Exhibit  CRI-110. 
2 Medidas fitosanitarias de México para papa, Exhibit  CRI-32. 
3 Costa  Rica's first written submission, para.  3.8. 
4 Mexico's first written submission, paras.  48-50. 
5 Costa  Rica's first written submission, paras.  3.29-3.30. 
6 As Costa Rica explained it its response to Panel question  No. 45, laboratory analysis is conducted 
to verify  adherence as declared in the phytosanitary certificates. Costa  Rica also conducts regular laboratory 
testing for monitoring  purposes.  WT/DS524/R/Add.1  
 
- 45 - 
  territory .7 Accordingly, in the view of Costa  Rica, it would appear inappropriate for Mexico to suggest 
in these proceedings that Costa  Rica has failed to act expeditiously or in conformity with the 
obligations incumbent upon it by imposing the measures at issue.  
1.6.  Mexico has submitted claims under the SPS Agreement and the General Agreement on Tariffs 
and Trade 1994 (GATT), but has failed to substantiate them.  
1.7.  In this written submission, Costa  Rica will address the following matters:  
• Mexico's claims  contain obvious flaws from the outset . Mexico is seeking a decision from the 
Panel on Costa Rica's Pest Risk Analysis Manual ("the Manual"), Pest Risk Analyses (PRA) and 
phytosanitary requirements "as a whole" ["en conjunto"], but has failed to establish that such 
an overarching measure exists . Accordingly the Panel should reject outright Mexico's request 
for findings on a measure "as a whole" . Even when the measures are considered individually, 
Mexico still fails to establish that the Manual and the PRAs constitute phytosanitary measures, 
as defined in Annex  A.1 to the SPS Agreement, that affect international trade, within the 
meaning of Article  1.1 of the SPS Agreement . Consequently, the Panel should dismiss all 
Mexico's claims seeking findings in respect of the Manual and the PRAs.  
• Moreover, Mexico has tried improperly to include as part of this dispute the determination that 
the pest is absent fro m Costa  Rican territory , which is not a measure at issue covered in 
Mexico's request to the Panel . It is difficult to discern whether Mexico is challenging that 
determination as a measure in its own right, as part of the PRA or whether it is a factual aspe ct 
intended to substantiate its claims . Given that this is a moving target, both Costa  Rica's right 
of defence and the making by the Panel of an objective assessment of the matter have been 
impeded . Furthermore, the late submission of the claims has preven ted third parties from 
being able to express their views in that regard . In any event, the determination of absence 
of a pest is a sovereign endeavour for each Member's phytosanitary authorities . Costa Rica 
has explained in detail the procedures followed . Mexico questions those procedures on the 
basis of mere conjecture . For example, Mexico states that Costa  Rica issues documents ex 
post to support the absence of surveillance programmes . However, Mexico fails to identify the 
alleged ex post documents .8 By contrast, Costa  Rica has acted transparently and provided all 
the explanations and information requested by the Panel on its surveillance work . Therefore 
Costa  Rica asks the Panel to decl are inadmissible Mexico's request for a Panel ruling on the 
determination of pest absence, and the claims related thereto.  
• With regard to harmonization , Mexico has failed to establish the existence of relevant  
international rules governing ASBVd, since non e of the ISPMs to which it refers reflects any 
level of protection against the risk that this pest poses . Even in the event that the ISPMs 
referred to by Mexico are considered relevant, and the Manual and PRAs are to be regarded 
as phytosanitary measures t hat affect international trade, those instruments would not be 
subject to the harmonization obligation because they do not result in any level of protection . 
In any event, Mexico has failed to establish that Costa  Rica's measures are not based  on the 
ISPMs  to which Mexico refers . Therefore the Panel should dismiss outright Mexico's claims in 
respect of harmonization.  
• In relation to risk assessment , the SPS  Agreement only requires Costa  Rica to perform a risk 
assessment that complies with the requirements la id down in that Agreement . It is clear from 
the evidence submitted to the Panel that Costa  Rica conducted that risk assessment and based 
its phytosanitary requirements on it, in conformity with the SPS  Agreement . Although Mexico 
might like the Costa  Rican phytosanitary authorities to conduct risk assessments as detailed, 
sophisticated and lengthy as those performed by countries such as Australia9, such 
assessments are not required under the SPS Agreement . Mexico has failed to establish that 
Costa  Rica's ph ytosanitary requirements are not based on the scientific and technical 
 
7 See for example  Costa  Rica's first written submission, paras.  3.18-3.27; Report of Costa  Rica in 
response to the Panel's request for information and supporting documentation in dispute DS524 before 
the WTO, 14  September 2020.  
8 See for example Costa Rica's response to Pa nel question No.  137. 
9 Mexico's opening statement at the first substantive meeting of the Panel, paras.  49-50, and 
Exhibit  MEX-173. WT/DS524/R/Add.1  
 
- 46 - 
  conclusions of an appropriate pest risk assessment . Therefore the Panel should dismiss 
Mexico's claims in respect of the risk assessment.  
• Where trade restriction  is concerned, there are  no less restrictive measures for controlling a 
quarantine pest than those applied by Costa  Rica. Even if the Panel were of the view that the 
risk of entry, establishment and spread of ASBVd in Costa  Rica is "low", the measures applied 
by Costa  Rica would be the same as those that apply currently, for example the consignment 
would have to be certified as pest -free. Mexico itself applies these measures to low -risk 
pests .10 Mexico has not submitted any alternative that achieves Costa  Rica's Appropriate Level 
of Protection (ALOP) . First, Mexico suggests domestic regulations that prohibit diversion from 
[intended] use . However, the measure in question already exists as a supplement to 
phytosanitary import requirements and is not by itself sufficient to achieve C osta Rica's ALOP . 
Secondly, Mexico suggests certification of consignments as free of symptoms  of ASBVd . 
However this option amounts to a mere quality control that ignores the existence of 
asymptomatic  fruits. Therefore the Panel should dismiss Mexico's cla ims in respect of trade 
restriction.  
• The matter of discrimination and regionalization of the territory of Costa  Rica is very 
straightforward : ASBVd is present in Mexico and is not present in Costa  Rica. Costa Rica is not 
under an obligation either to treat different situations in a like manner or to regionalize its 
territory, from which the pest is absent in its entirety . Therefore the Panel should dismiss 
Mexico's claims in respect of discrimination and regionalization of Costa  Rica's territory.  
1.8.  In co nclusion, Mexico has submitted a case based on trade concerns but which is entirely 
lacking in legal substance under WTO law . Accordingly, Costa  Rica respectfully requests the Panel to 
dismiss all of Mexico's claims.  
2 FLAWS IN MEXICO'S CLAIMS  
1.9.  The measure or measures that Mexico is challenging and the specific Panel findings that it is 
seeking in respect of each of them remain unclear despite the many opportunities to explain that 
Mexico has been afforded . As this subsection will explain, the Panel should d ismiss Mexico's request 
for its claims to be evaluated on the basis of an "as a whole" measure . Additionally the Panel should 
also dismiss Mexico's claims under Articles  3.1 and  3.3 of the SPS Agreement in respect of PRAs and 
the Manual, which are not phyt osanitary measures that affect international trade and are not, 
therefore, subject to those provisions.  
1.10.   It is clear from Mexico's response to Panel question  No. 99 that Mexico itself is unclear about 
its own claim . On the one hand, Mexico states that "the measures operate together, as an 
inseparable whole" and expressly states that it "does not seek a separate decision for each of the 
measures" .11 On the other hand, Mexico states in a table which of Costa  Rica's "measures", 
separately, violate each obligati on under the SPS Agreement .12 For instance Mexico singles out the 
Manual as relevant only in respect of its claims under Articles  3.1, 3.3 and 1.1 of the SPS  Agreement 
and not in respect of any other provision . Mexico also states that its claim under Artic le 5.1 of the 
SPS Agreement concerns only the PRAs, and that its claim on discrimination relates only to the 
Resolutions .13 Mexico's two positions here are obviously contradictory . The lack of clarity in the 
 
10 Requisitos México para plagas cuarentenarias de riesgo bajo, Exhibit  CRI-107. 
11 Mexico's response to Panel question  No. 99, para.  121. 
12 Mexico's response to Panel question  No. 99, para.  120. 
13 In addition to contradicting its request for the measures to be examined as an inseparable whole, the 
table shows that Mexico confuses the concepts of "measure" and "legal instrument" , which are different things. 
A "measure" is an act or omission attributable to a WTO Member which in turn may be reflected in one or more 
"legal instruments". The measure, not the legal instruments, is to be examined in the light of the obligations 
entere d into under the covered agreements. Mexico's table separates the "Measure(s)"1 (Mexico's wording) at 
issue in each claim, which are exactly the same as the "five different legal instruments  in this dispute"1 
(Mexico's wording once again) identified in its  response to Panel question No.  99, namely the two Resolutions, 
the two PRAs and the Costa Rican Manual. Accordingly it is clear that in the eyes of Mexico, measures and legal 
instruments are the same thing, which is legally erroneous. The confusion could explain why the 
characterization of the measure at issue changes with each written submission Mexico makes, and why it is 
such a complicated task to understand the exact nature of the complainant's real concern in this dispute.  WT/DS524/R/Add.1  
 
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  complainant's case requires the Panel to act wit h extreme caution when issuing its conclusions given 
that it is not its function "to make good the absence of argumentation on a party's behalf".14 
1.11.   In particular, Costa  Rica notes that Mexico has not made any effort to prove that Costa  Rica's 
measures oper ate "together as an inseparable whole" . Challenging measures "as a whole" is a task 
that requires certain assumptions to be verified . Measures of this kind, also known as overarching 
measures, have previously been challenged at the WTO and WTO case law pro vides a clear and 
detailed guide about what a complainant has to prove in such claims . In Argentina – Import Measures 
for instance, the Appellate Body stated that a complainant that challenges an overarching measure 
will need to provide evidence in relation to two elements, namely (a) " how they operate together  as 
part of a single measure", and (b) "how a single measure  exists as  distinct from its components ".15 
1.12.   In order to demonstrate "how they operate together as part of a single measure", the 
complainant must identify the purported components of the measure and explain how they operate 
together . As to "how a single measure  exists as  distinct from its components ", the complainant 
needs to demonstrate that the overarching measure is clearly disti nct from its components . This is 
particularly important where the components of the overarching measure are challenged as separate 
measures . Accordingly, as the Panel noted, in United States – Export Restraints , the global or 
overarching measure must have "a functional life of its own", independent of any other such 
measure, for it to be able to "give rise independently to a violation of WTO obligations".16 
1.13.   Mexico has failed to establish any of those elements . Therefore the Panel should determine 
that it is  irrelevant to evaluate Mexico's claims on the basis of an overarching measure or a measure 
"as a whole".  
1.14.   Having said this, in the event that the measures/instruments identified by Mexico are 
examined separately, Costa  Rica reiterates that Mexico has faile d to meet the basic burden of proof 
in respect of the applicability of the SPS Agreement to each of the measures/instruments in question . 
Mexico has failed to establish how the PRAs and the Manual comply with the definition of 
phytosanitary measure provide d for in Annex  A.1 of the SPS Agreement, which refers to [any] 
"measure […] applied […] to protect  […] plant life or health" from certain risks . Unlike the 
phytosanitary requirements, the PRAs and the Manual are not measures "applied" with the objective 
or purpose of protecting avocado cultivars in Costa  Rica. PRAs constitute the technical grounds for 
phytosanitary requirements, whereas the Manual is an internal guide used by Costa  Rica's 
State  Phytosanitary Service (SFE) for conducting pest risk analysis g enerally . Neither has Mexico 
explained how the PRAs and the Manual allegedly affect international trade under Article  1.1 of the 
SPS Agreement, even in its response to Panel question No.  100, where the Panel expressly requested 
an explanation to that end . In fact in that response, Mexico states "assuming that the Manual and 
the PRAs do not affect trade per se ".17 The direct consequence of this, by virtue of Article  1.1 of the 
SPS Agreement, is that the Manual and the PRAs do not constitute phytosanitary mea sures that are 
subject to the obligations under the SPS Agreement.  
1.15.   Consequently, in the light of the definitions set out in Annex  A.1 of the SPS Agreement and 
Article  1.1 of the SPS Agreement, Mexico has failed to satisfy the basic burden of proof in respe ct of 
the applicability of the SPS Agreement to the PRAs and the Manual . Therefore the Panel should 
dismiss all of Mexico's claims in respect of those instruments . 
3 DETERMINATION OF ABSENCE OF THE PEST IS OUTSIDE THE TERMS OF REFERENCE OF 
THIS DISPUTE  
1.16.   Another matter of utmost importance is the alleged presence of the ASBVd pest in Costa  Rica 
that Mexico has improperly sought to introduce into this dispute . According to Mexico, "the Panel 
has a mandate to determine and evaluate whether the declar ation of absence of the [viroid] in the 
territory of Costa  Rica" is inconsistent with Article  3.3 of the SPS Agreement .18 However, as 
Costa  Rica explained19, Articles  7.1 and 6.2 of the DSU limit this Panel's terms of reference and, 
 
14 Appellate Body Report, United States – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  7.176.  
15 Appellate Body Report,  Argentina – Import Measures , para.  5.108. (emphasis added).  
16 Panel Report, United States – Export Restraints , para.  8.85. 
17 Mexico's response to Panel question No.  100, para.  125. 
18 Mexico's comments on Costa  Rica's Surveillance Report, para.  15. 
19 Communication of Costa  Rica of 6  October 2020.  WT/DS524/R/Add.1  
 
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  therefore, its jurisdic tion, to the content of the request for the establishment of a panel . There is no 
question whatever that Mexico did not include in its request for the establishment of a panel "the 
declaration of absence of the Sunblotch viroid in the territory of Costa  Rica" as a measure at issue, 
much less any alleged incompatibility between that measure and Article  3.3 of the SPS  Agreement .20 
Consequently, neither the determination of the pest's absence, nor the alleged incompatibility of 
that determination with Article  3.3 of the SPS Agreement are part of the matter before the Dispute 
Settlement Body ; they are therefore outside the Panel's mandate.  
1.17.   In addition, Costa  Rica is of the view that the determination of the viroid's absence should not 
become a "moving target" th at Costa  Rica must continually defend in diverse ways, depending on 
Mexico's changing litigation strategy . This would clearly be prejudicial to Costa  Rica's right of defence 
and would impede the Panel in its duty under Article 11 of the DSU to make an obje ctive assessment 
of the matter . As Costa  Rica has explained in detail in prior communications21, it is difficult to identify 
whether Mexico is challenging the determination of the pest's absence from Costa  Rica as a measure 
in itself, as part of the risk a ssessment, or whether it constitutes a factual element or premise to 
substantiate its case in respect of harmonization, discrimination and regionalization . Neither has 
Mexico indicated which provisions of the covered agreements are related to or inconsiste nt with the 
determination of the viroid's absence from Costa  Rica. 
1.18.   Moreover, the late submission of these claims has prevented third parties from expressing 
their views on this matter and is contrary to the Panel's working procedures, which reflect the 
understanding that claims and arguments should be submitted at an early stage in the proceedings .22 
In view of the foregoing, Costa  Rica reiterates its request that the Panel should declare inadmissible 
Mexico's request for a Panel ruling on the determination  of absence of the pest, and the claims 
related thereto.  
1.19.   In any event, Costa  Rica places on record that a declaration of absence of a pest in a territory 
is a matter of national sovereignty, as the experts have acknowledged . The NPPO of Costa  Rica is 
the relevant organization for the purposes of determining the absence of quarantine pests within the 
country's territory and is responsible for surveillance work .23 Indeed, surveillance " is the job of the 
national NPPO"24 and is performed on the basis of "official information" from that body .25 As has 
been explained throughout these proceedings and in Costa  Rica's Surveillance Report, Costa  Rica 
followed the general guidelines set out in ISPMs  Nos. 6 and 8 (and their respe ctive guides) for 
determination of absence and deployed – and continues to deploy – its best efforts to conduct good 
general and specific surveillance . In that regard the experts have made it quite clear that there is 
no such thing as a perfect surveillanc e system26 and that in its surveillance work, Costa  Rica 
maintained sample representativeness27, and adequate sample traceability .28 As to "laboratory 
testing […] the methods used are appropriate, the PCR techniques are the techniques currently in 
force" .29 Additionally, "the standards are guidelines, they are not procedural manuals that tell us 
what to do step by step"30, for example they do not state the specific number of samples to take31 
or the number of days sampling should last .32 "Based on [the] gen eral surveillance [conducted by 
Costa  Rica] there is no reason for Costa Rica to believe that Sunblotch is present in their country" .33 
Additionally, as "we don't have guidance from the standards that help us understand what level of 
 
20 In Section  II of its request for the establishment of a Panel, headed "Specific measures at issue", 
Mexico includes only the following: "Resolutions DSFE 003 -2018 and DSFE -002-2018 issued by the SFE of the 
Ministry of Agriculture and Livestock of Costa  Rica, of 29  January 2018. 2. Reports ARP -002-2017 
and ARP-006-2016 drawn up by the Pest Risk Analysis Unit of the SFE of 10  July 2017, and 
Manual  NR-ARP-PO-01_M -01 setting out the qualitative methodologies used in pest risk analysis".  
21 Communication of Cost a Rica of 6  October 2020.  
22 Panel's Working Procedures, adopted on 16  July 2019, paras 3.1, 4.1, and 5.1.  
23 See for example the Experts' Responses to Panel question No. 174.  
24 Transcript of the expert hearing, third day, p.  57 (Mr  Cortese). See also the Tr anscript of the expert 
hearing, fourth day, p.  22 (Mr Cortese).  
25 Transcript of the expert hearing, third day, p.  58 (Mr  Cortese).  
26 Transcript of the expert hearing, second day, p.  62 (Mr  Griffin).  
27 Transcript of the expert hearing, fourth day, p.  20 (Mr  Cortese).  
28 Transcript of the expert hearing, fourth day, p.  11 (Mr  Cortese).  
29 Transcript of the expert hearing, fourth day, p.  32 (Mr  Cortese).  
30 Transcription of the expert hearing, third day, p.  36 (Mr  Cortese). See also the transcript of the 
expert h earing, second day, p.  61 (Mr  Griffin).  
31 Transcript of the expert hearing, fourth day, p.  51 (Mr  Cortese).  
32 Transcript of the expert hearing, third day, p.  14 (Mr  Griffin).  
33 Transcript of the expert hearing, second day, p.  61 (Mr  Griffin).  WT/DS524/R/Add.1  
 
