WT/DS461/19  
2 March  2017 
(17-1257) Page: 1/3 
 Original:  Spanish  
 
  COLOMBIA – MEASURES RELATING TO THE IMPORTATION  
OF TEXTILES, APPAREL AND FOOTWEAR  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY COLOMBIA  
REQUEST FOR CONSULTATIONS  
The following communication, dated 2 7 February  2017, from the delegation of Colombia to the 
delegati on of Panama and to the Chairperson of the Dispute Settlement Body, is circulated in 
accordance with Article  21.5 of the DSU.  
 
_______________  
 
 
Pursuant to Articles 21.5 and 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disput es (DSU) and Article XXII of the General Agreement on Tariffs and Trade 1994 
(GATT 1994), my authorities have instructed me to request consu ltations with the Government 
of Panama regarding the existence of measures taken to comply with the recommendations and 
rulings of the Dispute Settlement Body in the dispute Colombia – Measures Relating to the 
Importation of Textiles, Apparel and Footwear (DS461).  
 
Colombia takes the view  that Arti cle 21.5 of the DSU is silent with respect to the obligation to 
request c onsultations under Article 4 of the DSU . Consequently, such consultations cannot be 
interpreted as a mandatory procedural remedy, the less so since in the present case, Panama 
initiated proceedings for the suspension of the application of concessions or ot her obligations 
to Colombia in the absence of any determination as to  Colombia's  compliance with the 
recommendations and rulings of the DSB or of nullification or impairment affecting Panama.  
 
Consequently, Panama's as sertions before  the Dispute Settlement  Body on 2 0 February  of this 
year, which I shall revert to in this document, place Colombia in the difficult situation of having to 
request these consultations in the aforementioned terms in spite of the interpretation referred to 
earlier, aware of the nee d to stress its good faith in these proceedings while at the same time 
avoiding the procedural and contentious hurdles posed by the opposing party.  
 
Indeed, as  notified by Colombia to the WTO, the measure examined in this dispute ceased to exist  
as of 2 November  2016. Since that date, Colombia has not applied compound tariffs to imports of 
apparel  and footwear, and the tariffs expressed in ad valorem terms that Colombia  now applies do 
not exceed  the bound level in its schedule . 
 
Pursuant to Article 4.4 of t he DSU, I shall proceed to describe the reasons for this request, 
including identification of the measure at issue and an indica tion of the legal basis for 
the complaints : 
 
On 22 June 2016, the DSB adopted the Appellate Body Report and the Panel Report (as  modified 
by the Appellate Body) in the dispute Colombia – Measures Relating to the Importation of Textiles, 
Apparel and Footwear  (DS461).  
 
The DSB found, for imports of products classified in Chapters 61, 62, 63 and 64 (except for 
heading 64.06 but includ ing tariff line 6406.10.00.00) of Colombia's Customs Tariff, that in the 
instances identified in the Panel Report, the compound tariff exceeded the bound tariff rate in WT/DS461/19  
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  Colombia's Schedule of Concessions, and was therefore inconsistent with Article II:1(a)  and (b) of 
the GATT 1994.  
 
The DSB also found that although the measure at issue was "designed" to protect public morals in 
Colombia within the meaning of Article XX(a) of the GATT 1994, Colombia had failed to 
demonstrate that the compound tariff was a me asure "necessary to protect public morals" within 
the meaning of Article XX(a) of the GATT 1994 . Similarly, the DSB found that although the 
measure at issue was "designed" to secure compliance with laws or regulations which are not 
inconsistent with the GA TT 1994, namely, Article 323 of Colombia's Criminal Code, within the 
meaning of Article XX(d) of the GATT 1994, Colombia had not demonstrated that the compound 
tariff was a measure "necessary to secure compliance with laws or regulations which are not 
inconsistent" with the GATT 1994, within the meaning of Article XX(d) of the GATT 1994.  
 
Colombia replaced the compound tariff with an ad valorem  tariff that does not exceed Colombia's 
WTO bound tariffs, and in that sense, it has brought t he measure subject to  the 
DSB's  recommendations into compliance with its WTO obligations . However, Panama does not 
agree with Colombia that Decree 1744 replacing the compound tariff is consistent with the covered 
agreements and brings Colombia into compliance with the GATT 199 4. 
 
Decree 1744 of 2 November  2016 was issued by the Colombia Government in order to modify the 
tariffs applicable to imports of products classified in Chapters 61, 62 and 63 of the Customs Tarif f, 
and certain items in Chapter  64. 
 
