WORLD TRADE  
ORGANIZATION  G/SG/Q1/PAN/3 
27 October 2009 
 
 (09-5338) 
Committee on Safeguards Original:   Spanish 
  
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLE 12.6 OF THE AGREEMENT 
 
Replies to the Questions Posed by the UNITED STATES
1 
Regarding the Notification of PANAMA2 
 
  The following communication, dated 16 October 2009, is being circulated at the request of the delegation of Panama.  
_______________ 
 
Question 1
 
 
 Is the WTO Agreement on Safeguar ds (the Agreement on Safeguards) 
self-implementing under Panamanian law?  Assumi ng that the Agreement is self-implementing, 
in the event of a conflict between the Agreement and the Executive Decree , which legal authority 
takes precedence? 
 
Reply  
 
 Article 4 of the Constitution of Panama states that the Republic of Panama abides by the rules 
of international law;  all Panamanian legisl ation governing issues covered by the Agreement on 
Safeguards must therefore be consistent with this supranational instrument.  This is the case of the 
Executive Decree, which is in conformity with the ag reements signed in respect of trade safeguards.  
In the event of a conflict between the Agreem ent on Safeguards and the Executive Decree, the 
Agreement takes precedence given that it is a supr anational instrument, to which Panama is a 
signatory party. 
 
Question 2  
 
 Article 32(e) (Investigation period ) states that the period for gathering data with respect 
to increased imports would normally be three yea rs but could be as short as 12 months.  Please 
explain the circumstances under which Panama migh t collect data on increased imports for a 
period of less than three years. 
 
Reply  
 
 In situations where the party from which data need to be gathered has existed for a shorter 
period.  
                                                     
 
1 G/SG/Q1/PAN/2. 
2 G/SG/N/1/PAN/2/Suppl.1. G/SG/Q1/PAN/3 
Page 2  
 
  Question 3
 
 
 Article 34 (Examination of similarity ) states that Panama will compare the imported 
and domestic products to decide which parties qualify as interested parties.  Please explain how 
Panama will undertake such a comparison early in the investigation and ensure that 
interested-party status is appropriately grante d to foreign producers and exporters and other 
entities requesting such status, particularly if only limited information is available during the 
early stages of an investigation.  This situation m ay arise, for example, if the tariff classification 
of the imported product depends on cu stoms rulings or is otherwise unclear. 
 Reply
 
  Panama will undertake such a comparison on the basis of the relevant evidence available for 
examination at that time.  Question 4
 
 
 Article 35(b) (ix)-(x) (Determination of serious injury ) refers to decisions made using "a 
more restricted group or range of products that includes the like or directly competitive 
product". 
 
 (a) Please explain what is meant by the phrase "more restricted group or range of 
products".  Please indicate whether Panama  will seek to gather data on both the 
overall operations of the production line (or plant) and on the operations relating solely to the like or directly competitive product, or will the Investigating Authority gather data on the latter only when meaningful data on 
production line (or plant) operations are not available. 
 
Reply
 
  If the domestic industry does not have financia l data specific to the production line of the 
product under investigation, the impact of the im ports will be measured in relation to the production 
of a more restricted group or range of products th at includes the like or directly competitive domestic 
product.  The Investigating Authority is required firs t of all to verify the data on the specific product 
under investigation;  where this is not possible, the impact will be measured in relation to the 
production of a more restricted group or range of  products that includes the like or directly 
competitive domestic product. 
 
 (b) Please confirm that this restricted group of products will be clearly identified in 
public notifications, and that data in the investigatory process will refer to the 
same product and/or group of products. 
 
Reply
 
 
 All decisions and procedures adopted by the I nvestigating Authority will be underpinned by 
statutory provisions, published and made publicly available in a timely manner. 
 
Question 5  
 
 Article 40(a) (Types of safeguards ) states that the Investigating Authority, in imposing a 
safeguard measure, may take into consideration , as guidance, the difference in prices between 
the weighted average import price of the import ed product and the highest price of the like or 
directly competitive domestic pr oduct for local consumption.  G/SG/Q1/PAN/3 
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 (a) Please explain how taking into co nsideration such a difference would be 
consistent with Article 5.1 of the WTO Safeguards Agreement, which states that a measure should be applied "only to the extent necessary to prevent or remedy 
serious injury and to facilitate adjustment". 
 
Reply
 
  Article 40(a) states that the difference in pri ces between the weighted average import price of 
the imported product and the highest price of the like or directly competitive domestic product for 
local consumption may be taken into  consideration only as guidance with a view to ensuring that the 
tariff modification increases the tariff to a le vel that prevents or remedies the injury. 
 
 (b) Please explain how Panama would add ress the second part of the requirement in 
Article 5.1, that the measure "facilitate adjustment". 
 
Reply
 
  When imposing safeguard measures, the pr ovisions of Article 5 of the Agreement on 
Safeguards must be respected in th e sense that the safeguard may be applied in the form of a customs 
duty or quantitative import restriction to the exte nt necessary to prevent or remedy injury and to 
facilitate adjustment. 
 