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  surveillance would be required" in each case we can say that Costa  Rica has made a good faith effort 
to demonstrate the absence of the pest.34 
1.20.   In view of the f oregoing, Costa  Rica respectfully asks the Panel to declare inadmissible 
Mexico's request for the Panel to rule on the determination of absence of the pest, and the claims 
related thereto.  
4 MEXICO HAS FAILED TO SUBSTANTIATE ITS CLAIMS UNDER THE SPS AGREEM ENT 
4.1 Mexico has failed to substantiate its claims on harmonization  
1.21.   Mexico claims that Costa  Rica's phytosanitary requirements, the Manual and the PRAs should 
be based on ISPMs  Nos. 1, 2, 4, 6, 8, 11 and 32 . However, Mexico has failed to establish that any 
of those ISPMs is relevant for regulations that seek to achieve a l evel of protection against ASBVd . 
Even in the event that the ISPMs referred to by Mexico are regarded as relevant, Costa  Rica's 
measures are indeed based on them . Therefore the Panel should dismiss Mexico's claims in respect 
of harmonization.  
4.1.1 Article s 3.1 and 3.3 of the SPS Agreement  
1.22.   Article  3 of the SPS Agreement, on harmonization, provides as follows:  
1. To harmonize sanitary and phytosanitary measures on as wide a basis as 
possible, Members shall base their sanitary or phytosanitary measures on 
intern ational standards, guidelines or recommendations, where they exist , 
except as otherwise provided for in this Agreement, and in particular in 
paragraph  3. 
… 
3. Members may introduce or maintain sanitary or phytosanitary measures 
which result in a higher level of sanitary or phytosanitary protection than 
would be achieved by measures based on the relevant  international 
standards, guidelines or recommendations, if there is a scientific 
justification, or as a consequence of the level of sanitary or phytosanitary 
protection a Member determines to be appropriate in accordance with the 
relevant provisions of paragraphs 1 through 8 of Article  5. Notwithstanding 
the above, all measures which result in a level of sanitary or phytosanitary 
protection different from that w hich would be achieved by measures based 
on international standards, guidelines or recommendations shall not be 
inconsistent with any other provision of this Agreement. (emphasis added).  
1.23.   There is an obligation to "base" phytosanitary measures on internatio nal standards, as 
provided for in Article  3.1 of the SPS Agreement, to the extent that "relevant" international standards 
exist.35 Relevance must be established in the light of their scope or content, in particular whether 
this reflects a level of protection  in respect of the risk covered by the measure at issue . As Canada 
commented "[o]ne way to determine relevance is to compare the content  of the standard to the 
measure" at issue.36 
1.24.   This is confirmed by Article  3.3 of the SPS Agreement . Both the measure at issue and the 
international standard must reflect a certain level of protection if they are to be compared to 
determine whether th e measure goes beyond the recommendations of the standard, in contravention 
 
34 Transcript of the expert hearing, third day, p.  62 (Mr  Griffin).  
35 Despite the fact that the term "relevant" does not occur in Article  3.1 of the SPS Agreement, the 
immediate context provided by Article  3.3 of the SPS Agreement (to which Article  3.1 expressly refers)  
confirms that Article  3.1 applies with respect to "relevant" international standards. This is the established 
case-law when examining claims under Article  3.1 of the SPS Agreement. (Panel Reports, Australia – Salmon , 
para. 8.46; United States – Animals , para. 7.222; and Russia – Pigs, para.  7.262; and Appellate Body Reports, 
EC – Hormones , para.  171; and United States/Canada – Continued Suspension , para.  693). This is also how it 
is interpreted by the European Union which, in its third party communication, stated that "[w]hile the word 
'relevant' does not appear in Article  3.1 of the SPS  Agreement, a standard which is not 'relevant' could not very 
well be used in the sense that a measure is ' based on ' or 'conforms with ' such standard within th e meaning of 
Article  3.1 or 3.2 of the SPS  Agreement." (Third party written submission of the European Union, para.  10). 
36 Canada's Statement, para.  10 (emphasis added).  WT/DS524/R/Add.1  
 
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  of Article  3.3 of the SPS Agreement . Where an international standard does not reflect or recommend 
any type of action in respect of a specific risk, then by definition it is not po ssible to determine 
whether the measure at issue is "more exacting than the level of protection implied in the relevant 
standards, guidelines or […] recommendations".37 
4.1.2 Mexico has failed to provide evidence that the measures at issue are inconsistent  
with Articles  3.1 and 3.3 of the SPS Agreement  
1.25.   Mexico has failed to establish that any of the ISPMs  it has identified are "relevant" for the 
purposes of Articles  3.1 and 3.3 of the SPS Agreement .38 Mexico has not even tried to comply with 
the burden of proof incumbent on it in that regard and at no time has it explained, in its view, what 
level of prote ction those ISPMs may reflect.  
1.26.   The content of the vast majority of the ISPMs relates to procedure (e.g. guidance for 
developing risk analysis, guide for listing regulated pests, guide for conducting eradication 
programmes, guide for establishing pest free areas), and each country implements them in 
accordance with their capacity and ALOP . By contrast, ISPM  No. 28 for example does set out 
phytosanitary treatments (and therefore a degree of substantive content on possible protection 
methods) but only in respe ct of the specific pests listed in the annexes thereto ; ASBVd is not among 
them however.39 
1.27.   In the view of Costa  Rica it is clear that none of the ISPMs referred to by Mexico is "relevant" 
for the purposes of this case . At the outset Mexico identified the f ollowing ISPMs, the content of 
which is stated below:  
• ISPM No. 1 → Framework standard setting out the basic and operational phytosanitary principles  
for the protection of plants and the application of phytosanitary measures in international trade.40 
• ISPM No. 2 → Framework for pest risk analysis . As ISPM  No. 2 itself states, "[t]his standard is 
conceptual  and is not a detailed operational or methodolog ical guide for assessors".41 
• ISPM No. 4 → Standard setting out the requirements for the establishment of Pest Free Areas .42 
Costa Rica notes that Mexico gave up its claims concerning ISPM  No. 4 when it recognized that 
Costa  Rica is under no obligation to e stablish that it is an ASBVd pest free area.43 
• ISPM No. 6 → Standard setting out guidelines for surveillance in order to determine the presence 
or distribution of pests in an area.44 
• ISPM No. 8 → Standard concerning the determination of pest status in an a rea.45 
• ISPM No. 11 → Standard providing details for the conduct of pest risk analysis for quarantine 
pests.46 
• ISPM No. 32 → Standard providing criteria on how to categorize commodities according to their 
pest risk.47 
 
37 Appellate Body Report, EC – Hormones , para.  176. 
38 As Costa  Rica has previously emph asized, if there were a relevant international standard for 
managing the risk posed by ASBVd, Costa  Rica could have adopted measures in conformity with it, thereby 
benefitting from the presumption of compatibility with the SPS Agreement and the GATT under Article  3.2 of 
the SPS  Agreement. There is no such international standard however. The absence of a relevant international 
standard is precisely why there is a lack of harmonization in phytosanitary measures concerning ASBVd among 
the various pest -free avo cado-growing Members of the WTO such as Costa  Rica, Chile, Ecuador or 
New Zealand. (Costa  Rica's Response to Panel question  No. 103a, para.  6). 
39 The full list of the IPPC ISPMs can be consulted at:  
https://www.ippc.int/en/core -activities/standards -setting/ispms/  
40 ISPM No. 1, Exhibit  MEX-71. 
41 ISPM No. 2, Exhibit  MEX-72, p.  6. (emphasis added).  
42 ISPM No. 4, Exhibit  MEX-73. 
43 Mexico's specific comments on the Experts' Response s to Panel questions Nos.  164, 165 and 167 to 
the experts; and Mexico's response to Panel question No.  129 after the second substantive meeting.  
44 ISPM No. 6, Exhibit  MEX-75. 
45 ISPM No. 8, Exhibit  MEX-76. 
46 ISPM No. 11, Exhibit  MEX-77. 
47 ISPM No. 32, Exhibit  MEX-78. WT/DS524/R/Add.1  
 
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  1.28.   All the ISPMs referred to by Mexico are procedural and methodological in nature . They do not 
reflect any level of protection against the risk that Costa  Rica is s eeking to mitigate, namely the 
introduction and spread of ASBVd . Costa Rica shares Canada's view that "a standard that merely 
sets out procedures for assessing risks but do not themselves pre -determine the appropriate 
regulatory response to such risks, may  not be 'relevant'" .48 Costa Rica wonders what level of 
protection Mexico considers ISPMs  Nos. 1, 2, 6, 8, 11 and  32 to reflect, or how one could determine 
that a phytosanitary measure goes beyond the level of protection provided for in these procedural 
international standards, in contravention of Article  3.3 of the SPS Agreement .49 For instance, Mexico 
identified ISPM  No. 1 as the relevant international standard for Costa  Rica's phytosanitary 
requirements .50 Given that ISPM  No. 1 is a framework internation al standard, it is difficult to see 
how Mexico can expect the Panel to compare  Costa  Rica's specific phytosanitary requirements 
concerning ASBVd with the general principles provided for in that ISPM . In the context of Article  3.3 
of the SPS  Agreement it st ands to reason that it is impossible for Costa  Rica's phytosanitary 
requirements to go beyond the level of protection provided for in a standard that does not reflect 
any level of protection . 
1.29.   Costa  Rica does not contest the importance of the ISPMs and main tains that they must be 
taken account of by the WTO Members' phytosanitary authorities . In fact there are already other 
obligations under the SPS Agreement that expressly require Members to take account of 
international standards when performing risk asses sments (Article  5.1) or when regionalizing their 
measures (Article  6.1). The matter at issue here, however, is the relevance of the ISPMs for the 
purposes of the harmonization obligation provided for in Article  3.1 of the SPS Agreement . It is clear 
that no ne of the ISPMs is "relevant" to a specific phytosanitary measure seeking to achieve a certain 
level of protection against the ASBVd pest.  
1.30.   Even assuming that the ISPMs referred to by Mexico were "relevant" ( quod non ), two of the 
measures/instruments identified by Mexico do not result in any level of protection . Both the measure 
at issue and the international standard must reflect a certain level of protection if they are to be 
compared in order to determine, for example, whether t he measure goes beyond the 
recommendations of the standard, in contravention of Article  3.3 of the SPS Agreement . Neither the 
PRAs nor the Manual (which, as stated previously, do not in Costa  Rica's view even fall into the 
category of measures subject to the SPS Agreement) result in an effective level of protection, but 
instead are the initial steps taken by the SFE prior to adoption of the measure imposed on imports 
of fresh avocados . The PRAs and the Manual are therefore not measures subject t o Articles  3.1 and 
3.3 of the SPS Agreement.  
1.31.   In any event, the obligation provided for in Article 3.1 of the SPS Agreement is to "base" 
phytosanitary measures on relevant international standards . In order to be "based on" a standard 
that contains general p rinciples (such as ISPM  No. 1), the measure must be "founded" upon or 
"supported by" those general principles without contradicting them .51 Given that by definition 
principles have no specific interpretation, any measure adopted in good faith that follows those 
principles must be regarded as "based on" them .52 Costa Rica's phytosanitary requirements follow 
the general principles of ISPM  No. 1 without contradicting them and therefore are based on that 
ISPM. Similarly, in order to be "based on" a standard tha t contains methodology, techniques or 
procedures  (such as ISPMs  Nos. 2, 11 and 32) there must be no contradiction or fundamental 
deviation from those procedures . Nonetheless a procedural international standard describes steps 
to take rather than specific o utcomes . Therefore, where a methodology follows the steps provided 
 
48 Canada's Statement, para.  10. 
49 As the Panel in United States – Animals noted, Article  3.3 of the SPS Agreement "codifies Members' 
autonomous right to establish their own ALOP and to adopt SPS measures that achieve a higher level  of 
protection than would be achieved  by a measure based on" the relevant "international standards, guidelines or 
recommendations" (Panel Report, United States – Animals , para.  7.256 (referring to the Appellate  Body 
Report,  EC – Hormones , paras.  104 and 172) (emphasis added)). Therefore the factor that determines the 
relevance of the ISPMs under Article  3.3 of the SPS Agreement (as under Article  3.1) is their content.  An ISPM 
will be relevant in the context of the obligations under Articles  3.1 an d 3.3 when it reflects a level of protection 
that can be compared to the level of protection sought under the measure at issue. Given that ISPM  No. 1 does 
not reflect any level of protection, it is simply not possible to evaluate whether a measure achieves  a higher 
level of protection than that reflected in ISPM  No. 1. 
50 ISPM No. 1, Exhibit  MEX-71. 
51 Appellate Body Reports, EC – Hormones , para.  163; and EC – Sardines , paras.  242, 245 and 248.  
52 As Costa  Rica explained in its response to Panel question No.  107, the phytosanitary measures 
imposed on the import of avocados  should in any event be regarded as "based on" ISPM  No. 1, given that 
Costa  Rica complied with all the principles laid down therein.  WT/DS524/R/Add.1  
 
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  for in the international standard it must be regarded as "based on" it, regardless of the conclusions 
reached .53 The Manual and the PRAs follow the relevant procedural ISPMs (ISPMs  Nos. 2, 11 and  32) 
without contradicting them, and are therefore based on those ISPMs.  
1.32.   In conclusion, Mexico has failed to establish that the ISPMs referred to are "relevant" 
international standards for the purposes of the harmonization obligation . On those ground s the Panel 
should dismiss all the claims submitted by Mexico under Articles  3.1 and 3.3 of the SPS Agreement . 
Even in the event that the Panel takes the view that the ISPMs referred to by Mexico are "relevant", 
Mexico has failed to establish that the PRAs  and the Manual are phytosanitary measures subject to 
the SPS Agreement generally or to the harmonization obligation in particular . In any event, Mexico 
has failed to establish that the measures/instruments at issue are not "based on" those ISPMs, much 
less that they go beyond the level of protection that would be achieved by measures based on them . 
Therefore, the Panel should also dismiss all the claims submitted by Mexico under Articles  3.1 and 
3.3 of the SPS Agreement . 
4.2 Mexico has failed to substantia te its claims in respect of risk assessment  
1.33.   Mexico has failed to establish that Costa  Rica's risk assessment does not comply with the 
requirements provided for in the SPS Agreement . Specifically, Mexico has failed to establish that 
Costa  Rica's "risk assessment" is inconsistent with the definition set out in Annex A.4 of the 
SPS Agreement or does not comply with the elements provided for in Articles  5.1, 5.2 and 5.3 of the 
SPS Agreement . Mexico has also failed to establish that the phytosanitary measur e applied by 
Costa  Rica to imports of avocados is not "based on" the scientific and technical conclusions of the 
risk assessment . Therefore the Panel should dismiss Mexico's claims in respect of the risk 
assessment.  
4.2.1 Articles  2.2, 5.1, 5.2, and 5.3 of  the SPS Agreement  
1.34.   Costa  Rica recalls that the relevant part of Article  2.2 of the SPS Agreement  contains the 
following general obligation:  
Members shall ensure that any sanitary and phytosanitary measure … is 
based on scientific principles and is not main tained without sufficient 
scientific evidence, except as provided for in paragraph 7 of Article 5.  
1.35.   Meanwhile, Articles  5.1, 5.2 and 5.3 of the SPS Agreement  lay down the following specific 
obligations implementing the general obligation:  
1. Members shall ensu re 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.  
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 diseases or pests ; existence of p est- 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 sanita ry 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.  
 
53 As Costa  Rica also explained in its response to Panel que stion No. 107, the risk assessment  was 
performed following the Manual  that is "based on" ISPMs  Nos. 2, 11 and 32 referred to by Mexico. The Manual 
is founded on those ISPMs and there is no contradiction between the provisions of the standards and the 
conte nt of the Manual. Costa  Rica's risk assessment followed each and every one of the steps provided for in 
ISPM No. 11 without fundamentally departing from them in any way.  WT/DS524/R/Add.1  
 
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  1.36.   Article  5.1 of the SPS Agreement  requires Members to "base" their phytosanitary measures 
on a risk assessment ; in other words, there must be a " rational relationship  between the measure 
and the risk assessment" .54 Any "risk assessment" in a phytosanitary context must comply with the 
definition set out in Annex  A.4 of the SPS Agreement .55 Although the risk assessme nt must be 
"appropriate to the circumstances", Members are free to conduct it in the manner they deem most 
appropriate, without an obligation to follow any particular "methodology" .56 Additionally, the risk 
assessment must be performed " taking into account  risk assessment techniques developed by the 
relevant international organizations" . Such techniques should therefore be considered relevant 
without necessarily respecting "each and every aspect of them".57 
1.37.   Articles  5.2 and 5.3 of the SPS Agreement  do not contain stand -alone, independent 
obligations ; rather they are subject to Article  5.1 and inform the obligations laid down therein . 
Accordingly a panel should address Articles 5.1, 5.2 and 5.3 jointly . In particular, Article  5.2 requires, 
in the asses sment of risks, certain technical factors to be taken into account, whereas Article  5.3 
requires the three economic factors referred to therein to be taken into account in assessing the 
risk. Case-law has interpreted the expression "take into account" as m eaning that there is no 
implication of an obligation to be "in conformity with" or "based on"58, but as meaning "take into 
consideration", "notice" .59 In other words, the expression "take into account" does not imply "a 
particular course of action"60, nor does it "prescribe a specific result to be achieved".61 
1.38.   Finally, in respect of the applicable standard of review, the panel's task "is not to determine 
whether the risk assessment undertaken by a WTO Member is correct, but rather to determine 
whether t hat risk assessment is supported by coherent reasoning and respectable scientific evidence 
and is, in this sense, objectively justifiable".62 
4.2.2 Mexico has failed to establish that Costa  Rica's measures do not comply with 
Articles  2.2, 5.1, 5.2, and 5.3  of the SPS Agreement  
1.39.  Costa  Rica is in compliance with the obligations incumbent upon it under the SPS  Agreement 
and adopted measures with a technical and scientific basis that have also been implemented by 
other Members with much more sophisticated phytos anitary protection systems, such as 
New Zealand . Mexico itself imposes identical measures on plant products for consumption (such as 
potatoes) in respect of pests of concern to it.63 
1.40.  The relevant question is whether Mexico has established that Costa  Rica failed to perform an 
appropriate risk assessment under the definition set out in Annex  A.4 of the SPS Agreement, failed to 
take into account the relevant ISPMs and the factors listed i n Articles  5.2 and 5.3 of the 
SPS Agreement., and failed to base its measures on that assessment, within the meaning of Article  5.1 
of the SPS Agreement . As discussed below, Mexico has failed to establish any of those points.  
4.2.2. 1 Mexico has failed to e stablish that the "risk assessment" is inconsistent with 
Article  5.1 and Annex  A.4 of the SPS Agreement  
1.41.   As noted previously, a " risk assessment " in a phytosanitary context must be consistent with 
the definition set out in Annex  A.4 of the SPS Agreement, in  other words, it must be 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, and 
 
54 Appellate Body Report, EC – Hormones , para.  193. 
55 Appellate Body Reports, Australia  – Salmon , para.  121; and Japan – Apples , para.  196. 
56 Appellate Body Report, Japan – Apples , paras.  204 and 205.  
57 Panel Report, Japan – Apples , para.  8.241.  
58 Panel Report, Japan – Apples , para.  8.241.  
59 Panel Report, Russia – Pigs, para.  7.763 (referrin g to the Panel's interpretation in 
United  States  – Animals in the context of Article  5.4 of the SPS Agreement). Panel Report, EC – Approval 
and Marketing of Biotech Products , para.  7.1620.  
60 Panel Report, Russia – Pigs, para.  7.767.  
61 Panel Report, Russia – Pigs, para.  7.765 referring to the Panel Report in EC – Approval and Marketing 
of Biotech Products , para.  7.1620.  
62 Appellate Body Report, Canada – Continued Suspension , para.  590. 
63 Medidas fitosanitarias de México para papa, Exhib it CRI-32. WT/DS524/R/Add.1  
 