This Decree  sets an ad valorem  MFN tariff of 40 % for imports of products classified in Chapters  61 
and 62 of the Customs Tariff of the Republic of Colombia when the declared f.o.b. import price is 
less than or equal to ten (10) US dollars per gross kilogram . This tariff is equal to the bound 
tariff in Colombia's Schedule LXXVI, Part I - Most-Favoured -Nation Tariff, Section II - Other 
Products, annexed to the GATT 1994 . In cases where the import price for these products exceeds 
ten (10) US dollars, the MFN tariff will be as provide d in Decree 4927 of 2011 or any amending 
decree, containing the Customs Tariff of the Republic of Colombia, and as such neither of the two 
mentioned levies will exceed Colombia's bound tariffs.  
 
As regards imports of products classified under tariff headin gs 6401, 6402, 6403, 6404 and 6405 
of the Customs Tariff of the Republic of Colombia, an MFN tariff of 35 % ad valorem  is 
applied  when the declared f.o.b. import price is less than or equal to pric es that vary 
between  six (6) US  dollars and ten (10) US doll ars per pair, in accordance with the said Decree . 
For imports of products classified under subheading 6406.10.00.00, an MFN tariff of 35 % 
ad valorem  will be applied when the declared f.o.b.  price is less than or equal to five (5) US dollars 
per gross kilog ram. These tariffs are equal to the tariff bound in Co lombia's Schedule LXXVI, 
Part I - Most-Favoured -Nation Tariff, Section II - Other Products, annexed to the GATT 1994 . In 
cases where the import price for these products exceeds the above -mentioned price s, the MFN 
tariff w ill be as provided in  Decree 4927 of 2011 or any amending decree, and as such neither of 
the two mentioned levies will exceed Colombia's bound tariffs.  
 
For imports of the other products that were covered by the compou nd tariffs introduc ed by 
Decree  456 of 2014, including the products classified in Chapter 63 of the Customs Tariff and 
those classified under the headings of Chapter 64 not mentioned above, the applicable tariff, as 
from 2 November , is the MFN ad valorem  tariff set forth in Decree 4927 of 2011 or any amending 
decree, and as such it will not exceed Colombia's bound tariffs.  
 
As indicated in document WT/DS461/17, Colombia was obliged to request the establishment of a 
panel because Panama requested authorization to suspend the a pplication to Colombia of 
concessions or other obligations without fir st referring the matter to the p anel under Article 21.5 . 
Moreover , on several occasions Colombia urged Panama to conclude a sequencing agreement, 
something which Panama has thus far refu sed to do.  
 
Colombia regrets that at the DSB meeting of 20 February  2017, Panam a opposed the 
establishment of a panel under Article 21.5 of the DSU, arguing that there had been no 
consultations . Certain Members described Panama's opposition as inappropriat e in that it 
prevented the establishment of a panel in these proceedings based on the premise that there had 
been no request for consultations by Colombia . Other Members qualified it as a procedural remedy 
that was contrary to Article 3.10 of the DSU in th at it reflected  a contentious strategy that sought WT/DS461/19  
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  to block Colombia's right to demonstrate its compliance with the recommendations and rulings of 
the DSB.1 
 
As already mentioned, this request is without prejudice to Colombia's position that the holding of  
consultations prior to the establishment of a panel under Article 21.5 of the DSU is not a 
prerequisite  when, as in this case, the complainant refuses to initiate proceedings under that 
provision in circumstances in which there is disagreement as to the e xistence or consistency with a 
covered agreement of measures taken to comply with the recommendations and rulings . It is also 
without prejudice to Colombia's position that even if they were necessary, Colombia and Panama 
have held extensive consultations o n this matter and on Decre e 1744.2 
 
I look forward to your reply to this request for consultation . I propose that they be held in Geneva, 
Switzerland, on  1, 2 o r 3 March  2017, on the WTO premises.  
 
__________  
                                                
1 See the minutes of the DSB meeting of 20  February 2017.  
2 For example, the meeting between the Vice Ministers of Trade of Colombia and Panama held in Bogota 
on 8 February  2017, and the constant telephone communication at that level between the capitals. 
Furthermore, on 9  February  2017, the Ministers of Foreign Affairs and the Minister s of Trade of the 
two countries met in Cartagena to hold consultations on this matter. Finally, on 22  February  2017 Colombia 
formally submitted to Panama a proposal for a sequencing agreement, recognizing the specificitie s of the 
current situation in the dispute, a proposal to which Panama has not responded.