Question 6
 
 
 Article 45 (Access to the file) appears to limi t access to the non-confidential (public) file 
only to government officials and interested parties, as defined in Article 32(d).  
 (a) Please indicate whether there will be a public file that includes the petition and 
the various submissions of interested parties that will be open for inspection to all persons, including interested parties a nd other persons with an interest of any 
kind in the matter. 
 
Reply
 
  While the investigation is under way and in acco rdance with the relevant legal requirements, 
access to the files will only be granted to the offi cials responsible for proceedings and persons who 
demonstrate a legitimate legal interest in the inv estigation.  A non-confidentia l file containing all the 
non-confidential documents of the I nvestigating Authority and interest ed parties will be available for 
consultation in the office where the investigation is being conducted. 
 
 (b) Please indicate whether persons other than persons designated as interested 
persons under Article 32(d) will have the right to review and make copies of 
documents in that file. 
 
Reply
 
  Persons wishing to gain access to the file will ha ve to demonstrate a legitimate interest in the 
investigation in order to be accredite d as an interested party thereto. 
 G/SG/Q1/PAN/3 
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  Question 7
 
 
 Article 49 (Professional representation ) states as follows:  "Pursuant to Article 50 of 
Law No. 38 of 2000, any action by parties in administrative proceedings on trade safeguards shall be through a competent attorney … ". 
 
 (a) Please explain what is meant by th e term "competent attorney" and describe 
any special qualifications that such a person must have to obtain such status. 
 
Reply
 
 
 In order to practise in Panama, attorneys mu st fulfil certain legal requirements and hold a 
pertinent certificate of competency issued by Panama's Supreme Court of Justice.  
 (b) Please indicate whether only persons, fi rms, or associations that have hired a 
"competent attorney" are eligible to part icipate in a safeguard proceeding as an 
interested party. 
 
Reply
 
  Persons, firms and associations  wishing to participate in pro ceedings on trade safeguards are 
required to do so through a competent attorney. 
 
 (c) Please describe the "actions" or func tions that may be performed only by a 
"competent attorney" and indicate wh ether the "competent attorney" must 
prepare and/or sign or certify all docume nts submitted by an interested party in 
the proceeding. 
 
Reply
 
  The attorney is responsible for representing th e interested parties in proceedings on trade 
safeguards and for submitting all the documentation necessary for the full exercise of the powers 
conferred upon him. 
 
Question 8
 
 
 Article 156 (Notification and public notice of the resolution)  states that the Investigating 
Authority must publish an excerpt of its resolution announcing initiation of a safeguard 
investigation either in the Gaceta Oficial  or in a national newspaper with broad distribution, 
and Article 170 (Conditions and requirements)  contains a similar requirement for publication 
of notices under that article in either the Gaceta Oficial  or a national newspaper.  However, 
Article 175 (Convening of the final hearing)  and Article 206 (Application of measures)  simply 
require publication of notices under those articles in a national newspaper. 
 
 (a) In the case of notices published under Articles 156 and 170, what criteria will the 
Investigating Authority use in deciding whether to publish a notice in the G aceta 
Oficial  or in a national newspaper? 
 Reply
 
  The Executive Decree provides that the Inves tigating Authority has the option of publishing 
notices in either the Gaceta Oficial  (Official Journal) or a national ne wspaper in order to comply with  G/SG/Q1/PAN/3 
 Page 5 
 
 
  the principles of transparency.  The choice will de pend on an evaluation of the various factors taken 
into consideration by the Investigating Authority at that time.  
 (b) How will a person with an interest in safeguard matters know where to look for 
a notice, particularly if the Investigating Authority has a choice of publication 
sites and does not follow a consistent practice in safeguard investigations? 
 
Reply
 
  Given that they relate to official proce dures, notices are published by the Investigating 
Authority in national newspapers with  broad circulation or in the Offici al Journal, which is the official 
publication medium for State administrative acts.  
 (c) Why are the publication requirements for Articles 175 and 206 different? 
 Reply
 
  The requirements differ given the nature of th e action being taken and the State entity issuing 
the administrative act.  
 (d) Will Panama also publish notices on an o fficial government website?  If so, what 
is the Internet address of that website? 
 
Reply
 
  In order to comply with the principles of pr ocedural publicity and of transparency of State 
actions, notices will be published on the Mi nistry of Trade and Industry website 
(http://www.mici.gob.pa/
). 
 
Question 9  
 
 Article 160 (Admissibility and rejection of evidence ) indicates that the Investigating 
Authority will decide what evidence is admissible and what evidence is not admissible.  
Article 161 (Period for examining evidence ) provides for furnishing the evidence within 15 days 
once it has been decided that the evidence is admissible. 
 
 (a) Please describe the procedures th e Investigating Authority will follow in 
deciding what evidence is admissible. 
 