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  of the associated p otential biological and economic consequences" .64 That is the definition of risk 
assessment that applies pursuant to Article  5.1 of the SPS Agreement65 and, as we will show, Mexico 
has failed to establish how Costa  Rica's risk assessment is inconsistent wi th Annex  A.4 of the 
SPS Agreement.  
1.42.   Mexico has also failed to establish how Costa  Rica's risk assessment was not " appropriate to 
the circumstances " within the meaning of Article  5.1 of the SPS Agreement . Although the 
SPS Agreement does not explain the meani ng of that expression, it has been interpreted in case -law 
as referring to an assessment of risk "on a case by case basis, in terms of product, origin and 
destination, in particular country -specific situations" .66 Thus for example relevant circumstances 
have included the fact that the importing country is free of the pest subject to the analysis or that 
its climatic conditions make it a potentially favourable environment for the pest to spread .67 In 
accordance with the case -law, Costa  Rica p erformed a specific risk assessment for the ASBVd pest 
and the pathway of fresh avocados for consumption, noting "in particular the country -specific 
situation" such as absence of the viroid from Costa  Rica and the country's favourable climatic 
conditions . Contrary to the arguments made by Mexico, Costa  Rica is not of the view that in order 
to perform a risk assessment "appropriate to the circumstances" it was necessary to take account 
of Mexico's position as the world's leading exporter of avocados .68 One factor that Costa  Rica did 
indeed take into account was that Mexico has historically been the leading exporter of avocados to 
Costa  Rica, exporting around 50  million avocados annually . Accordingly,  since 2013 when Costa  Rica 
learned of the presence of ASBVd  in Mexico, all necessary courses of action have been taken to 
ensure that appropriate risk mitigation measures consistent with all the obligations incumbent upon 
Costa  Rica under the SPS Agreement have been maintained, including the obligation not to 
discriminate between products of different origins that pose the same phytosanitary risk .69 None of 
the arguments made by Mexico have in any way established that Costa  Rica's risk assessment was 
not "appropriate to the circumstances".  
1.43.   Finally, Mexico has faile d to establish how Costa  Rica's risk assessment failed to " take into 
account " the risk assessment techniques drawn up by the relevant international organizations (in 
this case the ISPMs under the International Plant Protection Convention (IPPC)) and the te chnical 
and economic factors listed in Articles  5.2 and 5.3 of the SPS Agreement respectively . With respect 
to phytosanitary measures, the risk analysis techniques for quarantine pests are primarily set out in 
ISPM No. 11. Thus, while it is not necessary t o comply with each and every one of the aspects 
included in ISPM  No. 1170 nor to achieve a specific result"71, the risk analyst should "take into 
consideration" or "notice"72 the provisions of that ISPM . Costa Rica notes that the technical and 
economic fac tors set out in ISPM  No. 11 are the same as those listed in Articles  5.2 and 5.3 of the 
SPS Agreement:  
• The seven technical factors  contained in Article  5.2 of the SPS Agreement are reflected in 
ISPM No. 11 as follows : (i) "technical justification"73 (available scientific evidence) ; (ii) 
"practices employed during the cultivation/production of the host crops"74 (processes and 
production methods) ; (iii) "inspection or testing for freedom from a pest"75 (inspection, 
sampling and testing methods) ; (iv) "prevalence of the pest in the source area"76 (prevalence 
 
64 The second clause of Annex  A.4 to the SPS Agreement addresses risk assessments evaluating 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". As such, the second clause does not 
define the type of risk assessment relevant to this dispute concerning the ASBVd pest, which affects avocado 
cultivars.  
65 Appellate Body Report, Australia – Salmon , para.  121; and Japan – Apples , para.  196. 
66 Panel Report, Japan – Apples , para.  8.239.  
67 Panel Report, Japan – Apples , para.  8.240.  
68 Mexico's first written submission, para.  405. 
69 Costa  Rica's first written submission, paras.  5.155 -5.168.  
70 Panel Report, Japan – Apples , para.  7.761.  
71 Panel Report, Russia – Pigs, para.  7.765 (referring to Panel Report, EC – Approval and Marketing of 
Biotech Products , para.  7.1620).  
72 Panel Report, Russia – Pigs, para.  7.763 (referring to the Panel's interpretation in 
United  States  – Animals in the context of Article  5.4 of the SPS Agreement). Panel Report, EC – Approval 
and Marketing of Biotech Products , para.  7.1620.  
73 ISPM No. 11, Exhibit  MEX-77, p.  10. 
74 ISPM No. 11, Exhibit  MEX-77, p.  16. 
75 ISPM No. 11, Exhibit  MEX-77, p.  24. 
76 ISPM No. 11, Exhibit  MEX-77, p.  14. WT/DS524/R/Add.1  
 
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  of specific diseases or pests) ; (v) "pest -free area"77 (existence of pest - or disease -free 
areas) ; (vi) "suitability of environment"78 (relevant eco logical and environmental 
conditions) ; and (vii)  quarantine -related trade restrictions"79 (quarantine or other 
treatment).  
• The three economic factors  provided for in Article  5.3 of the SPS Agreement are also 
reflected in ISPM  No. 11 as follows : (i) "effect  of pest -induced changes to producer profits"80 
(potential damage in terms of loss of production or sales) ; (ii) "feasibility and cost of 
eradication or containment"81 (the costs of control or eradication in the territory of the 
importing Member) ; and (iii ) "control measures […], their efficacy and cost"82 (relative 
cost-effectiveness of alternative approaches to limiting risks).  
1.44.   Consequently, when a Member "takes into account" the risk analysis techniques contained in 
ISPM No. 11, it also "takes into accou nt" the technical and economic factors listed in Articles  5.2 and 
5.3 of the SPS Agreement . Costa Rica is fully aware of the importance of the IPPC guidelines and 
the procedural guidance set out in the ISPMs . Accordingly, Costa  Rica even went beyond the 
obligation contained in Article  5.1 of the SPS Agreement to "take into account" the ISPMs . Costa Rica 
drew up a Manual for conducting pest risk analysis that transfers the recommendations in 
ISPM No. 11 into a domestic instrument that has binding effect on t he SFE . The Manual, which was 
adopted voluntarily by Costa  Rica rather than in compliance with any obligation under the 
SPS Agreement, and which is periodically reviewed to incorporate improvements, helps to increase 
transparency over the manner in which t he SFE pest risk analysis is conducted and specifically 
ensures that risk analyses take into consideration the relevant factors in ISPM  No. 11. In view of 
this, Costa  Rica is hugely surprised that Mexico is arguing that Costa  Rica did not take the relevant  
international standards into account when performing the risk analysis . However it comes as no 
surprise that Mexico has been unable in any way to demonstrate that the ISPMs and the relevant 
factors were not taken into account . Indeed, the experts in this dispute have confirmed that both 
Costa  Rica's Manual and its PRA comply fu lly with the spirit and the factors set out in ISPM  No. 11.83 
1.45.   In any event, the best way of examining whether the Costa  Rican phytosanitary authority 
"took into account" the international standards and the technical and economic factors in Articles  5.2 
and 5.3 of the SPS Agreement is by addressing those elements in the risk assessment analysis within 
the framework of Article  5.1 of the SPS Agreement .84 When the Panel examines whether Costa  Rica 
performed a risk assessment consistent with Annex A.4 and Artic le 5.1 of the SPS Agreement, it 
may also, as part of the same analysis, examine whether Costa  Rica took into account ISPM  No. 11 
and the factors referred to in Articles  5.2 and 5.3 of the SPS Agreement.  
1.46.    As has been noted, the definition of "risk assessmen t" contained in Annex  A.4 of the 
SPS Agreement contains three elements:  
(i) evaluation of the likelihood of entry, establishment or spread of a pest within the territory 
of an importing Member  
(ii) according to the sanitary or phytosanitary measures which might be applied,  
(iii) and of the associated potential biological and economic consequences.  
1.47.   Costa  Rica will now explain how it addressed each of those three elements in its risk 
assessment, and how it "took into account" ISPM  No. 11 – as prescribed in Article  5.1 of th e 
SPS Agreement – and the factors set out in Articles  5.2 and 5.3 of the SPS Agreement.  
 
77 ISPM No. 11, Exhibit  MEX-77, p.  25. 
78 ISPM No. 11, Exhibit  MEX-77, p.  16. 
79 ISPM No. 11, Exhibit  MEX-77, p.  20. 
80 ISPM No. 11, Exhibit  MEX-77, p.  20. 
81 ISPM No. 11, Exhibit  MEX-77, p.  19. 
82 ISPM No. 11, Exhibit  MEX-77, p.  11. 
83 See, e.g., Experts' Responses to Panel question No.  137. 
84 Panel Report, Japan – Apples , para.  8.232.  WT/DS524/R/Add.1  
 
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  (i) Evaluation of the likelihood of entry, establishment or spread of ASBVd  
1.48.   By way of a preliminary remark, Costa  Rica recalls that Mexico's first argument concerning 
Costa  Rica's risk assessment (subsequently repeated in various claims85) was that in order to 
evaluate the likelihood of entry, Costa  Rica first should have systematically demonstrated, justifying 
its reasoning, that the pathogen and the disease  it causes were absent from its territory, and 
confirmed that absence in the form of a statement declaring the territory of Costa  Rica a PFA [pest 
free area]" .86 Costa Rica notes that Mexico is asserting, as a fact, that ASBVd is present in Costa  Rica 
and thus "is responsible for providing proof thereof" .87 Piece by piece, Costa  Rica has rebutted the 
"evidence" submitted by Mexico to that end, making it clear that Mexico has no evidence whatever 
that the viroid is present in Costa  Rica.88 Instead, in fact, the many samples and diagnostic tests 
provided by Costa  Rica in these proceedings are hard evidence that the virus is absent from the 
country . Moreover throughout these proceedings, Costa  Rica has responded to countless Panel 
questions on the determi nation of Costa  Rica's phytosanitary status as ASBVd -"absent", explaining 
in detail pest surveillance and control procedures.89 
1.49.   Rather, Mexico's continued insistence on the alleged presence of ASBVd in Costa  Rica indicates 
that the viroid's presence is in fact the only aspect that could call Costa  Rica's methods into question 
and imbue Mexico's case with an air of reasonableness . However, Mexico is aware that if the pest is 
absent from Costa  Rica, which it is, the phytosanitary measures in place must have a  technical and 
scientific basis, be legitimate and constitute entirely standard requirements in the area of 
international trade in plant products.  
1.50.   Mexico has also failed to establish that Costa  Rica did not evaluate the likelihood of the entry 
of ASBVd int o its territory by taking into consideration the factors listed in the Manual, which are the 
same as those in ISPM  No. 11. In particular when Costa  Rica considered : (i) the pathway for entry 
of the pest90; (ii) the probability of the pest being associated with the pathway at origin91; (iii) the 
probability of survival during transport or storage92; (iv) the probability of pest surviving existing 
pest management procedures93; and (v)  the probability of transfer to a suitable host94, all of which 
are containe d in ISPM  No. 11. 
1.51.  In particular, Costa  Rica took into account the prevalence of the pest  in the source area, which 
is one of the factors expressly listed in Article  5.2 of the SPS Agreement . As Costa  Rica explained to 
the Panel95, information in that regard was requested directly from Mexico .96 In view of the fact that 
no reply was ever forthcoming, Costa  Rica referred to the available scientific evidence  in the literature 
which, again, is a factor listed in Article  5.2 of the SPS Agreement . The study by Vallejo  Pérez 
et al. (2017) states that in Michoacán – the main avocado -producing area in Mexico, where "86.3 % of 
avocados are produced in Mexico"97 – the incidence of ASBVd is 14 % and the rate of contagion is 
 
85 See the claims related to alleged discrimination (Articles  2.3 and  5.5 of the SPS Agreement), and the 
alleged lack of regionalization in Costa  Rica (Article  6.1 of the SPS Agreement).  
86 Mexico's first written submission, para.  280. As Costa  Rica stated in its first written submission, the 
presence or absence of a pest in the territory of an importing Member is not determinative of the probability of  
entry of a pest. Mexico also confuses determination of pest status  in an area (ISPMs  Nos. 6 and  8) with the 
establishment of pest free areas  (ISPM  No. 4), which are very distinct concepts that apply in very different 
contexts. It is perhaps after Mexico r ecognized its confusion that it decided to abandon its claims in respect of 
ISPM No. 4. 
87 Appellate Body Report, United  States – Wool Shirts and Blouses , p. 14. 
88 Costa  Rica's reply to Panel question No.  26 after the first substantive meeting.  
89 See for ex ample Costa  Rica's first written submission, paras.  3.18-3.27; Report of Costa  Rica in 
response to the Panel's request for information and supporting documentation in dispute DS524 before 
the WTO, 14  September 2020.  
90 Costa  Rica identified two entry pathwa ys for ASBVd: fresh avocados  for consumption and avocado 
plants  for planting. These are the only two avocado products that Costa  Rica imports from other countries. The 
title of the General PRA for ASBVd includes both pathways (fruits and plants). Where the  ARP-002-2017 is 
concerned, only the fresh avocados pathway is considered, as can also be discerned from the title of the PRA, 
because avocado fruits are the only avocado product that Costa  Rica imports from Mexico.  
91 ARP-002-2017, Exhibit  MEX-84, p.  34; ISPM No. 11, Exhibit  MEX-77, p.  14. 
92 ARP-002-2017, Exhibit  MEX-84, p.  35; ISPM  No. 11, Exhibit  MEX-77, p.  14. 
93 ARP-002-2017, Exhibit  MEX-84, p.  36; ISPM  No. 11, Exhibit  MEX-77, p.  14. 
94 ARP-002-2017, Exhibit  MEX-84, p.  36; ISPM  No. 11, Exhibit  MEX-77, p.  14. 
95 See for example, Costa  Rica's reply to Panel question No.  57. 
96 Solicitud de información a México, Exhibit  CRI-42. 
97 El aguacate en México, Exhibit  MEX-40, p.  1. WT/DS524/R/Add.1  
 
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  4.75% annually98 Costa  Rica also expressly asked Mexico whether the country has any [ASBVd] 
pest-free areas , which is another factor listed in Article  5.2 of the SPS  Agreement . Mexico also failed 
to respond to this request and thus far has not stated that there are any areas of Mexico that are free  
of ASBVd . Indeed, it has acknowledged that "no study, whether official or otherwise, has been 
conducted in Mexico to determine the prevalence of ASBVd" .99 Costa Rica also took into account the 
possible existence of viroid control or monitoring programmes in Mexico . However, as Mexico itself 
acknowledges, the country has no specific domestic regulations to control ASBVd that would reduce 
its incidence in the field .100 Therefore Costa  Rica concluded that ASBVd is present in Mexico and is not 
subject to any of ficial control mechanism to mitigate its spread ; on that basis it is reasonable to assume 
that the prevalence of the pest is likely to increase over time.  
1.52.  Costa  Rica also took into account the specific characteristics of ASBVd and whether it can be 
managed  in some way during the avocado production process  or cultivation, another factor listed in 
Article  5.2 of the SPS Agreement . It was noted that the scientific literature (Ploetz et al. (2011)) 
indicates that ASBVd  is distributed systemically throughout the avocado plant, meaning that the viroid 
is present in all its tissues (seeds, leaves, branches, fruits and roots)101 and remains active as long as 
the plant tissues remain in good condition . Accordingly, the condit ions in which avocados are 
transported or stored, and temperature variation, have no effect whatever on pest survival . This is 
also why there is no cure for ASBVd that can be applied during the production process ; the only option 
is to destroy infected tre es (Coit (1928),Hadidi et al. (2003), Suarez et al. (2005)) .102 Similarly, in 
relation to one of the other factors listed in Article  5.2 of the SPS Agreement, namely the inspection, 
sampling and testing methods , Costa  Rica noted that although Mexico perform s a post -harvest visual 
inspection at time of packaging and discards fruits with ASBVd symptoms, this does not resolve the 
issue of asymptomatic  infected fruits that pass quality controls and are exported to Costa  Rica. Indeed, 
given that not all avocados infected with ASBVd express symptoms (Mohamed and Thomas 
(1980),Desjardins (1987), Schnell et al. (2001))103, the only way to be certain whether a fruit is 
infected is by a laboratory test, preferably using the RT -PCR technique for diagnosis104 (Schnell et al. 
(1997)105). Costa Rica therefore found that there are no crop treatments or post -harvest inspections 
that can be effective in Mexico against the risk posed by asymptomatic fruits, which are the product 
of concern to Costa  Rica. 
1.53.  Costa  Rica a lso noted that the risk of entry of ASBVd arises because of the waste from imported 
avocados, especially the seeds .106 The scientific literature agrees that seed -borne viroid transmission 
is very high for seeds obtained from asymptomatic fruits, at close to  100% (Vargas  et al. (1991), 
Hadidi et al. (2003), Ochoa  Ascencio (2013)) .107 Thus germination of a seed from an asymptomatic 
avocado fruit would introduce the pest into Costa  Rica. Therefore analysis was conducted on seed 
viability after commercial procedu res (e.g. refrigeration) were applied to consignments of avocados . 
It was noted that much lower temperatures than those reached in commercial consignments were 
required in order to reduce seed viability (Wutscher et al. (1969)) .108 Account was also taken of the 
scientific evidence on germination of avocado seeds of the Lula variety, which was still 100 % after two 
months' storage at 4.4°C in closed polyethylene bags (Spalding  et al. (1976)) .109 Costa Rica found 
therefore that the seed of asymptomatic i nfected avocados is viable for germination after importation, 
 
98 ARP-002-2017, Exhibit  MEX-84, p.  34; Vallejo  Pérez et al. (2017), Exhibit  MEX-47. 
99 Mexico's first written submission, para.  57. 
100 ARP-002-2017. Exhibit  MEX-84, p.  35; Mexico's first written submission, para.  598. The absence of 
any specific regulations governing ASBVd is also confirmed in the SINAVEF Report 2010, Exhibi t CRI-13. 
101 Ploetz et al. (2011), Exhibit  MEX-56, p.  5; ARP -002-2017, Exhibit  MEX-84, p.  34. 
102 ARP-002-2017, Exhibit  MEX-84, p.  35; Coit (1928), Exhibit  CRI-9; Hadidi et al. (2003), 
Exhibit  CRI-121; and Suarez et al. (2005), Exhibit  CRI-136. 
103 ARP-002-2017, Exhibit  MEX-84, pp.  13 and 37; Mohamed and Thomas (1980) Exhibit  CRI-125; 
Desjardins (1987), Exhibit  CRI-101; and Schnell et al. (2001), Exhibit  CRI-131. 
104 Transcript of the expert hearing, fourth day, p.  43 (Mr  Pliego  Alfaro).  
105 ARP-002-2017, Exhibit  MEX-84, p.  62; Schnell et al. (1997), Exhibit  MEX-68. 
106 ARP-002-2017, Exhibit  MEX-84, p.  38. 
107 ARP-002-2017, Exhibit  MEX-84; Vargas et al. (1991), Exhibit  CRI-137; Hadidi et al. (2003), 
Exhibit  CRI-121; and Ochoa  Ascencio (2013), Exhibit  CRI-128. 
108 ARP-002-2017, Exhibit  MEX-84, p.  36; Wutscher et al. (1969), Exhibit  MEX-132. Temperatures of 
between -6.7°C and -7.8°C are required in order to reduce seed viability by 50%, and a temperature of -8.9°C 
to reduce germination by 100%. Temperatures greater than -5.6°C have no impact on germination and the 
average temperature of a commercial consignment is between 5°C and 7°C.  
109 ARP-002-2017, Exhibit  MEX-84, p.  36; Spalding et al. (1976), Exhibit  MEX-133. WT/DS524/R/Add.1  
 
