WORLD TRADE  
ORGANIZATION  WT/DS366/13 
2 October 2009 
 (09-4614) 
 Original:   English 
  
 
     
 
    
 
     
COLOMBIA – INDICATIVE PR ICES AND RESTRICTIONS 
ON PORTS OF ENTRY 
 
  
ARB-2009-1/25 
 
 
    
Arbitration 
under Article 21.3(c) of the 
Understanding on Rules and Procedures 
Governing the Settlement of Disputes 
 
 
 
    
Award of the Arbitrator 
Giorgio Sacerdoti 
  WT/DS366/13 
 Page i 
 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Parties....................................................................................................... ......3  
A. Colombia....................................................................................................................... .3 
1. Proposed Means of Implementation .................................................................4  
(a) Indicative Prices...................................................................................4  
(b) Restriction on Ports of Entry ...............................................................6  
2. "Particular Circumstances" ...............................................................................8  
(a) Need for Legislative and Regulatory Action .......................................9  
(b) Complexity of the Measure................................................................10  
(c) Importance of the Measures in the Domestic System........................12  
(d) Developing Country Status................................................................12  
B. Panama ........................................................................................................................ 13 
1. Proposed Means of Implementation regarding Indicative Prices and 
Ports of Entry Restrictions..............................................................................15  
2. "Particular Circumstances" .............................................................................18  
(a) Need for Legislative and Regulatory Action .....................................19  
(b) Complexity of the Measure................................................................21  
(c) Importance of the Measure in the Domestic System .........................22  
(d) Developing Country Status................................................................22  
III. Reasonable Period of Time...................................................................................................... .23 
A. Prelimina ry Matt ers..................................................................................................... 23 
1. Procedural Issue..............................................................................................23  
2. Mandate of the Arbitrator ...............................................................................24  
3. The Measures Found to be Inconsistent by the Panel.....................................27  
B. Factors Affecting the Determination of the Reasonable Period of Time under 
Article 21.3(c) of the DSU ........................................................................................... 28 
1. Proposed Means of Implementation ...............................................................28  
(a) Colombia............................................................................................28  
(b) Panama...............................................................................................31  
(c) Analysis .............................................................................................32  
2. Particular Circumstances ................................................................................36  
(a) Need for Legislative and Administrative Action ...............................36  
(b) Complexity of Implementing Measures ............................................38  
(c) Importance of the Measure in the Domestic System .........................40  
(d) Developing Country Status................................................................42  
IV. Award.......................................................................................................................... ..............43  
 WT/DS366/13 
Page ii  
 
