WT/DS461/28  
 
22 November 2018  
(18-7363) Page: 1/4 
  Original: English  
 
COLOMBIA – MEASURES RELATING TO  THE IMPORTATION  
OF TEXTILES, APPAREL  AND FOOTWEAR  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY C OLOMBIA  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY P ANAMA  
NOTIFICATION OF AN A PPEAL BY PANAMA UNDER ARTICLE 16.4 AND ART ICLE 17  
OF THE UNDERSTANDING ON RUL ES AND PROCEDURES GOVER NING  
THE SETTLEMENT OF DI SPUTES (DSU), AND UN DER RULE 20(1)  
OF THE WORKING PROCE DURES FOR APPELLATE REVIEW  
The following communication, dated 20 November  2018, from the delegation of Panama , is being 
circulated to Members.  
 
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Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, Panama 
hereby notifies the Dispute Settlemen t Body of its decision to appeal to the Appellate Body certain 
issues of law and legal interpretations covered in the Panel Report entitled Colombia - Measures 
Relating to the Importation of Textiles, Apparel and Footwear (Recourse to Article 21.5 of the D SU 
by Panama and Colombia)  (DS461), which was circulated on 5 October 2018 (the "Panel Report"). 
Pursuant to Rules 20(1) and 21(1) of the Working Procedures for Appellate Review, Panama is 
simultaneously filing this Notice of Appeal and its Appellant Submi ssion with the Appellate Body 
Secretariat.  
On the basis of the grounds of appeal elaborated in its submission to the Appellate Body, Panama 
requests the Appellate Body to modify or reverse legal interpretations leading to the legal findings 
and conclusions  of the Panel, as well as to complete the legal analysis as appropriate, with respect 
to the following errors contained in the Panel Report .1 
I. THE PANEL'S FINDI NGS AND CONCLUSIONS UNDER ARTICLE XI:1 O F THE GATT 1994  
a. The Panel laid out a legal standard of Article XI:1 that is inconsistent with this 
provision and is irrelevant for the resolution of this dispute  
The Panel erred in finding that certain types of measures cannot be prohibited by Article XI:1 of the 
GATT 1994. The Panel arrived at thi s conclusion by setting out a legal standard that is intrinsically 
contradictory through an interpretative process that was not conduc ted in accordance with 
Articles  3.2 and 11 of the DSU. Moreover, the Panel addressed issues that were not relevant for the  
resolution of this dispute, but which nonetheless adversely affected the manner in which the Panel 
approached some of Panama's claims.  
Panama, therefore, requests the Appellate Body to reverse, or to declare moot and of no legal effect, 
the Panel's findin gs in paragraph 7.169 of the Panel Report.  
                                                
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice  of Appeal 
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Panama 's right to refer to other par agraphs of the Panel Report in the context of its appeal.  WT/DS461/28  
 
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  b. The Panel erred in its assessment of whether the specific guarantee is inconsistent 
with Article XI:1 of the GATT 1994  
The Panel erred in rejecting Panama's claim that Colombia's specific guarantee as set out in Article  7 
of Decree No. 2218, is a costly and burdensome requirement that is inconsistent with Article XI:1 of 
the GATT 1994. The Panel imposed a special standard of proof for challenging so -called "permissible 
measures", which has no basis in that prov ision, and, in any event, was not properly explained. The 
Panel also relied on a legal standard that has no basis in Article XI:1 of the GATT 1994, i.e. "routine 
costs inherent in the import process". In the alternative, even if this legal standard was cor rect, the 
Panel failed to apply it to the facts of the case. Moreover, contrary to Article 11 of the DSU, the Panel 
erred in finding that there was no evidence on the record provided by Panama to examine whether 
the specific guarantee causes limiting effec ts on imports, and that the examples provided by the 
parties were "contradictory". The Panel also erred in accepting Colombia's cost -related information 
at face value and in making rulings on a claim that Panama did not make, i.e. that the "duration" of 
the guarantee was "excessive" and limited imports.  
The Panel further erred in rejecting Panama's claim that the specific guarantee is an arbitrary import 
requirement that is inconsistent with Article XI:1 of the GATT 1994. The Panel failed to address 
Panama 's argument that the specific guarantee is baseless. It relied on a priori  considerations 
unrelated to the relevant standard under Article XI:1 of the GATT 1994 . Moreover, contrary to 
Article  11 of the DSU, the Panel's conclusion that Panama failed to demo nstrate a lack of 
proportionality of the coverage of the specific guarantee in relation to the obligations it seeks to 
secure is also baseless. Finally, the Panel failed to conduct an o bjective assessment of 
Panama's  argument that the arbitrariness of the specific guarantee was more exacerbated in cases 
where the importer had already posted a general guarantee.  
Panama, therefore, requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.195 (second sentence), 7.200, 7.206,  7.209 -7.212, 7. 232-7.233 as well as 
paragraphs  7.235-7.238 of the Panel Report.  
Furthermore, Panama also requests the Appellate Body to complete the legal analysis and to find 
that the specific guarantee is inconsistent with Article XI:1 of the GATT 1994 because it is a 
burdensome and arbitrary requirement that imposes limiting conditions on imports. Panama explains 
in its Appellant Submission the factual findings or undisputed facts on the record that may enable 
the Appellate Body to complete the legal an alysis.  
c. The Panel erred in its assessment of whether the special import regime is 
inconsistent with Article XI:1 of the GATT 1994  
The Panel failed to assess the operation of the different elements of the special import regime 
collectively, and in its as sessment of the individual elements of the regime, the Panel relied on 
considerations that are extraneous to the applicable standard under Article XI:1 of the GATT 1994. 
Moreover, contrary to Article 11 of the DSU, the Panel did not engage with Panama's ar guments and 
evidence on the individual elements of the special import regime – the documentary requirements, 
the requirement that the importer or its legal representative must be present during the customs 
inspection, the penalties contemplated in the regi me - and failed to provide reasoned and adequate 
explanations thereon.  
Panama, therefore, requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.302 -7.303, 7.309, 7.338 -7.340, 7.344 -7.346 of the Panel Report.  
Furthermo re, Panama also requests the Appellate Body to complete the legal analysis and to find 
that the special import regime violates Article XI:1 of the GATT 1994 because the combined 
operation of its elements imposes limiting conditions on imports based on the certain undisputed 
facts and Panel's findings, as explained in Panama's Appellant Submission.  
d. The Panel ignored its previous findings and Colombia's admission about the 
restrictive nature of the specific guarantee and the special import regime  
Panama n oted that the trade -restrictive effects of the challenged measures were facts that were 
recognized by the Panel itself, admitted by Colombia, and argued by Panama. By failing to address WT/DS461/28  
 