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  and is extremely likely to transmit the viroid . The experts explicitly confirmed the risk of introducing 
ASBVd through seed from avocados for consumption.110 
1.54.   Mexico has also failed to establish t hat Costa  Rica did not evaluate the likelihood of 
establishment  of ASBVd in Costa  Rica. The facts prove that Costa  Rica did precisely that . As provided 
in the Manual, which sets out several "examples of factors" stated in ISPM  No. 11111, Costa  Rica 
evaluate d: (i) the  availability of suitable hosts, alternate hosts and vectors in the PRA area ; (ii) the 
pest's environmental suitability ; (iii) cultural practices and control measures ; and (iv)  other 
characteristics of the pest affecting the probability of establ ishment .112 It was noted that germination 
of seed from asymptomatic infected fruit produced avocado trees that were also systemically infected 
with the pest . Accordingly, Costa  Rica took into account the environmental conditions  in its territory, 
which is a factor listed in Article  5.2 of the SPS Agreement . The risk assessment noted that wet and 
very wet  tropical premontane forest life zones together with tropical dry forest are predominant in 
Costa  Rica (Holdridge 1987) .113 As Mexico acknowledges, for recalcitrant seed such as that of the 
avocado, "moisture is the most critical factor, in determining the viability and longevity of the seeds" 
because they are "sensitive to desiccation" .114 In point of fact, Costa  Rica's wet, tropica l climate 
prevents desiccation of avocado seed and for most of the year provides conditions that are suitable 
for the germination of avocado seed .115 It is for that very reason that Costa  Rica has endemic 
avocado varieties (Galindo -Tovar et al. (2008)) .116 Thus Costa  Rica found that its climatic conditions 
are favourable to germination of avocado seed . The experts also confirmed that this was the case.117 
1.55.   Seed germination can occur naturally or be forced . Natural germination of seeds in open 
ground or small ba ckyards is normal in Costa  Rica.118 If the seed falls on suitable land and the 
required humidity and temperature conditions are met, the seed will germinate spontaneously .119 
The experts also confirmed this point .120 Indeed, in Costa  Rica, "it is very common for a few avocado 
trees to seed themselves without producers sowing them as part of a plan".121 
1.56.   But the factor that most increases the likelihood of ASBVd becoming established is the 
widespread cultural practice in Costa  Rica of planting the seed of avocados intended for consumption 
(diversion from intended use) .122 As Costa  Rica has explained, and the experts have unanimously 
confirmed123, diversion from intended use is a practice that occurs in most of the world – including 
in Mexico .124 However, it is  a difficult practice to document because it is seldom reported .125 
Therefore estimating the degree of diversion from intended use in a particular area is a complex 
task.126 Nevertheless, diversion from intended use in Costa  Rica was noted by CONSULSANTOS in 
2017127, and in the 2019 paper on "Prácticas culturales de siembra y manejo de semillas de aguacate 
en Costa Rica" .128 It was found that it is normal for producers, especiall y at less technically 
 
110 Transcript of the expert hearing, first day, pp.  14 and 38 (Mr  Pliego  Alfaro); and second day, p.  36 
(Mr Griffin).  
111 ISPM No. 11, Exhibit  MEX-77, numbered paragraph  2.2.2.  
112 ARP-002-2017, Exhibit  MEX-84, pp.  38 and 39.  
113 ARP-002-2017, Exhibit  MEX-84, p.  7; Holdridge (1987), Exhibit  CRI-122. 
114 Mexico's first  written submission, para.  24. 
115 As explained in Costa  Rica's first written submission, the edapho -climatic requirements of Hass 
avocado are an altitude of 1  000-2 000 msnm, temperature of 16 -18°C, and annual precipitation of 1  200 mm 
(Zona de los Santos ( 2007), Exhibit  MEX-97, p.  8.). In Zona de los Santos the altitude is 1  200-1 900 msnm, 
the average annual temperature is 19°C and average annual precipitation 2  400 mm (CONSULSANTOS  2010, 
Exhibit  MEX-119, p.  15). 
116 ARP-002-2017, Exhibit  MEX-84, p.  7; Galin do-Tovar et al. (2008), Exhibit  MEX-22. See also 
Aguacate criollo en Costa  Rica, Exhibit  CRI-58. 
117 Transcript of the expert hearing, first day, pp.  13, 21, and 46 -47 (Mr  Pliego  Alfaro).  
118 ARP-002-2017, Exhibit  MEX-84, p.7.  
119 OR-HN-049-2019, Exhibit  CRI-69; OR -BR-FUN-0014-2019, Exhibit  CRI-70; and OR -CS-0003-2019, 
Exhibit  CRI-71. 
120 Transcript of the expert hearing, first day, p.  64 (Mr  Pliego Alfaro).  
121 Estudio sobre manejo de semillas en Costa Rica, Exhibit  CRI-44, p.  14. 
122 CONSULSANTOS  2010,  Exhibit  MEX-119. pp.  24 and  26; and CONSULSANTOS (2017), 
Exhibit  MEX-118. 
123 See for example Costa  Rica's response to Panel question No.  14; and Transcript of the expert 
hearing, first day, pp.  28-29 (Mr  Griffin).  
124 Extracto ARP de México para papa, Exhibi t CRI-31, p.  9. 
125 Secretaría de la CIPF, "Diversion from intended use" (2016), Exhibit  MEX-124, p.  6. 
126 ARP-002-2017, Exhibit  MEX-84, p.  8. 
127 ARP-002-2017, Exhibit  MEX-84, pp.  6-7; CONSULSANTOS (2017), Exhibit  MEX-118. 
128 Estudio sobre manejo de semillas en  Costa Rica, Exhibit  CRI-44. WT/DS524/R/Add.1  
 
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  sophisticated holdings,  not to use nurseries to procure certified propagation material129, but instead 
to use seeds whose origin is not always known .130 Additionally, the practice of using Hass rootstock 
in commercial crops and nurserie s increases the probability of diversion in the use of seed from 
consumed Hass avocados . Rootstock is selected by its performance in the growing area (Bender 
et al. (2012)) .131 In Costa  Rica, the performance of Hass rootstock is "one of the best for the loc al 
soil"132 and Hass scions on Hass are regarded as a good combination because of their hardiness and 
the quality of the fruit produced .133 Finally, although diversion from intended use is difficult to verify 
in a laboratory, there is no question that it constitutes "risk in human societies as they actually 
exist"134 as in the Costa  Rican example . Costa Rica also took account of diversion from intended use 
as a risk factor that increases the probability of establishment of the ASBVd pest.  
1.57.   Paradoxically, Mex ico itself is of the view that diversion from intended use is a risk factor that 
should be taken into account in its own risk assessments . As Costa  Rica has noted, Mexico's PRA for 
potato imports expressly states that "in Mexico, as in almost all countries , it is common for potato 
to be diverted from its intended use as a consumable to that of a seed, given the farming culture 
and socioeconomic circumstances of a large proportion of farmers (CONPAPA, (2007))" .135 The PRA 
adds that the existence of this diver sion from intended use "shows that the import of potato tubers 
are highly likely to be the means of introduction and spread of quarantine pests" .136 As a result, 
Mexico imposes phytosanitary measures on the import of fresh potato from the United  States and 
Canada comprising a certificate that the product is free of certain pests, as well as sampling and 
laboratory tests upon arrival .137 These are the same measures as those contested in the present 
dispute.  
1.58.   Finally, in respect of the likelihood of propagation  or spread of ASBVd once the pest has been 
introduced into Costa  Rica, Mexico has not submitted any proof at all that Costa  Rica has not 
conducted an evaluation of that eventuality . In point of fact, in conformity with the scientific 
literature, Costa  Rica found that the chief form of viroid spread is by graft and that mechanical 
transmission is also possible:  
The main method of infection is transmission by graft during propagation, 
or implanted tissues and the introduction of seedlings infected with 
ASBVd -seedlings that have budded from infected rootstock . Outbreaks of 
ASBVd arise when seedlings used as rootstock are derived from seeds 
obtained from symptomless fruits, which have very high rates of 
seed-borne transmission (95 %) (Hadidi et al., (2003)) . Mechanical 
transmission by slash inoculation and/or leaf rub with extracts from 
infected tissues is possible, although less efficient than transmission by 
rootstock (Hadidi et al. , 2003) . Desjardins et al.  (1979) demonstrated a 
pollen transmission rate of between 1 and 4 %. Additionally Whitsell (1952) 
demonstrated natural root graftage as a means of transmission.138 
1.59.   As previously noted, both the procurement of Hass rootstock from seed, and the use of Hass 
scions on  Hass rootstock are farming practices that are widely used in Costa  Rica.139 If a farm 
contains Hass trees infected with ASBVd – either because they grew naturally or were obtained after 
planting uncertified seed of unknown origin – the scions and th e use of pruning tools could spread 
 
129 CONSULSANTOS  2010, Exhibit  MEX-119; Estudio sobre manejo de semillas en Costa  Rica, 
Exhibit  CRI-44, p.  12. 
130 Manual de Viveros, Exhibit  CRI-43, p.  20. 
131 Bender et al. (2012), Exhibit  CRI-112. 
132 Zona de los Santos (2007), Exhi bit MEX-97, p.  7. 
133 Estudio sobre manejo de semillas en Costa Rica, Exhibit  CRI-44, p.  14. 
134 Appellate Body Report, India – Agricultural Products , para.  5.19. The Appellate Body has recognized 
that there are factors that "are not susceptible of quantitative analysis by the empirical or experimental 
laboratory methods commonly associated with the physical sciences". (Appellate Body Report, 
Australia  – Apples , para.  207).  
135 Extracto ARP de México para papa, Exhibit  CRI-31, p.  9. 
136 Extracto ARP de México para papa, Exhibit  CRI-31, p.  9. 
137 Medidas fitosanitarias de México para papa, Exhibit  CRI-32. 
138 ARP-002-2017, Exhibit  MEX-84, p.  62; Hadidi et al. (2003), Exhibit  CRI-121; and Suarez 
et al. (1980), Exhibit  CRI-116; Whitsell (1952), Exhibit  MEX-42. 
139 Estudio sobre manejo de semillas en Costa Rica, Exhibit  CRI-44, p.  14; CONSULSANTOS  2010, 
Exhibit  MEX-119; Estudio sobre manejo de semillas en  Costa Rica, Exhibit  CRI-44, p.  12; and Manual de 
Viveros, Exhibit  CRI-43, p.  20. WT/DS524/R/Add.1  
 
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  the viroid very efficiently, as shown by the scientific evidence and confirmed by the experts .140 A 
single productive Hass tree infected with ASBVd can be the source of many cuttings for grafting and 
consequently can infe ct many seedlings . Thus spread of the viroid after its introduction into an area 
is very straightforward . Costa Rica therefore found that there is a high probability that ASBVd will 
spread if the pest is introduced into the country.  
1.60.   In conclusion, the fact s show that Costa  Rica evaluated the likelihood of the entry, 
establishment and propagation of ASBVd within its territory, in conformity with the first element of 
the definition of "risk assessment" contained in Annex  A.4 of the SPS Agreement . Costa Rica 
supported its risk assessment with "coherent reasoning and respectable scientific evidence"141, and 
took into account the risk analysis techniques set out in ISPM  No. 11 and the relevant technical 
factors listed in Article  5.2 of the SPS Agreement . The risk that ASBVd may be introduced and spread 
in Costa  Rica through symptomless infected avocados exists, and is genuine, as the experts 
appointed by the Panel confirmed .142 Quite apart from the fact that Mexico does not share the risk 
analyst's qualitative ratings it cannot deny that existence of the risk "find[s] sufficient support in the 
[available] scientific evidence".143 
1.61.  To conclude, Costa  Rica notes that the scientific literature dating from after Costa  Rica's risk 
assessment confirms the si gnificance of ASBVd and the risk posed by avocados . The paper by Everett 
et al. (2018) on New  Zealand states that "ASBVd infects avocados in a number of countries with 
climates similar to New  Zealand so there is a high risk of it establishing in New  Zealan d. Of particular 
concern is its possible importation in fruit from symptomless plants or seeds ".144 Additionally, the paper 
by Saucedo  Carabez et al. (2019) states that strategies to manage ASBVd need to be implemented, 
"[t]he use of ASBVd -free avocado plan ts from certified nurseries needs to be encouraged, and 
regulatory actions must regulate the movement of [] avocado material to avoid ASBVd spread."145 
(ii) According to the phytosanitary measures which might be applied  
1.62.  Mexico has also failed to establish in what respect Costa  Rica failed to comply with the second 
element of the definitions of "risk assessment" provided for in Annex  A.4 of the SPS Agreement . In 
the view of Costa  Rica it is unlikely that Mexico can demonstrate a failure in that reg ard since it is clear 
that Costa  Rica considered "the measures which might be applied, not merely [] the measures that 
[were] being  applied" at the time the risk assessment was conducted .146 Costa Rica recalls that the 
measures recommended in the PRA147 are distinct from the suspension of phytosanitary authorizations 
that applied until 2018 and which is not the object of this dispute . At no time did the risk assessment 
attempt to justify ex post  the provisional suspension of the importation of fresh avocados.  
1.63.   It its risk analysis, Costa  Rica took into account the relative cost -effectiveness of alternative 
approaches to limiting risks, which is one of the three economic factors listed in Article  5.3 of the 
SPS Agreement . Indeed the risk assessment considered the method of "inspection conducted at 
points of entry" .148 Nonetheless, while this option – submitted by Mexico as an alternative in its 
claim under Article  5.6 of the SPS Agreement – carries a  lesser cost than the measure finally 
recommended, it is wholly ineffective in containing the risk of concern to Costa  Rica, namely the 
introduction of ASBVd through symptomless  infected avocados . As the experts confirmed149, visual 
inspection alone is inef fective in detecting the viroid in fruits that do not express visual symptoms 
of the pest . Accordingly the most cost -effective measures were indeed recommended, namely 
certification of absence of the viroid  (not of its symptoms), in the consignment or the place of 
production in the exporting country, and verification by sampling and laboratory tests at the point 
of entry.  
 
140 See for example, Experts' Responses to Panel question No.  62. 
141 Appellate Body Report, Canada – Continued Suspension , para.  590. 
142 See for example, Experts' Responses to Pa nel question No.  62. 
143 Appellate Body Report, Canada – Continued Suspension , para.  591. 
144 Everett et al. (2018), Exhibit  CRI-27, p.  33. (emphasis added).  
145 Saucedo Carabez et al. (2019), Exhibit  MEX-175, p.  9. 
146 Appellate Body Report, Japan – Apples , para.  208, citing the Panel report,  Japan – Apples , 
para. 8.283. (emphasis in the original).  
147 ARP-002-2017, Exhibit  MEX-84, pp.  42-43. 
148 ARP-002-2017, Exhibit  MEX-84, p.  42. 
149 See for example Experts' Responses to Panel questions Nos. 95, 116 -117 and Transcrip t of the 
expert hearing, second day, p.  47 (Mr  Griffin).  WT/DS524/R/Add.1  
 
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  1.64.   Moreover, taking account of the shared responsibility between the exporting country and the 
importing country where there is a risk of di version from intended use, the risk assessment 
recommended the adoption of internal measures that Costa  Rica has made every effort to 
implement . Thus "active surveillance in avocado -producing areas" has been maintained by verifying 
the absence of ASBVd thr ough extensive sampling – most recently in 2019 – and diagnostic tests .150 
Efforts have also increased in the provision of "good agricultural practice schemes in respect of 
avocados" and in "training producers in the importance of using certificated seed" .151 Finally, with 
regard to recommendation to assess the risk of "regulating the use as propagation material of seeds 
from avocados imported for consumption"152, Costa  Rica adopted the Regulation of 
23 September  2019 prohibiting the sowing of seeds of avocado  fruits imported from countries where 
ASBVd is present .153 All these measures are intended to reduce the risk inherent in diversion from 
intended use, but cannot completely eliminate the risk of introducing ASBVd . Accordingly, countries 
with a mechanized av ocado industry where there are no problems of diversion from intended use, 
such as New  Zealand, also have phytosanitary measures in place on the importation of fresh 
avocados for consumption.  
(iii)  And of the associated potential biological and economic consequences  
1.65.   Finally, Mexico has also failed to establish that Costa  Rica did not evaluate the potential 
biological and economic consequences of the introduction and spread of ASBVd within its territory, 
in conformity with the third element provided for in  the definition contained in Annex  A.4 of the SPS 
Agreement.  
1.66.   It is unclear how this lack of evaluation could come about given that Costa  Rica took account 
of the fact that avocado ( Persea americana  Mill.) would appear to be the only host for ASBVd in 
natur e (Horne (1934))154, reducing the likelihood of biological  consequences arising from other plant 
species becoming infected . However there is uncertainty over the viroid's potential to infect other 
plants of the Persea  genus, and in any event the introductio n of the pest would have an adverse 
effect on the avocado germplasm, to the detriment of biodiversity.155 
1.67.   Neither do we understand how it can be argued that there was no evaluation of the potential 
economic  consequences when in its risk assessment Costa  Rica expressly stated the following:  
Saucedo Carabez et al. (2013) state that there was a significant reduction 
in yield from symptomatic sunblotch -infected trees . Yield of asymptomatic 
trees was reduced by 15 -30% for Hass avocados . The reduction in 
symptomat ic trees can be as great as 75 % and the average weight of fruits 
fell by up to 40 %. The incidence of symptomatic Hass fruits was 46 -62%. 
The symptomatic fruits ripen in irregular fashion and there are effects on 
the ethylene -production rate and oil content (Mohamed and Thomas, 
(1980)).  
Attempts were made to inactivate sunblotch in budwood, seed, and 
budlings by heat therapy, indicating that ASBVd can withstand any heat 
treatment regimen that the avocado tissue could (Desjardins et al., 
(1980)).  
[…] T he removal of infected trees is the only method known to control the 
viroid (Hadidi  et al. (2003)) . The disease is difficult to control, there are no 
therapeutic methods or resistant varieties.156 
 
150 ARP-002-2017, Exhibit  MEX-84, p.  43; and Informe final sobre muestreo de 2019, Exhibit  CRI-21. 
151 ARP-002-2017, Exhibit  MEX-84, p.  43; and Plan Nacional Aguacatero, Exhibit  CRI-1, pp.  21 and 22.  
152 ARP-002-2017, Exhibit  MEX-84, p.  43. 
153 Reglamento sobre uso de semilla de aguacate, Exhibit  CRI-53. 
154 ARP-002-2017, Exhibit  MEX-84, p.  56; Horne (1934), Exhibit  CRI-138. 
155 ARP-002-2017, Exhibit  MEX-84, p.  41. 
156 ARP-002-2017, Exhibit  MEX-84, pp.  63-64; Sauce do Carabez et al. (2014), Exhibit  MEX-45; 
Mohamed and Thomas (1980)Mohamed and Thomas (1980), Exhibit  CRI-125; Desjardins et al. (1980), 
Exhibit  CRI-116; Hadidi et al. (2003), Exhibit  CRI-121. WT/DS524/R/Add.1  
 