CASES CITED IN THIS AWARD 
 
Short Title Full Case Title and Citation 
Argentina – Hides and Leather 
(Article 21.3(c))  Award of the Arbitrator, Argentina – Measures Affecting the Export of Bovine 
Hides and Import of Finished Leather – Arbitration under Article 21.3(c) of the 
DSU , WT/DS155/10, 31 August 2001, DSR 2001:XII, 6013 
Australia – Salmon 
(Article 21.3(c))  Award of the Arbitrator, Australia – Measures Affecting Importation of Salmon  
– Arbitration under Article 21.3(c) of the DSU , WT/DS18/9, 23 February 1999, 
DSR 1999:I, 267 
Brazil – Retreaded Tyres 
(Article 21.3(c)) Award of the Arbitrator, Brazil – Measures Affecting Imports of Retreaded 
Tyres – Arbitration under Article 21.3(c) of the DSU , WT/DS332/16, 29 August 
2008 
Canada – Pharmaceutical 
Patents (Article 21.3(c))  Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical Products 
– Arbitration under Article 21.3(c) of the DSU , WT/DS114/13, 18 August 2000, 
DSR 2002:I, 3 
Chile – Alcoholic Beverages 
(Article 21.3(c))  Award of the Arbitrator, Chile – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS87/15, WT/DS110/14, 23 May 2000, 
DSR 2000:V, 2583 
Chile – Price Band System 
(Article 21.3(c))  Award of the Arbitrator, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) of the DSU , WT/DS207/13, 17 March 2003, DSR 2003:III, 1237 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009 
EC – Bananas III 
(Article 21.3(c))  Award of the Arbitrator, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Arbitration under Article 21.3(c) of the DSU , 
WT/DS27/15, 7 January 1998, DSR 1998:I, 3 
EC – Chicken Cuts (Article 21.3(c)) Award of the Arbitrator, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts – Arbitration under Article 21.3(c) of the DSU , 
WT/DS269/13, WT/DS286/15, 20 February 2006 
EC – Export Subsidies on 
Sugar (Article 21.3(c)) Award of the Arbitrator, European Communities – Export Subsidies on Sugar – 
Arbitration under Article 21.3(c) of the DSU , WT/DS265/33, WT/DS266/33, 
WT/DS283/14, 28 October 2005, DSR 2005:XXIII, 11581 
EC – Hormones  
(Article 21.3(c))  Award of the Arbitrator, EC Measures Concerning Meat and Meat Products 
(Hormones) – Arbitration under Article 21.3(c) of the DSU , WT/DS26/15, 
WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 
EC – Tariff Preferences 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries  – Arbitration under Article 21.3(c) 
of the DSU , WT/DS246/14, 20 September 2004, DSR 2004:IX, 4313 
Indonesia – Autos 
(Article 21.3(c))  Award of the Arbitrator, Indonesia – Certain Measures Affecting the Automobile 
Industry – Arbitration under Article 21.3(c) of the DSU , WT/DS54/15, 
WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 December 1998, DSR 1998:IX, 4029 
Japan – DRAMs (Korea) 
(Article 21.3(c)) Award of the Arbitrator, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea – Arbitration under Article 21.3(c) of the DSU , 
WT/DS336/16, 5 May 2008 
Korea – Alcoholic Beverages  
(Article 21.3(c))  Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS75/16, WT/DS84/14, 4 June 1999, 
DSR 1999:II, 937  WT/DS366/13 
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Short Title Full Case Title and Citation 
US – 1916 Act  (Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – Arbitration 
under Article 21.3(c) of the DSU , WT/DS136/11, WT/DS162/14, 28 February 
2001, DSR 2001:V, 2017 
US – Gambling 
(Article 21.3(c)) Award of the Arbitrator, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services – Arbitration under Article 21.3(c) of 
the DSU , WT/DS285/13, 19 August 2005, DSR 2005:XXIII, 11639 
US – Hot-Rolled Steel 
(Article 21.3(c))  Award of the Arbitrator, United States – Anti-Dumping Measures on Certain  
Hot-Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of the 
DSU , WT/DS184/13, 19 February 2002, DSR 2002:IV, 1389 
US – Offset Act  
(Byrd Amendment ) 
(Article 21.3(c))  Award of the Arbitrator, United States – Continued Dumping and Subsidy Offset 
Act of 2000 – Arbitration under Article 21.3(c) of the DSU , WT/DS217/14, 
WT/DS234/22, 13 June 2003, DSR 2003:III, 1163 
US – Section 110(5) Copyright 
Act (Article 21.3(c))  Award of the Arbitrator, United States – Section 110(5) of the US Copyright Act  
– Arbitration under Article 21.3(c) of the DSU , WT/DS160/12, 15 January 2001, 
DSR 2001:II, 657 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R, 
adopted 17 February 2004, DSR 2004:II, 571 
US – Softwood Lumber IV (Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to 
Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 20 December 2005, DSR 
2005:XXIII, 11357 
US – Stainless Steel (Mexico) (Article 21.3(c)) Award of the Arbitrator, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico – Arbitra tion under Article 21.3(c) of the DSU , 
WT/DS344/15, 31 October 2008 
US – Zeroing (EC) 
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/AB/RW and Corr.1, adopted 
11 June 2009 
 
 
 
 WT/DS366/13 
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DECREES AND RESOLUTIONS OF THE GOVERNMENT OF COLOMBIA  
CITED IN THIS AWARD 
 