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  this issue in its analysis under Article XI:1 of the GATT 1994, the Pa nel failed to comply with its duty 
to conduct an objective assessment of the matter under Article 11 of the DSU.  
Panama, therefore, requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.237 -7.238 and 7.345 -7.346 of the  Panel Report.  
II. THE PANEL'S FIND INGS AND CONCLUSIONS  UNDER ARTICLE X:3(A ) OF THE 
GATT  1994  
a. The Panel interpreted incorrectly the legal standards of "uniform" and "reasonable" 
administration under Article X:3(a) of the GATT 1994  
The Panel erred in int roducing novel legal standards for assessing "uniformity" and "reasonableness", 
blurring the distinction between these two principles. Panama, th erefore, requests the 
Appellate  Body to reverse the Panel's findings and conclusions in paragraphs 7.467 -7.469,  7.564, 
7.566, 7.577, as well as paragraph 7.584 of the Panel Report.  
b. The Panel erred in its assessment of whether the specific guarantee is inconsistent 
with Article X:3(a) of the GATT 1994  
The Panel erred in finding that it was not unreasonable to re quire the establishment of the specific 
guarantee from importers that had posted a general guarantee. The Panel applied an incorrect legal 
standard to the facts, and, as a result, failed to address Panama's arguments. The Panel also failed 
to provide reaso ns to support its findings and conclusions.  
Panama, therefore, requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.457 -7.458, 7.462 -7.463, and 7.476 of the Panel Report.  
Furthermore, Panama also requests the Appella te Body to complete the legal analysis and to find 
that the specific guarantee is applied unreasonably, contrary to Article X:3(a) of the GATT 1994, 
based on certain undisputed facts and the Panel's findings that are explained in Panama's Appellant 
Submiss ion.  
c. The Panel erred in its assessment of whether the special import regime is 
inconsistent with Article X:3(a) of the GATT 1994  
Contrary to Article 11 of the DSU, the Panel failed to provide reasons as to why Panama failed to 
demonstrate that certain documentary and certification requirements were being applied 
unreasonably. Moreover, the Panel erred in finding that the rigidity of the penalties imposed by 
Decree No. 2218 did not result in unreasonable administration. The Panel also committed legal err or 
by treating Panama's challenge as an "as applied" challenge as opposed to an "as such" challenge, 
and by failing to engage with Panama's argument that there were not sufficient safeguards to protect 
the confidentiality of commercially sensitive informat ion.  
Panama, therefore, requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.549, 7.552, 7.558 -7.560, 7.564 -7.566, 7.574 -7.575, 7.577, as well as paragraph 
7.584 of the Panel Report.  
III. THE PANEL'S FIN DINGS AND CON CLUSIONS UNDER ARTIC LE 13 OF THE CVA  
The Panel erred in finding that the specific guarantee set out in Article 7 of Decree No. 2218 is not 
inconsistent with Article 13 of the CVA. The Panel failed to provide appropriate meaning to the term 
"sufficient" gu arantee in Article 13. The Panel further erred in finding that the coverage of the specific 
guarantee could be established on the basis of potential penalties that have not been detected. 
Panama, therefore, requests the Appellate Body to reverse the Panel' s findings and conclusions in 
paragraphs 7.635, 7.636, 7.641, as well as paragraph 7.644 of the Panel Report.  
Furthermore, Panama also requests the Appellate Body to complete the legal analysis and to find 
that the specific guarantee, as set out in Article 7 of Decree No. 2218, and with respect to products 
falling under HS Chapters 61, 62, 63, and HS headings 6401 , 6402, 6403, 6404, 6405 and WT/DS461/28  
 
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  6406.10.00.00, is inconsistent with Article 13 of the CVA based on certain undisputed facts and 
factual findings that are explained in Panama's Appellant Submission.  
Panama notes that the above grounds of appeal are without pr ejudice to the arguments developed 
in Panama's Appellant's Submission.  
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