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  1.68.   As can be seen, Costa  Rica took into account the potential damage in terms of loss of 
production or sales and the costs of control or eradication  in its territory, both factors that are listed 
in Article  5.3 of the SPS Agreement . The scientific literature is unanimous in its view that ASBVd 
leads to losses in yield and quality .157 The paper by Vallejo  Pérez et al. (2017) , which focuses on 
Mexico, estimated economic losses of up to USD  6 650 per hectare per year, and crop losses of up 
to 1 710 kg per hectare .158 Even the evidence submitted by Mexico states that ASBVd "is a pest of 
high economic significance, and as a result is included on several countries' lists of quarantine 
pests."159 Accordingly Costa  Rica was surprised that in Mexico's response to Panel que stion No.  4, 
Mexico stated that ASBVd is not "a threat to Mexican avocado production" since it did not have a 
"significant economic impact" when at the same time it acknowledges that it regards ASBVd as a 
"quarantine pest in respect of […] the importation of propagation material" .160 The inconsistency is 
plain. If Mexico did not regard ASBVd as economically significant it would not categorize it as a 
quarantine  pest. The scientific literature also confirms the high costs of control and eradication of 
the pest. Since there is no cure for the viroid the only option is to remove all infected trees expressing 
symptoms and to identify by testing any symptom -free carrier trees so that they too can be 
destroyed .161 Mexico itself recognizes that "once the disease a nd the viroid are in an area, it is 
very difficult  to eradicate" .162 The experts also confirm this .163 Costa Rica therefore found that there 
was the potential for biological consequences and the serious economic impact to which the 
introduction of ASBVd woul d give rise.  
*** 
1.69.   In view of the foregoing, Mexico has failed to establish a prima facie  case that Costa  Rica did 
not perform a "risk assessment" consistent with Annex  A.4 of the SPS Agreement, that considered 
the likelihood of entry, establishment or sprea d of ASBVd within its territory according to the 
phytosanitary measures which might be applied, and of the associated potential biological and 
economic consequences . Costa Rica notes that Mr  Griffin, one of the experts appointed by the Panel, 
who is recogn ized internationally for his experience in risk analysis, expressly confirmed that 
Costa  Rica's PRA has substantial evidence for reaching the conclusions it reached" .164 Additionally, 
in conformity with Article  5.1 of the SPS Agreement, the risk assessment was "appropriate to the 
circumstances" and the risk analysis techniques set out in the relevant ISPMs (in particular in 
ISPM No. 11), together with the technical and economic factors listed in Articles  5.2 and  5.3 of the 
SPS Agreement, were "taken into acc ount".  
4.2.2. 2 Mexico has failed to establish that Costa  Rica's measures are not "based on" the 
risk assessment  
1.70.   Article  5.1 of the SPS Agreement lays down the requirement that having performed the risk 
assessment, any sanitary or phytosanitary measures ado pted are to be "based on" that assessment . 
The Appellate Body has clarified that the requirement that a measure "be based on" a risk 
assessment is a "substantive requirement that there be a rational relationship  between the measure 
and the risk assessment" .165 In the light of the requirement for such a "rational relationship" between 
the measures and the risk assessment, Mexico has failed to establish in what respect the 
phytosanitary requirements imposed on the importation of fresh avocados do not flow or a rise from 
Costa  Rica's risk analysis, when it is clearly the case that they do.  
 
157 See Semancik (2003), Exhibit  MEX-46, p.  171; and Ploetz et al. (2011), Exhibit  MEX-56, p.  5. 
158 ARP-002-2017, Exhibit  MEX-84, p.  41; Vallejo  Pérez et al. (2017), Exhibit  MEX-47. 
159 ARP frutos frescos 2015, Exhibit  MEX-61, p.  5. 
160 Mexico's response to Panel question No.  4, para.  17. 
161 ARP-002-2017, Exhibit  MEX-84, p.  35; Coit (1928), Exhibit  CRI-9; Hadidi et al. (2003), 
Exhibit  CRI-121; Suarez et al. (2005)Suarez et al. (2005), Exhibit  CRI-136; and Saucedo Carabez 
et al. (2013), Exhibit  MEX-45. 
162 Mexico's first written submission, para.  388, point  4. (emphasis added)  
163 See for example Experts' Responses to Panel questions Nos. 58, 61, 67, 76, 77.  
164 Transcript of the expert hearing, second day, p.  36 (Mr  Griffin).  
165 Appellate Body Report, EC – Hormones , para.  193. WT/DS524/R/Add.1  
 
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  1.71.   In any event, Mexico has failed to establish that the phytosanitary requirements imposed on 
the importation of fresh avocados do not have a scientific and technical basis in th e risk assessment 
performed by the SFE and therefore that there is no "rational relationship" between them . The 
scientific evidence, empirical studies, and the experts assisting the Panel in this dispute, state that 
there is a risk associated with asymptom atic, ASBVd -infected avocados . In particular, it has been 
found that:  
• The viroid is systemic in the tissues of the avocado plant, including the fruit and its seed.166 
• There are asymptomatic  avocado fruits in which it is impossible to detect ASBVd by inspection 
alone.167 
• The seed of imported avocados remains viable during transportation and storage.168 
• Costa Rica's climatic conditions are suitable for natural germination of an avocado seed.169 
• The practice of diversion from intended use increases the risk that ASBVd -infected seeds of 
unknown origin will germinate.170 
• The likelihood that germination of seeds from asymptomatic  infected fruit will transmit the 
viroid to the new tree is very high, close to 100 %.171 
• Once introduced, the viroid spreads primarily through scions and the use of contaminated 
material.172 
• There is no cure for ASBVd and the only option is to destroy the infected trees.173 
• ASBVd has highly significant economic consequence s.174 
1.72.   On that basis, Costa  Rica implemented phytosanitary requirements to ensure the absence of 
ASBVd from asymptomatic  avocados . In conformity with Resolutions  002-2018 and 003 -2018, the 
exporting country can select from among three equally acceptable alte rnatives, including the 
standard requirement for certification attesting that a consignment is ASBVd -free.175 Costa Rica will 
verify the certification of pest absence at the point of entry through sampling and laboratory tests 
(RT-PCR).176 This measure has a  clear, "rational relationship" with the conclusions reached in the 
risk assessment as summarized above . Indeed, the measure has a scientific and technical basis even 
if the qualitative assessment of the risk as "high" or "medium" is disputed . The crucial points are 
that the risk exists (the seed from an asymptomatic fruit has extensive ability to transmit the viroid) 
and that ASBVd is a quarantine pest in Costa  Rica (absent from the country and has serious economic 
consequences) . In view of that risk the m inimum requirement is certification of consignments as 
ASBVd -free together with verification upon arrival . This is the most standard and common measure 
 
166 Ploetz et al. (2011), Exhibit  MEX-56, p.  5; ARP -002-2017, Exhibit  MEX-84, p.  34. 
167 ARP-002-2017, Exhibit  MEX-84, pp.  13, 37 and  62; Mohamed and Thomas (1980)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. 
168 ARP-002-2017, Exhibit  MEX-84, p.  36; Wutscher et al. (1969), Exhibit  MEX-132; Spalding 
et al. (1976), Exhibit  MEX-133. 
169 ARP-002-2017, Exhibit  MEX-84, p.  7; Holdridge  1987, Exhibit  CRI-122; Galindo -Tovar et al. (2008), 
Exhibit  MEX-22; CONSULSANTOS  2010, Exhibit  MEX-119, p.  15; and Aguacate criollo en Costa  Rica, 
Exhibit  CRI-58. 
170 ARP-002-2017, Exhibit  MEX-84, pp.  6-7; CONSULSANTOS (2017), Exhibit  MEX-118; 
CONSULSANTOS  2010, Exhibit  MEX-119; Estudio sobre manejo de s emillas en Costa Rica, Exhibit  CRI-44, 
p. 12; and Manual de Viveros, Exhibit  CRI-43, p.  20. 
171 ARP-002-2017, Exhibit  MEX-84, p.  62; Vargas et al. (1991), Exhibit  CRI-137; Hadidi et al. (2003), 
Exhibit  CRI-121; and Ochoa  Ascencio (2013), Exhibit  CRI-128. 
172 ARP-002-2017, Exhibit  MEX-84, p.  62; Hadidi et al. (2003), Exhibit  CRI-121. 
173 ARP-002-2017, Exhibit  MEX-84, p.  35; Coit (1928), Exhibit  CRI-9; Hadidi et al. (2003), 
Exhibit  CRI-121; and Suarez et al. (2005)Suarez et al. (2005), Exhibit  CRI-136. 
174 ARP-002-2017, Exhibit  MEX-84, pp.  63-64; Saucedo Carabez et al. (2013), Exhibit  MEX-45; 
Mohamed and Thomas (1980)Mohamed and Thomas (1980), Exhibit  CRI-125; Desjardins et al. (1980), 
Exhibit  CRI-116; Hadidi et al. (2003), Exhibit  CRI-121. 
175 See ISPM  No. 12 (on phyto sanitary certificates), Exhibit  CRI-97, p.  16. 
176 See Costa  Rica's response to Panel question No.  45. WT/DS524/R/Add.1  
 
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  that there is and one that Mexico would have no difficulty in meeting if it wished, as do other 
countrie s where ASBVd is present that currently export avocados to Costa  Rica. It is worth noting 
that these requirements are exactly the same as those that Mexico applies to quarantine pests that 
it regards as "low" risk.177 
1.73.   Consequently, Mexico has failed to esta blish that Costa  Rica's measure is not "based on" the 
risk assessment in conformity with Article 5.1 of the SPS Agreement.  
4.2.2. 3 Conclusion  
1.74.   Mexico has failed to establish that the "risk assessment" does not comply with the definition 
of Annex  A.4 of the SPS Agreement or with the requirements of Articles  5.1, 5.2 and 5.3 of the 
SPS Agreement . Mexico has also failed to establish that Costa  Rica's measure is not "based on" the 
scientific and technical conclusions reached in the risk assessme nt. Conversely, Costa  Rica has 
demonstrated that its phytosanitary requirements are based on the scientific and technical 
conclusions of an appropriate risk assessment . Therefore the Panel should dismiss Mexico's claims 
under Articles  5.1, 5.2 and  5.3 of t he SPS Agreement . Consequently the Panel should also dismiss 
Mexico's claim under Article  2.2 of the SPS Agreement.  
4.3 Mexico has failed to establish that Costa  Rica is restricting trade more than is required  
1.75.   Mexico has argued that Costa  Rica's phytosanit ary requirements are more trade -restrictive 
than required, but has not submitted any less restrictive alternative that achieves Costa  Rica's ALOP . 
Even in the event that the Panel considered the risk of entry, establishment and spread of ASBVd in 
Costa  Rica to be "low", there are no measures that are less restrictive for controlling a quarantine 
pest than those applied by Costa  Rica. Moreover, the alternatives put forward by Mexico are 
inappropriate . Therefore the Panel should dismiss Mexico's claims in res pect of trade restrictiveness.  
4.3.1 Article  5.6 of the SPS Agreement  
1.76.   Costa  Rica recalls that Article  5.6 of the SPS Agreement provides 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 paragraph 6 of Article 5, a measure is not more trade -restrictive than 
required unless there is another measur e, reasonably available taking into account 
technical and economic feasibility, that achieves the appropriate level of sanitary or 
phytosanitary protection and is significantly less restrictive to trade.  
1.77.   Essentially, in order to establish that a measure is  inconsistent with Article  5.6 of the 
SPS Agreement, a complainant must provide evidence that there is an alternative measure that : 
(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 measure at issue .178 Those 
requirements must be demonstrated in cumulative fashion179 and the burden of proof lies with the 
complainant .180 It should be noted that the determination of the ALOP is a prerogative [of the] 
respondent and not of a panel or of the Appellate Body .181 Annex A.5 of the SPS Agreement defines 
the "[a]ppropriate level of sanitary or phytosanitary protection" as "[t]he level of protection deemed 
 
177 Requisitos México para plagas cuarentenarias de riesgo bajo, Exhibit  CRI-107. 
178 Appellate Body Reports, Korea – Radionuclides , para.  5.22, referring to Appellate Body Reports, 
India – Agricultural products , para.  5.203; and Australia – Salmon , para.  194. 
179 Appellate Body Reports, Korea – Radionuclides , para.  5.21; and India – Agricultural products , 
para. 5.203.  
180 Panel Report, United States – Animals , para.  7.431, referring to Appellate Body Report, Japan – 
Agricultural Products  II, para.  126 and Panel Report, India – Agricultural products , para.  7.525.  
181 Appellate Body Report, India – Agricultural products , para.  5.205 citing th e Appellate Body Report, 
Australia – Salmon , para.  199. (emphasis in the original).  WT/DS524/R/Add.1  
 
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  appropriate by the Member establish ing a sanitary or phytosanitary measure ". Accordingly a panel 
would be expected to accord weight to the respondent's articulation of its ALOP, even more so in 
circumstances where that ALOP was specified with sufficient precision and has been consistently 
expressed as in this case.182 
4.3.2 Mexico has failed to establish that Costa Rica's measures do not comply with 
Article  5.6 of the SPS Agreement  
1.78.   Before addressing Mexico's claims under Article  5.6 of the SPS Agreement, Costa  Rica would 
like to reiterate tha t Mexico has not submitted claims relating to Article  2.2 of the SPS  Agreement 
in respect of the alleged restrictiveness of the measures implemented by Costa  Rica. In response to 
Panel question No.  98 addressing this very matter, Mexico merely argued that its arguments under 
Article  5.6 of the SPS Agreement apply mutatis mutandis  to Article  2.2 of the SPS Agreement and 
that that is sufficient for a finding of consequential violation .183 Mexico added only that the Panel in 
Australia – Apples  "exercised judici al economy" under Article  2.2 of the SPS Agreement having found 
a violation of Article  5.6 of the SPS Agreement . In any WTO dispute it is for the complaining party 
to explain its case . It is not for the responding Member to defend itself against arguments that have 
not been made, nor is it the function of the Panel "to make good the absence of argumentation on 
a party's behalf" .184 The fact that the Panel in Australia – Apples  exercised judicial economy with 
respect to New  Zealand's claim under Article  2.2 of the SPS Agreement, does not mean that Mexico 
is absolved from making its case under that Article, as New  Zealand did . Accordingly, the Panel 
should limit its findings with respect to the alleged restrictiveness of Costa  Rica's measures solely to 
Article  5.6 of the SPS Agreement.  
1.79.   That being said, with respect to Article  5.6 of the SPS Agreement, Mexico argues first that 
Costa  Rica's phytosanitary requirements are "impossible to meet"185 and are " de facto 
prohibitions" .186 This argument does not hold water . The Costa  Rican market is fully open to imports 
of fresh avocado for consumption and the only requirement is for those imports to be certified free 
of ASBVd – a seed -borne pest of established economic significance . Countries where ASBVd is 
present, such as Peru or Guatemala, currently export fresh avocados to Costa  Rica187 and their 
products compete on an equal footing with local avocados on the Costa  Rican market . Mexico itself 
sent a shipment of fresh avocados for consumption certified as ASBVd -free to Costa  Rica, proving 
that Mexico is in a position to meet Costa  Rica's phytosanitary requirement, if it wants to do so .188 
This demonstrates that Costa  Rica's phytosani tary measure, far from constituting the 
insurmountable barrier that Mexico suggests, can be met as a matter of course if the will to export 
is there.  
1.80.   Even assuming that Costa  Rica's phytosanitary requirements do involve a degree of 
restrictiveness, that re strictiveness is the minimum possible for achieving its ALOP . Costa Rica's 
phytosanitary measure provides the exporting country with full flexibility to choose the method it 
regards as most appropriate in order to ensure that the exported avocado fruits ar e free of ASBVd : 
(i) completion of a bilaterally agreed work plan (systems approach) ; or (ii) certification that the 
fruits originate from place of production that is free from ASBVd ; or (iii)  certification that the 
consignment is free of ASBVd . Any of the se three alternatives is acceptable and they all satisfy 
Costa  Rica's ALOP of doing everything possible to prevent the introduction of ASBVd in order to 
retain Costa  Rica's phytosanitary status as a territory from which the pest is absent . Costa Rica 
adopt ed alternative requirements with the very objective of minimizing adverse effects on trade, as 
provided for in Article  5.4 of the SPS Agreement . Where no bilateral systems approach has been 
agreed or where it is undesirable to certify places of production as [pest] free (for example because 
there are no places where all mother plants have been certified as ASBVd -free), the consignments 
can be certified as viroid -free. The exporting country can choose the option it prefers.  
 