Abbreviation Description 
Decree 403/1993 Decreto 403 del 3 de marzo de 1993 (Arbitration Exhibit COL-5) 
Decree 1071/1999 El Presidente de la República de Colombia, Decreto 1071 de 1999 
(junio 26), Diario Oficial No. 43.615 de 26 de junio de 1999 
(Arbitration Exhibit PAN-12) 
Decree 2553/1999 (Colombia's Ministry of Foreign Trade), Ministerio de Comercio 
Exterior, Decreto 2553 de 1999 (d iciembre 23), Diario Oficial 
No. 43.827 de 23 de diciembre de 1999 
Decree 2685/1999 (Colombia's Ministry of Finance), Ministerio de Hacienda y Crédito 
Público, Decreto 2685 de 1999 (diciembre 28), Diario Oficial No. 
43.834 de 30 de diciembre de 1999  (Panel Exhibit COL-1) 
Decree 210/2003 (Department of Public Administration) Departamento Administrativo 
de la Función Publica, Decreto 210 de 2003 (febrero 3), Diario 
Oficial No. 45.086 de 3 de febrero de 2003  
Decree 4669/2005 Cámara de Representantes de Colombia, Decreto 4669 de 2005 
(diciembre 21), Diario Oficial No. 46.130 de 22 de diciembre de 2005 
Decree 3303/2006 (Colombia's Ministry of Trade, Industry and Tourism), Ministerio de 
Comercio, Industria y Turism o, Decreto 3303 de 2006 
(septiembre 25), Diario Oficial No. 46.402 de 25 de septiembre de 2006  
Decree 4646/2006 (Colombia's Ministry of Finance), Ministerio de Hacienda y Crédito 
Público, Decreto 4646 de 2006 (diciembre 27), Diario Oficial No. 46.494 de 27 de diciembre de 2006 
Decree 4048/2008 (Colombia's Ministry of Finance), Ministerio de Hacienda y Crédito 
Público, Decreto 4048 de 2008 (octubre 22), Diario Oficial 
No. 47.150 de 22 de octubre de 2008 
Resolution 4240/2000 (Colombia's Directorate of Taxes and National Customs), Dirección 
de Impuestos y Aduanas Nacionales, Resolución 4240 de 2000 
(junio 2), Diario Oficial No 44.037 de 9 de junio de 2000  
(Panel Exhibit COL-2) 
Resolution 12950/2006 Dirección de Impuestos y Aduanas Nacionales, Resolución 12950 de 
2006 (octubre 30) (Arbitration Exhibit PAN-1) 
Resolution 12956/2006 Dirección de Impuestos y Aduanas Nacionales, Resolución 12956 de 
2006 (octubre 30) (Arbitration Exhibit PAN-1) 
Resolution 13034/2006 Dirección de Impuestos y Aduanas Nacionales, Resolución 13034 de 
2006 (ocubre 31) (Arbitration Exhibit PAN-1) 
Resolution 7373/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 7373 de 
2007 (junio 22), Diario Oficial No. 46.678 de 3 julio de 2007 
(Panel Exhibit PAN-34). 
Resolution 7510/2007 Replaced or modi fied by Resolution No. 11412/2007  
Resolution 7511/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 7511 de 
2007 (26 junio) (Panel Exhibit PAN-10)  WT/DS366/13 
 Page v 
 
 
Abbreviation Description 
Resolution 7512/2007 Replaced or modi fied by Resolution No. 11415/2007  
Resolution 7513/2007  Dirección de Impuestos y Aduanas Nacionales, Resolución 7513 de 
2007 (26 junio) (Panel Exhibit PAN-12) 
Resolution 7637/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 7637 de 
2007 (junio 28), Diario Oficial No. 46.681 de 6 de julio de 2007 (Panel Exhibit PAN-36) 
Resolution 11412/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 11412 de 
2007 (28 septiembre) (Panel Exhibit PAN-15) 
Resolution 11414/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 11414 de 
2007 (28 septiembre) (Panel Exhibit PAN-14) 
Resolution 11415/2007 Dirección de Impuestos y Aduanas Nacionales, Resolución 11415 de 
2007 (28 septiembre) (Panel Exhibit PAN-16)  
Resolution 457/2008 Dirección de Impuestos y Aduanas Nacionales, Resolución 457 de 
2008 (noviembre 20),  Diario Oficial No. 47.198 de 20 de noviembre 
de 2008 (Arbitration Exhibit COL-1) 
Resolution 1749/2008 Dirección de Impuestos y Aduanas Nacionales, Resolución 1749 de 
2008 (17 diciembre) (Arbitration Exhibit PAN-5)  
Resolution 5516/2009 Dirección de Impuestos y Aduanas Nacionales, Resolución 5516 de 
2009 (22 mayo) (Arbitration Exhibit PAN-4) 
Resolution 6816/2009 Dirección de Impuestos y Aduanas Nacionales, Resolución 6816 de 
2009 (30 junio) (Arbitration Exhibit PAN-6) 
Resolution 8812/2008 Dirección de Impuestos y Aduanas Nacionales, Resolución 8812 de 
2008 (17 septiembre), Diario Oficial No. 47.124 de 26 de septiembre 
de 2008 (Arbitration Exhibit PAN-3) 
 WT/DS366/13 
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ABBREVIATIONS USED IN THIS AWARD 
 
