WT/DS457/8  
 
1 April 2015  
(15-1816)  Page: 1/3  
  Original: English  
 
 PERU – ADDITIONAL DUTY ON IMPORTS OF 
CERTAIN AGRICULTURAL PRODUCTS 
NOTIFICATION OF AN OTHER APPEAL BY GUATEMALA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following communication, dated 30 March 2015, from the delegation of Guatemala, is being 
circulated to Members.  
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 Pursuant to Article 16.4 and 17 of the Understa nding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 23(1) of  the Working Procedures for Appellate Review, 
Guatemala hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report on Peru – Additional Duty on Imports of Certain Agricultural Products 
(WT/DS457/R), which was circulated on 27 November 2014 (the "Panel Report"). Pursuant to 
Rule 23(3) of the Working Procedures for Appellate Review, Guatemala is simultaneously filing this 
Notice of Other Appeal and its Other Appellant's Submission with the Appellate Body Secretariat.  
Guatemala appeals the Panel's finding on paragraphs 7.370, 7.371 and 8.1(c) of the Panel Report 
that the duties resulting from Peru's Price Rang e System ("the measure at issue") does not fall 
within the category of "minimum import prices … and similar border measures" prohibited under 
Article 4.2 and footnote 1 of the Agreement on Agriculture.
1 
 Guatemala seeks review by the Appellate Body of the following errors of law by the Panel in the 
Panel Report:  
 I.  The Panel erred in applying an excessively  narrow legal standard to define measures 
that constitute a minimum import price within the meaning of Article 4.2 and footnote 1 
of the Agreement on Agriculture  
 1. The Panel erred in law in concluding that the measure at issue was not a minimum import 
price because it was not applied by reference to the actual transaction value of each shipment of 
imports. In reaching this finding, the Panel applied an excessively narrow legal definition of "minimum import prices" within the meaning of Article 4.2 and footnote 1 of the Agreement on 
Agriculture.  
2. Nothing in the definitions used by the panels and the Appellate Body in the Chile – Price 
Band System  disputes implies that the concept of minimum import price includes only measures 
that are applied with respect to the actual transaction value of each shipment.  
3. The reference price of Peru’s Price Range System ("PRS") is designed to operate as a 
substitute or proxy for the typical transaction value of any given shipment. In this sense, the reference price and the manner in which it is calculated, ensures that the floor price functions as a 
                                               
1 The Panel's errors in law are contained inter alia  in paragraphs 7.360, 7.361, 7.366-7.371 and 8.1(c) 
of the Panel Report. In accordance with Rule 23(2)(c)(ii)(C) , the foregoing is an indicative list of the 
paragraphs of the Panel report containing the alleged errors. WT/DS457/8 
 
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  true minimum import price, even if the PRS does not operate directly by reference to actual 
transaction values of individual shipments.  
4. The Panel improperly rejected Guatemala's argu ment that the measure at issue constitutes 
a minimum import price even if it does not in ev ery instance equalize entry prices with the floor 
price. The essential legal character of the measure does not change even if it does not achieve its 
purpose in every instance. 
II.  The Panel erred in finding that the measure at issue is not a minimum import price 
despite the existence of an implicit minimum threshold  
 5. The Panel’s finding that the measure at issue does not constitute a minimum import price 
failed to consider that the measure's design, structure and operation gives rise to an implicit 
minimum price threshold. This threshold consists of  the sum of the lowest transaction price of the 
previous fortnight and the duty resulting from the PRS.  
6. Even though, in certain instances, the final entry value of an imported product may not 
reach the floor price, it will always reach or exceed the alternative implicit threshold. It is highly 
unlikely that a shipment will arrive in Peru at a price lower than the lowest price observed in the international reference market designated by Peru's legislation.  
7. The Panel also incorrectly equated the effects of the implicit threshold with those produced 
by ordinary customs duties in the form of a specific tariff. The implicit threshold contained in the measure at issue affords a specific type of protection not afforded by ordinary specific duties. As acknowledged by the Panel, the PRS has the decl ared objective of being a "stabilization and 
protection mechanism that serves to neutralize fluctuations in international prices and limit the 
negative effects of falls in such prices".
2 Unlike the implicit threshold of Peru's measure, the 
threshold generated by a specific duty does not re spond to changes in world prices of a particular 
commodity. Additionally, while the implicit threshold is inherently linked to the lowest transaction 
of the previous fortnight, any ordinary specif ic duty would lack any such characteristic.  
III.  The Panel erred in conflating the legal standard for minimum import prices with  
the legal standard for measures "similar" to minimum import prices  
 8. The Panel conducted a legally incorrect analysis of whether the measure was "similar" to a 
minimum import price within the meaning of foot note 1 of the Agreement on Agriculture. The 
Panel's reasons for finding that the measure at issue is not similar  to a minimum import price are 
essentially the same as those for finding that the measure is not a minimum import price. The Panel thus conflated two related but different legal concepts: a minimum import price and a 
measure similar to a minimum import price.  
9. Under the Panel's legal interpretation, a measure could only be "similar" to a minimum 
import price if, in effect, it is a minimum import price.  
10. By using a definition of "similar" that was the same as the definition used for minimum 
import prices, the Panel failed to give effect to the concept of "similar" measures in the context of footnote 1 to Article 4.2 of the Agreement on Agriculture.  
IV.  The Panel erred in finding that Peru's measure is not similar to a minimum import 
price because it does not impede imports from  entering Peru at a price below a certain 
threshold   
11. The Panel erred in finding that the measure at issue is not similar to a minimum import price 
because it does not impede imports from entering the Peruvian market at prices below a certain threshold.  
12. Contrary to the Panel's conclusion, the design, structure and operation of the measure at 
issue shows the existence of an explicit threshold,  which is the floor price itself. The floor price 
                                               
2 Panel Report, para. 7.317(a). WT/DS457/8 
 
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  acts as a true threshold because it operates on the basis of a reference price, which is calculated in 
a manner that mimics the value of actual transactions. 
13. The measure at issue also contains an implicit threshold, which consists of the lowest 
transaction of the previous fortnight plus the addi tional duties generated by the PRS. Even if, in 
certain limited cases, the application of the additional duties fails to elevate the price to the level 
of the floor price, those shipments will not enter th e Peruvian market below the alternative implicit 
threshold.  
*** 
 For the above reasons, the Panel erred in law in finding that the measure at issue is neither a minimum import price nor a measure similar to an import price within the meaning of Article 4.2 
and footnote 1 of the Agreement on Agriculture.  Guatemala, therefore, requests the Appellate 
Body to reverse the Panel’s finding contained in paragraphs 7.370, 7.371 and 8.1 (c) of the Panel Report.  
 
Additionally, Guatemala requests that the Appellate Body complete the legal analysis and find that 
the measure at issue is inconsistent with Article 4.2 of the Agreement on Agriculture because it is 
either a minimum import price or a measure si milar to a minimum import price. The factual 
findings contained in the Panel Report, as well as the undisputed facts on the record, constitute a sufficient basis to conclude that the measure at issue is a minimum import price or a measure similar to a minimum import price. 
 
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