182 Appellate Body Report, India – Agricultural products , para.  5.221.  
183 Mexico's response to Panel question  No. 98, para.  112. 
184 Appellate Body Report, United States – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  7.176.  
185 Mexico's first written submission, para.  579. 
186 Mexico's first written submission, paras.  579-580. 
187 Non-compliance with phytosanitary requirements, Exhibit  CRI-40; and Guatemalan Phytosanitary 
Certificat e, Exhibit  CRI-94. 
188 On 23  April 2018 the, National Agriculture and Food Health, Safety and Quality Service of Mexico's 
Directorate -General of Plant Health certified several tonnes of avocados as ASBVd -free. See Exhibit  CRI-38. WT/DS524/R/Add.1  
 
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  1.81.   Costa  Rica recalls that requesting  a consignment to be free of a quarantine pest is the 
minimum  requirement that an importing country can impose on the exporting counterpart . This is 
precisely the suggestion in ISPM  No. 12 (on phytosanitary certificates), which recommends the 
following sta ndard clause for phytosanitary certificates in general:  
This is to certify that the plants, plant products or other regulated articles described 
herein have been inspected and/or tested according to appropriate official procedures 
and are considered to be free from the quarantine pests specified by the importin g 
contracting party  and to conform with the current phytosanitary requirements of the 
importing contracting party, including those for regulated non --quarantine pests.189 
1.82.   Moreover, as referred to above, Mexico itself has phytosanitary measures of this kind in 
respect of low risk quarantine pests190 and presumably does not regard them as prohibitions or 
unnecessary restrictions, but as minimum requirements even in circumstances of lower risk.191 
1.83.   In its arguments under Article  5.6 of the SPS Agreement, Mexico re fers to two alternative 
measures, namely : (i) a domestic regulation in Costa  Rica to prevent diversion from intended use 
of the seed of fresh avocados for consumption and (ii)  certification of shipments free of ASBVd 
symptoms . However, as discussed below, neither of these measures complies with the relevant 
elements of Article  5.6 of the SPS Agreement.  
1.84.   Where the first "alternative" is concerned, the domestic regulation on diversion from intended 
use in relation to seed is a measure already adopted by Costa  Rica in addition to import 
requirements . Indeed, the Regulation of 23  September  2019 on the use of avocado seed192, 
implements one of the general recommendations of Costa  Rica's PRA .193 This Regulation is a 
supplementary measure that cannot independently achieve Costa Rica's ALOP with respect to the 
risk of introduction of ASBVd . First, the obligation laid down in the Regulation falls entirely on the 
consumer and it is supremely difficult for any State to verify strict compliance . Although it is expected 
that nursery gardeners and producers will be aware of the Regulation because of their daily work 
and will comply with the obligations laid down therein, it is more difficult for a consumer,  whether 
rural or urban, to be certain about the origin of the fruit they consume or aware of the prohibition 
on sowing the seed of fruit following consumption . The Costa Rican authorities' ability to control 
compliance with the Regulation by all consumers  is also much more limited than it is for nursery 
gardeners and producers, who are duly registered.  
1.85.   Secondly, although diversion from intended use is a significant risk factor for introduction of 
the pest, it is not the only one . Because of Costa  Rica's fa vourable climate and the fact that avocado 
seeds remain viable for several days after removal from the fruit194, requiring no specific treatment 
in order to germinate, the seeds can germinate without human assistance if they fall on suitable 
ground .195 The risk inherent in avocado waste (i.e. the seed) for the introduction of ASBVd explains 
why countries with technically sophisticated avocado industries where there are no problems of 
diversion from intended use, such as New  Zealand, maintain phytosanitary mea sures on avocados 
so that as importers they can retain their pest absence status.  
1.86.   In view of the foregoing, although Costa  Rica does not dispute that this Regulation contributes 
to reducing the risk of introducing ASBVd and, therefore, supplements the phyt osanitary 
requirements for the import of fresh avocados, it is not possible to conclude that it is an alternative 
measure that would independently achieve Costa  Rica's ALOP . In Costa  Rica's view, in the event that 
the Regulation applied alone it would only  be a question of time before ASBVd were introduced into 
the country . Accordingly, Costa  Rica has chosen to implement the Regulation alongside border 
 
189 ISPM No. 12, Exhibit  CRI-97, p. 15CHECK. (emphasis added).  
190 Requisitos México para plagas cuarentenarias de riesgo bajo, Exhibit  CRI-107. 
191 See for example Costa  Rica's response to Panel question No.  85. 
192 Reglamento sobre uso de semilla de aguacate, Exhibit  CRI-53. 
193 The PRA recommendation is to "[r]egulate the use, as propagation material, of seeds from avocados 
imported for consumption" (ARP -002-2017, Exhibit  MEX-84, p.  43). 
194 ARP frutos frescos 2015, Exhibit  MEX-61, p.  8. 
195 Estudio sobre manejo de semillas en  Costa Rica, Exhibit  CRI-44, p.  14. See also El aguacate criollo, 
Exhibit  CRI-74. WT/DS524/R/Add.1  
 
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  measures that are similar to those adopted by other countries such as New  Zealand, Panama or 
New Caledonia . 
1.87.   In relation to the second alternative, i.e.  certification of shipments free of ASBVd symptoms , 
this is a measure that by definition is not suitable for managing the risk presented by asymptomatic  
avocados that are infected with the viroid . The experts ro undly confirmed as much .196 As Mexico 
itself acknowledges, ASBVd is a viroid that often "does not express symptoms in fruits" .197 This 
means that regardless of the scope of post -harvest inspections and checks to ensure that no 
symptomatic fruits are exported , asymptomatic ASBVd -infected fruit will continue to be present in 
shipments along with seeds capable of transmitting the pest at a rate close to 100 %.198 The 
"alternative" put forward by Mexico is no more than a quality standard that Mexico already applies  
to its exports . Essentially this "alternative" amounts to the absence of any phytosanitary measure 
and leaves Costa  Rica fully exposed to the risk of ASBVd being introduced into its territory through 
the seed of asymptomatic fruit . It is obvious that avoc ados with blotches or grooves are not of 
sufficiently high quality to sell and thus are discarded in Mexico prior to export . However the 
avocados that have no symptoms  are precisely the avocados of concern to the Costa  Rican 
phytosanitary authorities . In view of the risk posed by such avocados, certification of symptom -free 
status is absolutely pointless and would in no way achieve Costa  Rica's ALOP.199 
1.88.   In conclusion, Mexico has failed to establish that the domestic Regulation on diversion from 
intended use of the seed of imported avocados or certification of consignments as free of ASBVd 
symptoms are alternatives that meet the requirements of Article  5.6 of the SPS  Agreement . 
Accordingly, Costa  Rica respectfully asks the Panel to dismiss Mexico's claim that the phytosanitary 
requirements contained in Resolutions  002-2018 and  003-2018 are more restrictive than required 
in a manner inconsistent with Article  5.6 of the SPS Agreement.  
4.4 Mexico has failed to establish that Costa  Rica is practising discrimination or failing to 
comply with the obligation incumbent upon it to regionalize its territory  
1.89.   Costa  Rica will address Mexico's claims on alleged discrimination and lack of regionalization 
jointly because the main argument underlying both claims is  in principle the same, namely that 
ASBVd is present in Costa  Rica. As discussed below, that argument is factually incorrect because 
ASBVd is absent from Costa  Rican territory in its entirety and Mexico has not submitted any proof 
whatever to the contrary . Therefore the Panel should dismiss Mexico's claims in respect of the alleged 
discrimination and lack of regionalization of Costa  Rica. 
4.4.1 Articles  2.3, 5.5 and  6.1 of the SPS Agreement  
1.90.   Article  2.3 of the SPS Agreement  imposes a general obligation of non -discrimination:  
Members shall 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 Members . Sanitary and 
phytosanitary measures shall not be applied in a manner which would constitute a 
disguised restriction on international trade.  
1.91.   The relevant part of Article  5.5 of the SPS Agreement  more specifically el aborates on the 
obligation of non -discrimination and provides as follows:  
With the objective of achieving consistency in the application of the concept of 
appropriate level of sanitary or phytosanitary protection against risks to human life or 
health, or t o animal and plant life or health, each Member shall avoid arbitrary or 
unjustifiable distinctions in the levels it considers to be appropriate in different 
situations, if such distinctions result in discrimination or a disguised restriction on 
internation al trade.  
 
196 See for example Experts' Responses to Panel questions Nos.  95, 116 -117 and Transcript of the 
expert hearing, second day, p.  47 (Mr  Griffin).  
197 Mexico's first written submis sion, para.  579. 
198 See for example Hadidi et al. (2003), Exhibit  CRI-121; and Ochoa  Ascencio (2013), Exhibit  CRI-128. 
199 See for example Costa  Rica's first written submission, paras.  5.226 -5.246 and Costa  Rica's second 
written submission, paras.  3.62-3.74. WT/DS524/R/Add.1  
 
- 68 - 
  1.92.   Articles  2.3 and  5.5 of the SPS Agreement lay down the principle of non -discrimination in the 
application of phytosanitary measures where the underlying circumstances are "comparable 
situations" . Where no such comparability exists, it does not re quire that measure to be applied to 
"different situations".  
1.93.   For its part, Article  6.1 of the SPS Agreement provides as follows:  
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 parts 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 diseases or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be 
developed by the relevant international organizations.  
1.94.   Article  6.1 of the SPS Agreement requires Members to ensure that their measures are 
"adapted" to the SPS characteristics of the areas from which the products at issue originate and to 
which they are destined200, taking into account  "all the evidence relevant to 'asses sing' the SPS 
characteristics of an area".201 
1.95.   In the light of the preliminary ruling issued by the Panel on 18  December  2019, the only claim 
by Mexico that is within the Panel's terms of reference is that concerning the alleged lack of 
regionalization of Costa  Rica's phytosanitary requirements to "the area to which the product is 
destined", namely, Costa  Rican territory.  
4.4.2 Mexico has failed to establish that Costa  Rica's measures do not comply with 
Articles  2.3, 5.5 and  6.1 of the SP S Agreement  
1.96.   Mexico's claims under Articles  2.3, 5.5 and 6.1 of the SPS Agreement are based on the 
premise that the ASBVd pest is present in Costa  Rica.202 Mexico claims that Costa  Rica's measures 
discriminate between imported Mexican avocados and Costa  Rican avocados (in contravention of 
Articles  2.3 and  5.5 of the SPS Agreement) and are not adapted to the phytosanitary characteristics 
of the different areas of Costa  Rican territory (in contravention of Article  6.1 of the SPS Agreement).  
1.97.   However, Mexico's pr emise is factually incorrect . The situations in Mexico and in Costa  Rica 
are different and cannot be compared : ASBVd is present in Mexico ; it is not present in Costa  Rica. 
Mexico has not provided a shred of evidence establishing that ASBVd is present in Co sta Rica. In its 
response to Panel question No.  26, Costa  Rica rebutted one by one the "evidence" submitted by 
Mexico that allegedly proves that ASBVd is present in Costa  Rica. However much Mexico argues to 
the contrary, to date, all laboratory tests condu cted on all samples collected over many years by 
Costa  Rica's SFE have been negative for the presence of ASBVd . Moreover, throughout these 
proceedings, Costa  Rica has given detailed explanations of its surveillance and control procedures 
for regulated pest s, and of the methodology used to collect samples . Costa Rica has noted that there 
is a register of farms in Costa  Rica and has explained how the geographical selection of sampling 
areas is made, ensuring the random nature and representativeness of those a reas, including back 
yards . Costa Rica has also addressed in detail the laboratory techniques used to verify the presence 
or absence of the viroid in samples, i.e. RT-PCR, the best diagnostic technique for ASBVd in terms 
of cost -effectiveness and time . Similarly, Costa  Rica has given extensive explanations of how it took 
ISPMs  Nos. 6 and  8 into account in its surveillance work and in its determination of the country's 
phytosanitary situation . Therefore Mexico has failed to establish that ASBVd is present in  Costa  Rica. 
1.98.   The reality is that the phytosanitary situations of Mexico and Costa  Rica in relation to the 
ASBVd pest are not "comparable" . Accordingly, Costa  Rica's phytosanitary requirements apply only 
to imports  of avocados originating in countries where ASBVd is present . This also means that there 
are no areas in Costa  Rica where there is a higher or lower prevalence of ASBVd or any programmes 
 
200 Appellate Body Report, Russia – Pigs, para.  5.57. 
201 Appellate Body Report, Russia – Pigs, para.  5.59. 
202 Mexico's first written submission, paras.  525, 592 and 595.  WT/DS524/R/Add.1  
 
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  to eradicate or control the viroid within the meaning of Article  6.1 of the SPS Agreement because 
the pest is quite simply absent from Costa  Rican territory in its entirety.  
1.99.   In relation to Article  5.5 specifically, in its second written submission Mexico provided 
additional arguments . According to Mexico, Costa  Rica applies  an identical level of protection to 
imported avocados for consumption and to imported avocado plants for planting, when the latter 
pose a greater phytosanitary risk .203 Contrary to Mexico's argument, Costa  Rica's levels of protection 
for fresh fruit and pl ants for planting are not the same . The importation of plants for planting poses 
a greater risk than the importation of fresh fruit for consumption and this is clearly reflected in the 
measures recommended in Costa  Rica's General PRA for pests .204 Where plants for planting are 
concerned, the recommended measures are much stricter, namely the plants for planting must be 
certified as having been obtained from indexed mother plants that are tested at least twice a year, 
and be accompanied by the laboratory t est results ; additionally, plants for planting will be subject 
to post -entry quarantine for no longer than 6  months, until the tests to indicate that they are free 
of Avocado Sunblotch viroid have been completed .205 Therefore, Mexico's claim that there is n o 
consistency between the levels of protection that Costa  Rica considers appropriate for fresh avocados 
imported for consumption where ASBVd is present compared with avocado plants for planting does 
not hold water.  
1.100.   Mexico also attempts to compare levels of  protection that are considered appropriate for the 
import of fresh avocados from Mexico with avocados imported from countries where ASBVd is 
present that do issue certification . The situation suggested by Mexico is a fiction – it neither does 
nor could ex ist. The requirements imposed on Mexico are the same as those that apply to any 
country where ASBVd is present . In the event that Mexico (or any other country where ASBVd is 
present) decides not to comply with Costa  Rica's phytosanitary requirements, it wi ll not be possible 
for Costa  Rica to import its avocados . Accordingly it is untenable to state that Costa  Rica applies a 
different level of protection for avocados imported from countries with ASBVd that discriminates 
against Mexico.  
1.101.   In conclusion, owing t o the fact that ASBVd is present in Mexico and absent from Costa  Rica, 
Mexico has failed to establish that the situations in both countries are comparable . Therefore, Mexico 
has failed to substantiate its claims under Articles  2.3, 5.5 and 6.1 of the SPS  Agreement.  
4.5 Mexico has failed to establish that Costa  Rica is not in compliance with the 
SPS Agreement  
1.102.   As Costa  Rica has noted, the phytosanitary measures it imposes on imports of avocados 
from countries with ASBVd have been developed and are applied "in  accordance with the provisions 
of … [the SPS] Agreement", within the meaning of Article  1.1 of that Agreement . Mexico has failed 
to establish that "such measures are … inconsistent with the provisions of … [the SPS] Agreement", 
within the meaning of Artic le 2.1 of the SPS Agreement.  
1.103.   In view of the foregoing, the Panel should dismiss Mexico's claims that Costa  Rica's measures 
are inconsistent with the obligations laid down in Articles  1.1 and 2.1 of the SPS Agreement.  
5 MEXICO HAS FAILED TO SUBSTANTIATE ITS CLAIMS UNDER THE GATT  
1.104.   Costa  Rica recalls that, in accordance with Article  2.4 of the SPS Agreement, "Sanitary or 
phytosanitary measures which conform to the relevant provisions of [the SPS] Agreement shall be 
presumed to be in accordance w ith the obligations of the Members under the provisions of 
GATT  1994 [] in particular the provisions of Article  XX(b)" . Accordingly, any phytosanitary measure 
adopted by a Member in accordance with the SPS Agreement must be regarded as compatible with 
the general disciplines of the GATT, without the need for an evaluation under the GATT . Therefore, 
Mexico has failed to establish that Costa  Rica's measures are inconsistent with the SPS  Agreement.  
 
203 Mexico's second written submission, para.  237. 
204 ARP-006-2016, Exhibit  MEX-85. 
205 ARP-006-2016, Exhibit  MEX-85, pp.  33-34. WT/DS524/R/Add.1  
 
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  5.1 Articles  III:4 and XI:1 of the GATT  
1.105.   Article  III:4 of the G ATT lays down the obligation of national treatment and provides as 
follows in the relevant part:  
The products of the territory of any [Member] imported into the  territory of any other 
[Member] shall be accorded treatment no less  favourable than that accord ed to like 
products of national origin in  respect of all laws, regulations and requirements affecting 
their internal sale, offering for sale, purchase, transportation, distribution or use. […] 
1.106.   In conformity with the Supplementary Note to Article  III of the  GATT, the measures that 
apply at the time or point of importation are covered by Article  III of the GATT only if  they "appl[y] 
to an imported product and to the like domestic product".  
1.107.   The relevant part of Article  XI:1 of the GATT  provides as follows:  
No prohibitions or restrictions other than duties, taxes or other charges, whether made 
effective through quotas, import … licences or other measures, shall be instituted or 
maintained by any [Member] on the importation of any product of the territory of a ny 
other [Member].  
1.108.   Articles  III:4 and XI:1 of the GATT are in principle, mutually exclusive . Article XI:1 of the 
GATT regulates border measures that apply solely to imports, whereas Article  III:4 of the GATT 
regulates internal measures that apply both to i mported and domestic products.206 
5.2 Mexico has failed to establish that Costa  Rica's measures do not comply with 
Articles  III:4 and XI:1 of the GATT  
1.109.   As Mexico itself acknowledges, Costa  Rica's phytosanitary requirements "apply only to 
imported products and do not apply to domestic products" .207 Accordingly the measure in question 
falls within the scope of application of Article  XI:1 of the GATT and not that of Article  III:4 of the 
GATT . Accordingly, the Panel should dismiss outright Mexico's clai m under Article  III:4 of the GATT , 
since the measure is not covered by that provision.  
1.110.   Where Article  XI:1 of the GATT  is concerned, Costa  Rica notes that its phytosanitary 
requirements are phytosanitary formalities inherent to the import process that are p ermitted under 
Article  VIII:4 of the GATT . In light of Article  VIII:4 of the GATT – which has been regarded as 
"context" for the interpretation of Article  XI:1 – Members recognize "that import formalities and 
requirements can have trade -restricting effects ", and are not therefore prohibited .208 Moreover, the 
Panels in Colombia – Textiles (Article 21.5) (Colombia) (Panama)  were of the view that "the findings 
under Article XI:1 of the GATT  1994 cannot have as a consequence the prohibition of […] formalities 
permitted by other provisions of the covered agreements" .209 Therefore the phytosanitary formalities 
permitted under Article  VIII:4, such as phytosanitary inspection, analysis and certification, could not 
violate Article  XI:1 of the GATT . In any event, Mexico  has failed to establish that the measures are 
"excessively burdensome" such that they constitute a restriction of such magnitude that they restrict 
imports within the meaning of Article  XI:1 of the GATT .210 Consequently, the Panel should dismiss 
Mexico's claim under Article  XI:1 of the GATT.  
1.111.   In any event, Costa  Rica's phytosanitary requirements are justified under Article  XX(b) of 
the GATT . The requirements are designed  to "protect plant life" in Costa  Rica since imports cannot 
be ruled out as pot ential carriers of the viroid, thus Costa  Rica's requirements "are not incapable" of 
dealing with the potential entry of the pest .211 Moreover, the phytosanitary requirements are 
 
206 Panel report, India – Autos , para.  7.224.  
207 Mexico's first written submission, para.  649. (emphasis added).  
208 Appellate Body Report,  Argentina – Import Measures , para.  5.233.  
209 Report of the Panels, Colombia – Textiles ( Article  21.5) (Colombia) (Panama) , para. 7.169. Note that 
this report has been appealed. At the time of writing, the Appellate Body has not issued its report in this 
matter.  
210 Report of the Panels, Colombia – Textiles (Article  21.5) (Colombia) (Panama) , para. 7.200. At the 
time of writing, the Appellate Body has not issued its report in this matter.  
211 Appellate Body Report, Colombia – Textiles , paras.  5.129 and 5.131.  WT/DS524/R/Add.1  
 