Abbreviation Description 
Andean Community 
Decision 571 Comunidad Andina, Decisión 571 – Valor en Aduana de las 
Mercancías Importadas (12 de diciembre de 2003) (published in 
Gaceta Oficial, Año XX, No. 1023 (15 de diciembre de 2003) ) (Panel 
Exhibit COL-5)  
Andean Community 
Resolution 846 Comunidad Andina, Resolución 846 (6 de agosto de 2004), 
Reglamento Comunitario de la Decisión 571 – Valor en Aduana de las Mercancías Importadas (published in Gaceta Oficial, Año XXI, 
No. 1103 (9 de agosto de 2004) ) (Panel Exhibit COL-6) 
Agreement on Customs 
Valuation  Agreement on Implementation of Artic le VII of the General Agreement 
on Tariffs and Trade 1994  
Colombia's Commercial Code Código de Comercio Colombiano,  Decreto 410 de 1971, Diario 
Oficial No. 33.339 de 16 de junio de 1971  
Constitution of Colombia Constitución Política de la Repúb lica de Colombia de 1991 
DIAN (Colombia's Directorate of Taxes and National Customs) Dirección de 
Impuestos y Aduanas Nacionales  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
GATT 1994  General Agreement of Tariffs and Trade  1994 
Law 5 of 1992 El Congreso de Colombia, Ley 5 de  1992 (junio 17), Diario Oficial 
No. 40.483 de 18 de junio de 1992 
Law 962 of 2005 Congreso de Colombia, Ley 962 de 20 05 (julio 8), Diario Oficial 
No. 46.023 de 6 de septiembre de 2005 
Panel Report Panel Report,  Colombia – Indicative Prices and Restrictions on Ports 
of Entry , WT/DS366/R and Corr.1 
Ports of entry measure Resolution 7373/2007, as amended by Resolution 7637/2007 
Triple A Committee Comité de Asuntos Aduaneros , Arancelarios y de Comercio Exterior   
WCO World Customs Organization 
 
  WT/DS366/13 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
AWARD OF THE ARBITRATOR  
   Colombia – Indicative Prices and Restrictions on Ports of Entry   
Parties 
 Colombia Panama   ARB-2009-1/25 
  Arbitrator:   Giorgio Sacerdoti 
 
 
 
I. Introduction 
1. This arbitration under Article 21.3 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (the "DSU") concerns the "r easonable period of time" for the 
implementation of the recommendations and rulings of  the Dispute Settlement Body (the "DSB") in 
the dispute Colombia – Indicative Prices and R estrictions on Ports of Entry.1  This dispute concerns 
Colombia's use of indicative prices in customs proc edures and restrictions on ports of entry available 
for imports of textiles, apparel, and footwear from Panama.    
2. On 20 May 2009, the DSB adopted2 the Panel Report, Colombia – Indicative Prices and 
Restrictions on Ports of Entry  (the "Panel Report").3  The Panel Report contained, inter alia , the 
following findings:  (i) Article 128.5 e) of Decree 2685 of 28 December 1999 ("Decree 2685/1999")4 
and Article 172.7 of Resolution 4240 of  2 June 2000 ("Resolution 4240/2000")5 issued by Colombia's 
Directorate of Taxes and National Customs ( Dirección de Impuestos y Aduanas Nacionales ) 
("DIAN"), as well as the various resolutions establis hing indicative prices, are inconsistent "as such" 
with the methods of valuation set out in Article s 1, 2, 3, 5, 6, 7.2(b), and 7.2(f) of the Agreement on 
Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (the " Agreement 
on Customs Valuation ")6;  and (ii)  Resolution 7373 of 22 June 2007 ("Resolution 7373/2007")7, as 
amended by Resolution 7637 of 28 June 20078 (the "ports of entry measu re") is inconsistent with 
                                                      