Reply  
  The objective criteria established in Panamanian procedural legislation will be used, and all 
means of proof accepted under Panamanian law may be submitted. 
 
 (b) Please indicate what opportunities will be given to interested parties to argue for 
or against admission of particular evidence. 
 
Reply
 
 
 Parties will have all the procedural opportuni ties afforded under Panamanian legislation in 
respect of appeals for or agai nst the admission of evidence. 
 G/SG/Q1/PAN/3 
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   (c) Please indicate whether the Investigating Authority will issue written reasons 
explaining its decision to admit or reject  particular evidence, and if so, please 
indicate whether those reasons will be expl ained at the time the decision is made 
to admit or reject the evidence, or later in the report issued at the conclusion of the investigation, which sets forth the Investigating Authority's findings and 
reasoned conclusions on all pertinent issues of fact and law. 
 
Reply
 
  The Investigating Authority will state the grounds  for an administrative act that admits or 
rejects evidence. 
 
Question 10
 
 
 With regard to Article 175 (Convening of the hearing ): 
 
 (a) Please explain how this Article, which indicates that the hearing will be held 
after the evidence is submitted , is consistent with Article 174 (Object and purpose 
of the hearing ), which states that the object and purpose of the hearing "is to 
inform and hear parties to the proceed ings regarding the essential facts under 
consideration and used as a basis for the decision". 
 
Reply  
  The hearing is indeed held after the eviden ce is submitted and its purpose is to inform and 
hear parties to the proceedings regarding the essentia l facts under consideration and used as a basis for 
the decision;  the parties therefore have the oppor tunity to present their arguments and defence in 
relation to the investigation.  
 (b) Please also explain how Articles 174 and 175 are consistent with Article 3.1 of 
the WTO Safeguards Agreement, which requires that Members hold a public 
hearing or provide other appropriate means for interested parties to present 
evidence and their views. 
 
Reply
 
  Panama's legislation on trade safeguards provid es for a period for the submission of evidence 
and another period for the examination of evidence a nd is therefore in full compliance with Article 3.1 
of the WTO Safeguards Agreement given that it affo rds the parties procedural opportunities to present 
their evidence.  
 (c) Please also explain the circumstances under which a party previously designated 
as an interested party may be denied the opportunity to appear at a public 
hearing and how such a denial is co nsistent with Article 3.1 of the 
WTO Safeguards Agreement. 
 
Reply
 
 
 The Executive Decree is designe d to ensure that all parties have the opportunity to express 
their views during the investigation and to be hear d at the public hearing;  it is therefore fully 
consistent with Article 3.1 of  the WTO Safeguards Agreement. 
  G/SG/Q1/PAN/3 
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  Question 11  
 
 Article 176 (Communication of essential facts)  and Article 177 (Procedure at the 
hearing ) describe the materials that will be placed on the record of the case, and specifically 
identify the essential facts that serve as a ba sis for the determination (Article 176) and the 
transcript of the hearing (Article 177).  
 (a) Please indicate whether the parties, including parties designated as interested 
parties, will have the opportunity to subm it written information and legal briefs 
or arguments. 
 
Reply
 
  The parties designated as interested parties will have the opportunity to submit their final 
arguments in writing. 
 
 (b) If so, when will they have that opport unity and will those submissions be part of 
the record of the investigation and be  taken into account in making the 
determination? 
 
Reply
 
 
 Article 178 of the Executive Decr ee states that, after the hearing has been concluded and the 
recording referred to in Article 177 has been incorpor ated into the file, the interested parties will be 
given the period of three (3) working days provided in Article 73 of Decree Law No. 7 of 2006 in which to submit their final arguments in defence of  their interests and to express their opinions.  
These final arguments are required to be submitte d in writing and also by electronic means. 
 
 (c) Please also indicate whether the final arguments of the interested parties, 
described in Article 178 (Presentation of final arguments
), will be part of the 
record and considered in making the determination. 
 Reply
 
  The final arguments will be included in the reco rd and will be considered by the Investigating 
Authority in the corresponding recommendation.  Question 12
 
 
 Article 179 (Definitive determination ) authorizes the National Director for the 
Implementation of Treaties and Safeguarding Trad e to extend the time-limit for making a final 
determination. 
 
 (a) Please indicate how long the final d ecision may be extended and whether such a 
decision may be extended more than once. 
 
Reply  
 
 The time-limit may be extended by the National Director for the Administration of Treaties 
and Safeguarding Trade at the request of the Dire ctor for Safeguarding Trade in the light of the 
special conditions applicable to each investiga tion so that its decision is properly presented. 
 G/SG/Q1/PAN/3 
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   (b) Please indicate how a decision to exte nd the time-limit for the final decision will 
be communicated to the interested parties. 
 
Reply
 
 
 The Investigating Authority will publish a d ecision to extend the time-limit for the final 
decision on the Ministry of Trade and Industry website.  
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