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  "necessary " to protect the health of avocados in Costa  Rica and to maintain it s status as a country 
from which ASBVd is absent, which implies an objective  of utmost importance to the Costa  Rican 
State . The requirements clearly contribute  to the attainment of that objective given that they enable 
Costa  Rica to satisfy itself, to the maximum extent possible, that imported avocados, even if 
symptom -free, are not infected with the viroid . Furthermore, the requirements are not especially 
restrictive . The importation of Mexican avocados is not prohibited, merely subject to a requirement 
for certification and verification that an ASBVd -infected product is not entering the Costa  Rican 
market . Finally, the measures also comply with the provisions of the chapeau  to Article  XX of the 
GATT, since they are applied to avocados originating in countr ies in like situation, namely countries 
with the pest . In view of the foregoing, the measures are fully justified under Article  XX(b) of the 
GATT.  
6. CONCLUSION  
1.112.   Mexico's claims  contain obvious flaws in terms of approach . Mexico requests a Panel ruling 
on the measures "as a whole", but has failed to establish the existence of an overarching measure . 
Accordingly the Panel should reject outright Mexico's request for findings on a measure "as a whole" . 
With regard to the individual measures, Mexico has failed t o establish that the Manual and the PRAs 
constitute phytosanitary measures that affect international trade, within the meaning of Article  1.1 
of the SPS Agreement . Thus the Panel should refrain from issuing findings in respect of those two 
measures/instrum ents. 
1.113.   With regard to the determination of absence of the pest , this is a measure that is outside 
the terms of reference of this dispute, and Mexico's criticism of it is based on mere conjecture . 
Therefore Costa  Rica requests that the Panel should declare i nadmissible Mexico's request for a Panel 
ruling on the determination of absence of the pest, and the claims related thereto.  
1.114.   Essentially Mexico has submitted four claims . None of them has any substance and they all 
fail on their own merits.  
• First, in respect of harmonization , there are no relevant international rules for ASBVd as 
none of the ISPMs identified by Mexico reflects any level of protection . Even in the event 
that the said ISPMs are regarded as relevant, Costa  Rica's measures are in deed based on 
them.  
• Second, with regard to the risk assessment , Mexico has failed to establish that Costa  Rica's 
"risk assessment" is inconsistent with Annex A.4 of the SPS Agreement or does not comply 
with the elements provided for in Articles  5.1, 5.2 an d 5.3 of the SPS Agreement . Mexico 
has also failed to establish that Costa  Rica's measures are not "based on" the scientific and 
technical conclusions reached in the risk assessment.  
• Third, with regard to the trade-restrictiveness , there are no measures th at affect trade less 
than those applied by Costa  Rica. Moreover, Mexico has not submitted any alternative that 
achieves Costa  Rica's Appropriate Level of Protection . Mexico has suggested a measure that 
is already in place and that would not by itself achie ve Costa  Rica's ALOP, and certification 
that symptoms are absent, which ignores the existence of asymptomatic fruits and 
constitutes merely a quality control.  
• Fourth, with regard to discrimination  and regionalization , Mexico has failed to establish that 
Mexico and Costa  Rica's phytosanitary situations are comparable . The reality is that they are 
not: the pest is present in Mexico and is not present in Costa  Rica. Thus, Costa  Rica is not 
under an obligation either to treat different situations in a like mann er or to regionalize its 
territory, from which ASBVd is absent in its entirety.  
7 REQUEST FOR RULINGS  
1.115.   In view of the foregoing, Costa  Rica respectfully requests that this Panel should dismiss all 
the claims submitted by Mexico and refrain from issuing reco mmendations.  
_______________  
 WT/DS524/R/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Conten ts 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 
 
 WT/DS524/R/Add.1  
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
I. MEXICO'S CLAIM THAT COSTA RICA IS IN BREACH OF THE OBLIGATION IN THE 
FIRST SENTENCE OF SPS Agreement ARTI CLE 6.1 FOR NOT ADAPTING ITS 
MEASURE TO THE CHARACTERISTICS OF THE AREA OF ORIGIN IS OUTSIDE THE 
PANEL'S TERMS OF REFERENCE  
1. Mexico's reference to Costa Rica's failure to adapt to the characteristics of the area of origin 
expanded Mexico's claims in its first written submission beyond the scope of the Panel's terms of 
reference.  
2. Canada notes that the claim of a failure to adapt to the characteristics of the area of origin is 
fundamentally different in nature from a claim that the Member has not adapted  to the 
characteristics of the area of destination . These are separate claims under Article 6.1 . The claims 
will involve evaluation of different risks and therefore documentation and evidence demonstrating 
that the respondent has done a proper evaluation . Forcing Costa Rica to defend an origin claim at 
this stage in the proceedings, (i.e. after receiving the first written submission) would seriously 
prejudice Costa Rica's ability to put forward a defence and undermine due process . Accordingly, 
Mexico's attempt to introduce the origin claim in its first written submission should fail.  
II. INTERNATIONAL STANDARDS UNDER SPS AGREEMENT ARTICLE 3.1 AND 
INTERNATIONAL RISK ASSESSMENT TECHNIQUES UNDER SPS AGREEMENT 
ARTICLE 5.1  
3. International standards, guidelines and recommendations considered under Article  3.1 can 
include risk assessment techniques if developed by international standard setting bodies referred to 
in Annex A.3 of the SPS Agreement.  
4. That said, it is Canada's view that in circumstances where the main issue in a dispute is the 
consistency of the respondent's risk assessment with the SPS Agreement, the Panel should focus its 
analysis on Article 5 . Article 5 sets out detailed obligations with respect to the conduct of a risk 
assessment and whether the Member has taken into account risk assessment techniques developed 
by international standard setting bodies.  
5. ISPM No. 2 and 11 were developed by the IPPC which is a "relevant international organization" 
recognized in Annex A, paragraph 3, as  an international body that develops international standards, 
guidelines and recommendations . In Canada's view, both ISPM No.  2 and No. 11 are "risk 
assessment techniques" relevant to an analysis under Article 5.1 . As the Appellate Body in Australia 
– Apples confirmed, ISPM No. 2 and 11 "present a general framework for conducting a risk 
assessment" . The Appellate Body in that case applied these risk assessment techniques in evaluating 
Australia's risk assessment under Article 5.1.  
III. THE MEANING OF THE TE RM "BASED ON" UNDER SPS AGREEMENT ARTICLE  3.1 
AND UNDER SPS AGREEMENT ARTICLE 3.3.  
6. The Appellate Body has interpreted the term "based on" under Article 3.3 to mean "founded 
or built upon, or is supported by […]"1 The Appellate Body's interpretation of the "based on" under 
Article 3.3 should apply to Article 3.1.  
7.  The international standard that a measure must be 'based on' under Article 3.1 must be 
appropriate to the circumstances – in other words "relevant" to the measure . For instance, a 
standard t hat permits the importation of products after certain risks are addressed would not be 
relevant to a measure that completely bans the importation of a product.  
 
1 Appellate Body Report, EC – Hormones, para. 165 and Panel Report, US – Animals, para. 7. 233. WT/DS524/R/Add.1  
 
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  IV. SPS AGREEMENT ARTICLES 5.2 AND 5.3 ARE OBLIGATIONS THAT ARE SEPARATE 
BUT RELATED TO THE OBLI GATIONS IN SPS AGREEMENT ARTICLE 5.1  
8. Article 5.1 requires WTO Members to ensure their SPS measures are based on a risk 
assessment . Articles 5.2 and 5.3 apply to the assessment of these risks . They set out the factors 
that a WTO Member must consider in a ssessing risks . More generally, they "qualify" the way a risk 
assessment must be conducted2. 
9. The phrase "as appropriate in the circumstances" in Article 5.1 applies to the assessment of 
risks conducted by the WTO Member pursuant to that provision . Pertinent to this dispute, risk 
assessment techniques developed by the relevant international organizations, as well as scientific 
opinions, may shed light on what is a risk assessment "appropriate to the circumstances" .3 The 
phrase is intended to provide WTO  Members "with a certain degree of flexibility in meeting the 
requirements under Article 5.1"4, but does not "annul or supersede" the obligation to base a measure 
on a risk assessment .5 
10. The phrase "as appropriate in the circumstances" does not apply to Articles 5.2 and 5.3 . Thus, 
there is no flexibility provided by that phrase with respect to the obligations to take into account the 
factors set out in Article 5.2 or Article 5.3 when conducting a risk assessment . However, we note 
the term "relevant" in various parts of Articles 5.2 and 5.3 provides flexibility for the risk assessor 
when conducting a risk assessment . Further, the factors considered in the assessment of risk 
under  Articles 5.2 and 5.3 inform what is relevant to the "circumsta nces" that are appropriate under 
Article 5.1.  
V. THE MEANING OF THE TERMS "TAKING INTO ACCOUNT" UNDER SPS  AGREEMENT 
ARTICLE 5.1 AND "SHALL TAKE INTO ACCOUNT" IN SPS  AGREEMENT ARTICLES  5.2 
AND 5.3  
11. The Panel in Russia – Pigs (EU) interpreted "take into a ccount" under Article 5.3 as meaning 
"give consideration" .6 This phrase has the same meaning in Articles 5.1 and 5.2.  
12. The obligation to "take into account" under Articles 5.1, 5.2 and 5.3 will vary according to the 
specific facts of the case, the SPS risks at issue and the risk assessment conducted by the Member . 
The obligations for WTO Members under these provisions will depend on these variables.  
 
 
2 Panel Report, Australia – Salmon, para. 8.57.  
3 Ibid, para. 8.71.  
4 Appellate Body Report, EC – Hormones, para. 129.  
5 Panel Report, Australia – Salmon, para. 8.57.  
6 Panel Report, Russia – Pigs (EU), para. 7.767.  WT/DS524/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. Article 3 of the SPS Agreement  
1. Article 3.1 of the SPS Agreement covers not only standards that are specific to a particular disease 
or pathogen . Rather, that article has to be understood as also covering more general texts, such as 
the ISPMs to which Me xico makes reference . According to the EU, therefore, the ISPMs 1, 2, 4, 6, 
8, 11 and 32 are therefore covered by the definition contained in Annex A(3)(c) of the 
SPS Agreement.  
2. Article 3.3 of the SPS Agreement can be applied to the ISPMs which are not disease - or pathogen 
specific by examining their content and by ascertaining the substantive standards and benchmarks 
which they set . Once that substantive content has been ascertained, a second step consists in 
comparing the measures adopted by Costa Rica . Insofar as those measures are stricter than the 
substantive content of the ISPMs referred to by Mexico, it can be said that Costa Rica has "projected 
for itself a higher level of sanitary protection than would be achieved by a measure based on an 
interna tional standard" and is subject to the disciplines of Article 3.3 of the SPS Agreement.  
3. The reference to "international standards, guidelines or recommendations" in Article 3.3 of the 
SPS Agreement is to standards which determine a given level of sanita ry or phytosanitary protection.  
4. The absence of the word "relevant" in Article 3.1 does not negate the importance of "relevance" 
for identifying standards on which measure can be based.  
2. Article 5 of the SPS Agreement  
5. If ISPMs 2 and 11 include rules  regarding risk assessment, according to the case law on Article  5.1 
of the SPS Agreement, the respondent is not required to adopt all the elements regarding risk 
assessment unless the measure fundamentally departs from ISPMs 2 and 11 . If ISPMs No. 2 and 1 1 
include risk assessment techniques, according to the case law, the respondent is merely required to 
"take them into account" but not to comply with such techniques.  
6. The phrase "as appropriate to the circumstances" in Article 5.1 of the SPS Agreement m eans 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 . It provides some flexibility for 
Members in the conduct of their risk assessment without absolving them of their duty to base their 
measures on a risk assessment . In line with the case law, the EU considers that whether the elements 
set forth in Articles 5.2 and 5.3 were taken into account is also relevant to a determination  of whether 
the risk assessment was "appropriate to the circumstances".  
7. The expressions "shall take account of" and "shall take into account" set out in Articles  5.1, 5.2 
and 5.3 of the SPS Agreement appear to have an identical meaning, namely to "to ta ke into 
consideration" and do not require any particular result of that consideration.  
8. Regarding Article 5.3 of the SPS Agreement, the EU considers that there is nothing to indicate 
that the list of relevant economic factors set out in this provision is  a "closed list" . Since the risk 
assessment has to be "as appropriate to the circumstances", there is no reason to limit the economic 
factors that are relevant to the assessment of risk to animal or plant life or health . The EU considers 
that a Member is o bliged 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.  
9. Further, it is the complaining party that bears the burden of proving that the defendant did not 
take into account the relevant economic factors referred in Article 5.3 of the  SPS Agreement.  WT/DS524/R/Add.1  
 
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  10. The EU agrees with the finding of the panel in Russia -Pigs (EU)  that Article 5.4 and 5.6 of the 
SPS Agreement are part of the context in which a Member 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.  
_______________  
 WT/DS524/R/Add.1  
 
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  ANNEX D  
PRELIMINAR Y RESOLUTION OF THE PANEL  
Conten ts Page 
Annex D-1 Preliminar y Resolution of the Panel  78 WT/DS524/R/Add.1  
 
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  ANNEX D -1 
PRELIMINARY RULING BY THE PANEL  
1. PROCEDURAL HISTORY  
1.1. In its first written submission of 25  September  2019, Costa Rica submitted a request for a 
preliminary ruling on Mexico's claim that Costa Rica acted inconsistently with Article  6.1 of the 
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) . Costa Rica 
considers that Mexico's claim regarding the adaptation of Costa Rica's measures to t he area from 
which the product originated of falls outside the Panel's terms of reference.  
1.2. Costa Rica requested that the Panel resolve this matter through a preliminary ruling as soon as 
it had given the parties an opportunity to present their views o rally at the first substantive meeting 
and, in any event, prior to setting the timetable for the submission of the parties' second written 
submissions, the possible participation of the experts and the other subsequent stages of the 
proceedings.1 
1.3. In accordance with Rule 4.1(a) of the adopted Working Procedures2, the Panel granted Mexico 
the opportunity to respond to Costa Rica's request for a preliminary ruling prior to the first 
substantive meeting . Mexico submitted its response to Costa Rica's requ est on 15  October  2019. 
Both parties had the opportunity to pronounce themselves on Costa Rica's request for a preliminary 
ruling during the first substantive meeting . In addition, the Panel posed three written questions to 
the parties related to this issu e.3 
1.4. In accordance with Rule 4.1(d) of the adopted Working Procedures4, the Panel also provided 
third parties with the opportunity to comment on Costa Rica's request for a preliminary ruling . 
Canada submitted its comments on 22  October  2019.  
1.5. Rule 4.1(b) of the adopted Working Procedures states that "[t]he Panel may issue  a preliminary 
ruling on the issues raised in such a preliminary ruling request prior to the submission of written 
rebuttals, if possible, or the Panel may defer a ruling on the issues raised by a preliminary ruling 
request until it issues its Report to th e parties ." In addition, Rule 4.1(c) of the Working Procedures 
provide that "[i]n the event that the Panel finds it appropriate to issue a preliminary ruling prior to 
the issuance of its Report, the Panel may provide reasons for the ruling at the time that  the ruling 
is made, or subsequently in its Report."  
1.6. In accordance with the adopted Working Procedures, the Panel has chosen to issue, at this 
stage of the proceedings, a preliminary ruling on whether Mexico's claim under Article  6.1 of the 
SPS Agreem ent, as regards the alleged failure to adapt Costa Rica's measures to the sanitary or 
phytosanitary characteristics of the area from which the product originated, falls within or outside 
its terms of reference.  
 
1 Costa Rica's first written submission, para. 4.2.  
2 Rule 4.1(a) provides in the relevant part that "Mexico shall submit its response to the request prior to 
the first substantive meeting of the Panel, at a time to be determined by the Panel in light of th e request."  
3 See Panel questions Nos. 1, 2, 3 and 4.  
4 Rule 4.1(d) provides in its relevant part 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."  WT/DS524/R/Add.1  
 
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  2 MAIN ARGUMENTS OF THE PARTIES AND THIRD PAR TIES  
2.1 Costa Rica  
2.1. Costa Rica argues that Mexico has introduced a claim in its first written submission that is not 
within the Panel's terms of reference, namely the claim of inconsistency with Article 6.1 of the 
SPS Agreement, with regard to the adaptation of Costa Rica's measures to the area from which the 
product originated.5 
2.2. Costa Rica submits that Article 6.1 the SPS Agreement contains two main obligations, namely : 
(i) the importing Member's obligation to adapt its measures to the area f rom which the product 
originated ; and (ii) the importing Member's obligation to adapt its measures to the area to which 
the product is destined .6 Costa Rica asserts that in its request for the establishment of a panel, 
Mexico only claims that Costa Rica violated its obligation to adapt the measures to the area to which 
the product is destined.7 
2.3. Costa Rica submits that the specific legal problem presented by Mexico in its panel request is 
that Costa Rica allegedly fails to adapt the measures at issue to Costa  Rica's sanitary or 
phytosanitary characteristics .8 Costa Rica notes, however, that in its first written submission, Mexico 
not only addresses Costa Rica's alleged violation of adapting its measures to the destination area 
within Costa Rica,  but also includes a new claim regarding Costa Rica's failure to comply with the 
obligation to adapt the measures to the area from which the product originated.9 
2.4. Costa Rica asserts that simply listing articles in a panel request is not sufficient ins ofar as the 
listed articles do not establish a single and clear obligation, but rather a plurality of obligations and 
that, in such cases, the panel request must specify which one is being challenged.10 
2.5. Costa Rica adds that Mexico was clear in its pan el request by specifying which of the two 
obligations was the basis for its complaint : failure to adapt to the area to which the product is 
destined . In Costa Rica's view, Mexico thus left the other obligation outside the scope of this 
dispute.11 
2.6. Costa Rica is of the view that accepting Mexico's claim regarding the obligation to adapt 
measures to the area from which the product originated would effectively amount to modifying the 
panel request, by expanding the initial claim, or to acknowledging that t he legal issue underpinning 
the panel request was not sufficiently clear.12 
2.7. Therefore, Costa Rica requests the Panel to find that Mexico's claim under Article  6.1 of the 
SPS Agreement, with respect to the alleged failure to adapt Costa Rica's measures  to the area from 
which the product  originated , falls outside the scope of this dispute.13 
 
5 Costa Rica's first writte n submission, para. 4.1.  
6 Costa Rica's first written submission, para. 4.10; responses to Panel questions Nos. 1 and 2.  
7 Costa Rica's first written submission, para. 4.11.  
8 Costa Rica's first written submission, para. 4.12.  
9 Costa Rica's first written submission, para. 4.13; opening statement at the first meeting of the Panel, 
para. 22. 
10 Costa Rica's first written submission, para. 4.16 (referring to Appellate Body Report, Korea – Dairy , 
para. 124; and Panel Report, Korea – Pneumatic Valves , para. 7.26 . 
11 Costa Rica's first written submission, para. 4.16.  
12 Costa Rica's first written submission, para. 4.18; opening statement at the first meeting of the Panel, 
para. 22. 
13 Costa Rica's first written submission, para. 4.18; opening statement at the first m eeting of the Panel, 
para. 22. WT/DS524/R/Add.1  
 
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  2.2 Mexico  
2.8. Mexico argues that Costa Rica has misinterpreted Article 6.2 of the DSU and Article  6.1 of the 
SPS Agreement, due to the fact that : (i) it confuses the concepts of claim and argument under the 
DSU; and (ii) is mistaken about the scope of the obligation being challenged.14 
2.9. Mexico submits that, if the article at issue contains a single obligation, it makes no sense to 
require clarification of which obligation is being challenged . Mexico asserts that identification of the 
particular provision alleged to have been violated is insufficient only when it contains multiple 
obligations.15 
2.10. Mexico asserts that it is clear from the  reading of its panel request that it did refer to and 
specifically identify the obligation contained in Article 6.1 of the SPS Agreement.16 
2.11. Mexico argues that it complied with the standard of Article 6.2 of the DSU by expressly and 
unambiguously ref erring to the particular provision that it claims that Costa Rica has violated . Mexico 
submits that Costa Rica confuses the concepts of claim and argument, because the reference to "the 
area to which the product is destined" in its panel request forms part  of the arguments that Mexico 
has no obligation to develop, and the reference to Article 6.1 of the SPS Agreement establishes the 
claim .17 Mexico adds that while it decided to refer to one of the arguments in its panel request, this 
does not mean that it i s now limited to addressing other arguments in support of its claim.18 
2.12. Mexico also submits that Costa Rica misrepresents the scope of the obligation contained in 
Article 6.1 of the SPS Agreement . Mexico asserts that the Appellate Body has referred to  a single 
obligation under Article 6.1 of the SPS Agreement19, so it is a single obligation that regulates two 
situations .20 For Mexico, Costa Rica erroneously considers that Article 6.1 the SPS  Agreement 
contains two main obligations, namely : (i) to adapt  its measures to the area from which the product 
originated ; and (ii) to adapt its measures to the area to which the produc t is destined.21 
2.13. Mexico argues that Article 6.1 of the SPS Agreement does not contain multiple obligations, but 
rather a single one, and that its panel request contains elements that go beyond merely referring to 
the relevant provision as, for example, setting out a potential argument to be addressed in its first 
written submission, but that it was neither necessary nor comp ulsory to develop it in its entirety.22 
2.14. Mexico therefore considers that the Panel should reject Costa Rica's request for a preliminary 
ruling23 and requests the Panel to issue its preliminary ruling prior to the submission of the second 
written submi ssions.24 
 