1WT/DS366.  
2WT/DS366/9.  
3WT/DS366/R and Corr.1.  
4(Colombia's Ministry of Finance) Ministerio de Hacienda y Crédito Publico, Decreto 2685 de 1999 
(diciembre 28), Diario Oficial No. 43.834 de 30 de diciembre de 1999  (Panel Exhibit COL-1). 
5(DIAN) Dirección de Impuestos y Aduanas Nacionales, Resolución 4240 de 2000 (junio 2), Diario 
Oficial No 44.037 de 9 de junio de 2000  (Panel Exhibit COL-2). 
6Panel Report, paras. 8.1 and 8.2.  
7Dirección de Impuestos y Aduanas Nacionales, Reso lución 7373 de 2007 (junio 22), Diario Oficial 
No. 46.678 de 3 julio de 2007 (Panel Exhibit PAN-34). 
8Dirección de Impuestos y Aduanas Nacionales, Resolución 7637 de 2 007 (junio 28), Diario Oficial 
No. 46.681 de 6 de julio de 2007 (Panel Exhibit PAN-36). WT/DS366/13 
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Article I.1, the first and second sentences of Article  V:2, the first sentence of Article V:6, and 
Article XI:1 of the General Agreement on Tariffs and Trade 1994  (the "GATT 1994").
9  The Panel 
further rejected Colombia's defence that the ports  of entry measure was justified under Article XX(d) 
of the GATT 1994 as a measure necess ary to secure compliance with Colombia's customs laws and 
regulations.10 
3. At the DSB meeting of 19 June 2009, Colombia  indicated its intention to implement the 
recommendations and rulings of the DSB in this dis pute and stated that it would require a reasonable 
period of time in which to do so.11  
4. On 7 July 2009, Panama informed the DSB that  consultations with Colombia had not resulted 
in an agreement on the reasonable period of time for implementation.  Panama therefore requested that such period be determined through binding arb itration, pursuant to Article 21.3(c) of the DSU.
12 
5. Panama and Colombia were unable to agree on an arbitrator as contemplated by footnote 12 
to Article 21.3(c) of the DSU.  Therefore, by le tter dated 24 July 2009, Panama requested that the 
Director-General appoint an arbitrator pursuant to the authority conferred upon him by that provision.  
The Director-General appointed me as Arbitrator on  30 July 2009, after consulting the parties.  I 
informed the parties of my acceptance of th e appointment by letter dated 3 August 2009.13  
6. Panama and Colombia have agreed that this  Award will be deemed to be an award under 
Article 21.3(c) of the DSU, notwithstanding the e xpiry of the 90-day period stipulated in that 
provision.14   
7. Colombia filed its written submission on 10 August 2009.  Panama filed its written 
submission on 17 August 2009.  An oral hearing was held on 26 August 2009.  
                                                      
9Panel Report, para. 8.5.  
10Panel Report, para. 8.7.  
11WT/DSB/M/270, para.51.  
12WT/DS366/10.  
13WT/DS366/11.  
14The 90-day period following the adoption of the Panel Report expired on 18 August 2009.  By joint 
letter dated 31 July 2009, Panama and Colombia agreed that  any award of the arbitrator in this case that is not 
made within 90 days of the adoption of the recomme ndations and rulings of the DSB shall nevertheless be 
deemed to be an award of the arbitr ator for the purposes of Article 21.3(c) of the DSU. (See WT/DS366/12)   WT/DS366/13 
 Page 3 
 
 
II. Arguments of the Parties 
A. Colombia 
8. Colombia requests that I determine the "reasona ble period of time" for implementation of the 
recommendations and rulings of the DSB in this disp ute to be 15 months from the date of adoption by 
the DSB of the Panel Report, that is, until 20 August 2010.15   
9. As a matter of principle, Colombia highlights th at "the choice of the means of implementation 
is the prerogative of the implementing Member."16  Therefore, an implementing Member has a 
"measure of discretion" in selecting the means of implementation, which includes the choice of either 
"withdrawing or modifying" the inconsistent measure.17  Thus, the view expressed by previous 
arbitrators that "the reasonable period of time ... shoul d be the shortest period possible within the legal 
system of the Member"18 must be read as a requirement to implement "the proposed new measure"19 
in the shortest period possible within that legal sy stem.  Referring to previous arbitrations, Colombia 
emphasizes that it is not within the arbitrator's ma ndate under Article 21.3(c) of the DSU to judge the 
manner in which the implementing Memb er intends to achieve compliance.20  Rather, my mandate as 
arbitrator is limited to determining whet her the proposed period is "reasonable"21 in the light of the 
type of implementation selected. 
10. Colombia also underscores that the two sets of  legislative and regulatory measures concerning 
customs control and enforcement challenged by Panama in this dispute "are related and are part of the 
on-going fight against under-invoicing, contraband,  and contraband-related money-laundering and 
drug trafficking."22  Although Colombia is examining whethe r it would be possible to implement the 
                                                      