14 Mexico's response to Costa Rica's request for a preliminary ruling, para. 2.  
15 Mexico's response to Costa Rica's request for a preliminary ruling, para. 7 (referring to 
Appellate  Body Reports, Indonesia – Iron or Steel Products (Chinese Taipei) , paras. 5.81 and 5.78; China – HP-
SSST (Japan),  para. 5.15; and US – Countervailing and Anti -Dumping Measures  (China),  para. 4.8); response 
to Panel questions  Nos. 1 and 2.  
16 Mexico's response to Costa Rica's request for a prelimi nary ruling, para. 10.  
17 Mexico's response to Costa Rica's request for a preliminary ruling, para. 11.  
18 Mexico's response to Costa Rica's request for a preliminary ruling, para. 12.  
19 Mexico's response to Costa Rica's request for a preliminary ruling, par a. 15 (referring to 
Appellate  Body Reports, India – Agricultural Products , para. 5.132; and Russia – Pigs (EU) , para. 5.58.  
20 Mexico's response to Costa Rica's request for a preliminary ruling, paras. 16 and 17.  
21 Mexico's response to Costa Rica's request for a preliminary ruling, paras. 20 and 21.  
22 Mexico's response to Costa Rica's request for a preliminary ruling, paras 22 and 23.  
23 Mexico's response to Costa Rica's request for a preliminary ruling, para. 24.  
24 Mexico's response to Costa Rica's request f or a preliminary ruling, para. 25.  WT/DS524/R/Add.1  
 
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  2.3 Third parties  
2.3.1 Canada  
2.15. Canada considers that Mexico's reference in its first written submission to a new basis for its 
allegation of a breach of Article 6.1 of the SPS Agreement expands Mexico's claim in its panel request 
and is the refore outside the Panel's terms of reference.25 
2.16. Canada notes that Mexico did not simply list Article 6.1 of the SPS  Agreement in its panel 
request, but also added more specificity, by indicating that the breach was due to the failure to 
adapt the measure to the characteristics of the area of destination for the avocados . Thus, the claim 
was narrowed to the failure to adapt to the characteristics of the area of destination.26 
2.17. Canada agrees with the Appellate Body's characterization of Article 6.1 of the SPS  Agreement 
in India – Agricultural Products  as a single obligation requiring adaptation to the characteristics of 
two areas or regions : origin and destination.27 
2.18. Canada is of the view that Mexico has narrowed its claim to the failure to adapt to the 
characteristics of the area of destination . If the Panel accepted Mexico's submission with respect to 
the failure to adapt to the characteristics of the area of origin, it would be addressing a part of the 
claim that did not appear in the panel request.28 
2.19. Canada explains that relevant question for the Panel is whether the inclusion of the failure to 
adapt to the area of origin in Mexico's first written submission amounts to a new claim .29 Canada 
notes that Mexico's panel reques t includes a specific allegation of a breach of Article  6.1 due to a 
failure to adapt to the characteristics of the area of destination . In Canada's view, Mexico's first 
written submission contains a different basis for that beach, thereby expanding the cl aim expressed 
in its panel request . In Canada's opinion, such a new basis is not within the scope of the Panel's 
terms of reference.30 
3 ANALYSIS BY THE PANEL  
3.1. Article 6. 2 of the Understanding on Rules and Procedures Governing the Settlement of Disput es 
(DSU), whose requirements have been characterized by the Appellate Body as "central to the proper 
establishment of the jurisdiction of a panel"31, provides in the relevant part:  
The request for the establishment of a panel shall be made in writing . It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly.  
3.2. The Appellate Body has noted that the panel request "governs a panel's terms of reference and 
delimits the scope of [its] jurisdiction" .32 In fulfilling this function, it also fulfils a due process 
objective, by providing the respondent and third parties with notice regarding the nature of the 
compl ainant's case and by enabling them to respond accordingly.33 
3.3. Whether the panel request complies with the requirements of Article  6.2 of the DSU must be 
determined "on the face of the panel request, on a case -by-case basis" .34 A panel must "scrutinize 
carefully the panel request, read as a whole, and on the basis of the language used".35 
 
25 Canada's comments on Costa Rica's request for a preliminary ruling, para. 2.  
26 Canada's comments on Costa Rica's request for a preliminary ruling, para. 8.  
27 Canada's comments on Costa Rica's request for a preliminary r uling, paras. 10 -11 (referring to 
Appellate  Body Report, India – Agricultural Products , para. 5.131).  
28 Canada's comments on Costa Rica's request for a preliminary ruling, para. 12.  
29 Canada's comments on Costa Rica's request for a preliminary ruling, para . 13. 
30 Canada's comments on Costa Rica's request for a preliminary ruling, para. 16.  
31 Appellate Body Report, Korea - Pneumatic Valves , para. 5.8.  
32 Appellate Body Report, Korea - Pneumatic Valves , para. 5.8.  
33 Appellate Body Report, Korea - Pneumatic Valves , para. 5.8.  
34 Appellate Body Report, Korea - Pneumatic Valves , para. 5.8.  
35 Appellate Body Report, Korea - Pneumatic Valves , para. 5.5 (referring to Appellate Body Report, 
China  – HP-SSST  (Japan)/ China – HP-SSST (EU ), para. 5.13; and EU – Fasteners  (China), para. 562).  WT/DS524/R/Add.1  
 
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  3.4. Moreover, "[d]efects in the request … cannot be cured in the subsequent submissions of the 
parties during the panel proceedings"36, but such subsequent submissions  or statements, in 
particular the first written submission of the complaining party, may be consulted "in order to confirm 
the meaning of the words used in the panel request".37 
3.5. This dispute concerns whether Mexico's claim under Article 6.1 of the SPS Agreement, as 
regards the alleged failure to adapt Costa Rica's measures to the phytosanitary characteristics of the 
area from which the product originated , falls within the terms of reference of this Panel . Under the 
terms of Article 6.2 of the DSU, w hether, with respect to Mexico's claim under Article  6.1 of the 
SPS Agreement concerning the alleged failure to adapt Costa Rica's measures to the phytosanitary 
characteristics of the area from which the product originated, Mexico provided "a brief summary  of 
the legal basis of the complaint sufficient to present the problem clearly" within the meaning of the 
last part of the second sentence of that article.  
3.6. To provide "a brief summary of the legal basis of the complaint sufficient to present the probl em 
clearly", "a panel request must plainly connect the measure(s) with the provision(s) of the covered 
agreements claimed to have been infringed."38 The degree of brevity that is permissible "is a function 
of its clarity in presenting the problem" .39 
3.7. The Appellate Body has explained that "[t]he identification of the treaty provision claimed to 
have been violated by the respondent is 'always necessary' and a 'minimum prerequisite'"40, but it 
may not be sufficient to meet the requirements of Article 6.2 , "depending on the particular 
circumstances of a case" .41 The Appellate Body has also stated that "[s]uch circumstances include 
the nature of the measure at issue and the manner in which it is described in the panel request, as 
well as the nature of the p rovision of the covered agreements alleged to have been breached."42 The 
Appellate  Body has noted as an example that "to the extent that a provision contains not one single, 
distinct obligation, but rather multiple obligations, a panel request might need t o specify which of 
the obligations contained in the provision is being challenged".43 
3.8. Lastly, it is important to clarify that a "panel request need only provide the 'legal basis of the 
complaint', that is, the claims  underlying this complaint and not the arguments  in support thereof" .44 
3.9. The Panel first notes that, in Section III (Brief summary of the legal basis of the complaint) of 
its panel request, Mexico stated its claim under Article 6.1 of the SPS Agreement as follows:  
Mexico considers that the measures at issue, either individually or jointly, are 
inconsistent with Costa Rica's obligations under the SPS Agreement and the GATT  1994, 
specifically with:  
(…) 
• Article 6.1 of the SPS Agreement, since Costa Rica's measures were not adapted 
to the sa nitary or phytosanitary characteristics of the area to which the product 
is destined, that is, of its territory.45 
 
 
36 Appellate Body Report, Korea – Pneumatic Valves , para. 5.8.  
37 Appellate Body Report, Korea – Pneumatic Valves , para. 5.8.  
38 Appellate Body Report, Korea – Pneumatic Valves , para. 5.9.  
39 Appellat e Body Report, Korea – Pneumatic Valves , para. 5.6.  
40 Appellate Body Report, Korea – Pneumatic Valves , para. 5.9 (referring to Appellate Body Reports, 
China  – HTP-SST (Japan) /  China – HP-SSST (EU) , para. 5.14; Korea – Dairy , para. 124; Brazil - Desiccated 
Coconut , note 21, p. 24; EC – Bananas III , paras. 145 and 147; and India – Patents (United States),  paras.  89 
and 92-93). 
41 Appellate Body Report, Korea – Pneumatic Valves , para. 5.9.  
42 Appellate Body Report, Korea – Pneumatic Valves , para. 5.9.  
43 Appellate Body Report, Korea – Pneumatic Valves , para. 5.6 (referring to Appellate Body Reports, 
US – Countervailing Measures (China),  para. 4.9; China – Raw Materials , para. 220; Korea – Dairy , para. 124; 
EC – Fasteners (China),  para. 598; and US – Count ervailing and Anti -Dumping Measures (China) , para. 4.8).  
44 Appellate Body Report, Korea – Pneumatic Valves , para. 5.6 (referring to Appellate Body Reports, 
China  – HP-SSST (Japan)  / China – HP-SSST (EU),  para. 5.14; Korea – Dairy , para. 139; and US – 
Count ervailing Measures (China),  para. 4.9).  
45 Request for the establishment of a panel by Mexico, WT/DS524/2, Section IIIA, point 12.  WT/DS524/R/Add.1  
 
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  3.10. Article 6.1 of the SPS Agreement provides as follows:  
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 parts of several countries - from which the product origina ted 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 diseases or pests, the existence of eradication or control 
programmes, and appropriate criteria or guidelines which may be developed by the 
relevant international organizations.  
3.11. The Panel notes that Mexico does not refer in its panel request, either in its claim under 
Article  6.1 of the SPS Agreement  or in any other claim or section, to the failure to adapt Costa  Rica's 
measures to the sanitary or phytosanitary characteristics of the area from which the product 
originated . In fact, Mexico expressly specifies in its panel request, beyond the text of Ar ticle 6.1 of 
the SPS Agreement, that the area to which the product is destined refers to "its territory", that is, 
the territory of Costa Rica.  
3.12. In its first written submission, however, Mexico sets forth for the first time the problem of the 
alleged failure to adapt Costa Rica's measures to the phytosanitary characteristics of the area from 
which the product originated . Mexico claims that Costa Rica's measures are inconsistent with 
Article  6.1 of the SPS  Agreement, because Costa Rica failed to take in to account the level of 
prevalence of ASBVd in its territory or in exporting countries46; or the existence or absence of ASBVd 
eradication and control programmes in its territory and in exporting countries47; or the existence of 
WTO, IPPC or other RPPO cri teria and guidelines, in particular with regard to taking into account the 
robustness and reliability of Mexico's and other avocado -exporting countries'  phytosanitary 
infrastructure, or any of their knowledge and experiences .48 In addition, Mexico claims t hat 
Costa  Rica failed to ensure that its measures were adapted to the phytosanitary characteristics of 
its territory and those of other avocado -producing countries , arguing that Costa  Rica should have 
adjusted its SPS measures for Mexico, and the other avo cado-producing countries exporting to its 
territory in accordance with : (i) the phytosanitary status of ASBVd and sunblotch disease in its 
territory ; and (ii) the prevalence of ASBVd and sunblotch disease not only in Mexico and the other 
avocado -producing countries, but in areas in which the presence of ASBVd has specifically been 
recorded .49 These arguments, insofar as they concern Mexico or other exporting countries, relate to 
the alleged failure to adapt Costa Rica's measures to the sanitary or phytosani tary characteristics of 
the area from which the product originated . Mexico submits that its claim of inconsistency with 
Article 6.1 of the SPS  Agreement, with respect to the adaptation of Costa Rica's measures to the 
sanitary or phytosanitary characteristi cs of the area from whic h the product originated, falls within 
the Panel's terms of reference . Mexico presents two main arguments in this regard : (i) that Article 
6.1 of the SPS Agreement contains a single obligation, consequently identification of the provision 
in question is sufficient to meet the requirements of Article  6.2 of the DSU ; and (ii)  that the reference 
to "the area to which the product is destined" in its panel request forms part of the arguments and 
not the claim.50 
3.13. This Panel is not convinced by Mexico's first argument . The Panel does not consider that the 
references of panels and the Appellate Body to "the obligation" in the cases cited by Mexico are 
determinative for the case at hand . All these references were made in the context of generally 
explaining Article 6.1 of the SPS Agreement and not in the context of a discussion on the Panel's 
terms of reference51, and in particular on whether the obligation contained in Article 6.1 is a "single, 
distinct obligation".52 
 
46 Mexico's first written submission, paras. 590 -595. (emphasis added)  
47 Mexico's first written submission, paras. 596 -599. (em phasis added)  
48 Mexico's first written submission, paras. 600 -603. (emphasis added)  
49 Mexico's first written submission, paras. 604 -608. (emphasis added)  
50 See, for example Mexico's response to Costa Rica's request for a preliminary ruling, para. 42.  
51 Mexico refers to Appellate Body Reports, India – Agricultural Products , paras. 5.131 -5.132 and 5.152, 
and Russia – Pigs (EU),  para. 5.58; and Panel Reports, US – Animals , para. 7.642; and Russia – Pigs (EU), 
paras.  7.462 and 7.473.  
52 Appellate Body Report, Korea – Pneumatic Valves , para. 5.9 (referring to Appellate Body Reports, 
US – Countervailing Measures (China), para. 4.9; China – Raw Materials, para. 220; and Korea – Dairy , WT/DS524/R/Add.1  
 
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  3.14. In any event, the Panel does not consider it necessary in this particular case to determine 
whether the first sentence of Article 6.1 of the SPS Agreement, which re quires Members to ensure 
that their measures are adapted to the sanitary or phytosanitary characteristics of the area from 
which the product originated and to which the product is destined, must be characterized as a single 
obligation, as Mexico indicates,  or as two distinct obligations, as Costa Rica contends . The fact is 
that the provision obliges Members to adapt their SPS measures to the sanitary or phytosanitary 
characteristics of two areas, that from which the product originated and that to which it i s destined, 
which implies two different adaptation scenarios, and in its panel request Mexico only referred to 
the alleged failure to adapt Costa  Rica's measures to the sanitary or phytosanitary characteristics of 
the area to which the product is destined,  and even explicitly specified that the area to which the 
product is destined refers to the territory of Costa  Rica. 
3.15. Nor is the Panel convinced by Mexico's second argument that the reference to "the area to 
which the product is destined" in its panel  request forms part of the arguments and not the claim . 
For the purposes of Article 6.2 of the DSU, the word "claim" refers to an allegation "that the 
responding party has violated … an identified provision of a particular agreement"53, while the 
arguments  "are statements put forth by a complaining party 'to demonstrate that the responding 
party's measure does indeed infringe upon the identified treaty provision'" .54 The Panel does not 
consider that simply mentioning the alleged failure to adapt to the sani tary or phytosanitary 
characteristics of the area to which the product is destined in Mexico's panel request can be 
characterized as an argument . Mentioning it, without further detail or explanation, cannot be 
considered as a statement put forth by Mexico to demonstrate that Costa Rica's measure does indeed 
infringe upon Article 6.1 of the SPS Agreement.  
3.16. In addition, under the particular circumstances of the matter that has been referred to this 
Panel for a preliminary ruling, the most important thing  is that the panel request fulfils a due process 
objective, by providing the respondent and third parties with notice regarding the nature of the 
complainant's case and by enabling them to respond accordingly.55 
3.17. As mentioned earlier, in the claim und er Article 6.1 of the SPS Agreement in its panel request, 
Mexico made no mention of the alleged failure to adapt Costa Rica's measures to the sanitary or 
phytosanitary characteristics of the area from which the product originated . On the contrary, it 
expre ssly mentioned the failure to adapt Costa Rica's measures to the sanitary or phytosanitary 
characteristics of the area to which the product is destined . In view of the foregoing, Costa  Rica 
could not foresee that Mexico would include in its first written s ubmission arguments concerning the 
alleged failure to adapt Costa Rica's measures to the phytosanitary characteristics of the area from 
which the produc t originated . This has prejudiced Costa Rica's ability to defend itself on this point.  
3.18. For the rea sons set out above, this Panel considers that, in its panel request, Mexico limited 
its claim under Article 6.1 of the SPS Agreement to the alleged failure to adapt Costa Rica's measures 
to the sanitary or phytosanitary characteristics of the area to which  the product is destined . In view 
of the foregoing, as regards the alleged failure to adapt Costa Rica's measures to the phytosanitary 
characteristics of the area from which the product originated, Mexico failed to "provide a brief 
summary of the legal bas is of the complaint sufficient to present the problem clearly", pursuant to 
Article 6.2 of the DSU.  
 
para. 124; EC – Fasteners (China), para. 598; and US – Countervailing and Anti -Dumping Measures (China),  
para. 4.8). 
53 Appellate Body Report, Korea – Pneumatic Valves , para. 5.31 (referring to Appellate Body Reports, 
China – HP-SST (Japan)  / China – HP-SSST (EU),  para.5.14; and Korea – Dairy , para. 139).  
54 Appellate Body Report, Korea – Pneumatic Valves , para. 5.31 (referring to Appellate Body Reports, 
China – HP-SST (Japan) / China – HP-SST (EU),  para. 5.14; and Korea – Dairy , para. 139).  
55 Appellate Body Report, Korea – Pneumatic Valves , para. 5.8.  WT/DS524/R/Add.1  
 
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  4 CONCLUSION  
4.1. Accordingly, the Panel concludes that the claim under Article 6.1 of the SPS  Agreement, with 
respect to the alleged failure to adapt Costa Rica's measures to the phytosanitary characteristics of 
the area from which the product originated , falls outside the Panel's terms of reference.  
4.2. This preliminary ruling will become an integral part of the Panel's report, subject to any 
elaboration of the reasoning in the Panel's report.  
__________