15Colombia's submission, paras. 3, 4, 45, 65, and 115.  
16Colombia's submission, para. 23.  
17Colombia's submission, para. 22 (referring to Award of the Arbitrator, Brazil – Retreaded Tyres  
(Article 21.3(c)) , paras. 57 and 58, where the ar bitrator stated that Brazil coul d "remain within the range of 
permissible actions to comply" by lifting the import ban to remove the inconsistency with Article XI of the 
GATT 1994 or by modifying the existing ban to rectify the inconsistencies with the chapeau of Article XX (in 
turn referring to Award of the Arbitrator, Japan – DRAMs (Korea)  (Article 21.3(c)) , para. 37;  and Award of the 
Arbitrator, US – Offset Act (Byrd Amen dment) (Article 21.3(c)) , para.50)). 
18Colombia's submission, para. 23 (quoting Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , 
paras. 25 and 26).  
19Colombia's submission, para. 23. (emphasis omitted)   
20Colombia's submission, paras. 25 and 26 (referring to Award of the Arbitrator, EC – Export Subsidies 
on Sugar (Article 21.3(c)) , para. 69;  and Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , 
para. 27).  Colombia also refers to the arbitrator's statement in Brazil – Retreaded Tyres (Article 21.3(c)) , that 
his mandate related to the "time by when the implementing Member must have achieved compliance, not to the manner in which that Member achieves compliance."  Yet, the arbitrator considered that "when a Member must 
comply cannot be determined in isolation from the chos en means of implementation" and thus relates to the 
question of how a Member intends to comply. ( Ibid., para. 25 (emphasis omitted) (referring to Award of the 
Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 47))     
21Colombia's submission, para. 26.  
22Colombia's submission, para. 27.  WT/DS366/13 
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recommendations and rulings of the DSB through "a single revised measure concerning customs 
control and customs enforcement that is sufficiently effective and comprehensive"
23, Colombia 
outlines its proposed means of implementation sep arately for each of those sets of measures. 
1. Proposed Means of Implementation  
(a) Indicative Prices 
11. With respect to the provisions of Decree 2685/1999 and its main implementing regulation 
(Resolution 4240/2000) concerning the use of indica tive prices as a custom s control mechanism, 
Colombia intends to implement the DSB's recomme ndations and rulings "by revising the design and 
implementation of its customs control system base d on indicative prices to more clearly separate 
customs valuation from the legitimate right to exercise customs control."24  According to Colombia, 
this means of implementation requires time-cons uming preparation and involves a complex legal 
process that would entail the following four essential steps.  
12. First, Colombia intends to identify and eval uate whether and to what extent various 
provisions of Colombia's laws, re gulations, and administrative orders25 may be implicated by the 
DSB's recommendations and rulings and by the amendment of the indicative prices mechanism.26  In 
its analysis, Colombia will also c onsider Andean Community Decision 57127 and Andean Community 
Resolution 84628, which relate to customs control and pr ovide for the use of benchmark prices as 
control mechanisms, because Andean Community la w has direct application under Colombian law.29  
Colombia estimates that this initial identification a nd evaluation stage will take about three months to 
complete. 
13. Secondly, Colombia will examine different altern atives to amend its existing indicative prices 
system.  This will include:  an analysis of various  international norms deali ng with customs valuation 
and customs control;  a review of the experience  of other countries facing similar problems and 
whether they employ guarantee mechanisms;  an  examination of how to administer a guarantee 
                                                      
23Colombia's submission, para. 27.  
24Colombia's submission, para. 28.  
25Colombia refers specifically to Decree 2685/1999, Resolution 4240/2000, and (DIAN) Manual de 
Valoración – Orden Administrativa 0005, dated 28 December 2004. (Colombia's submission, para. 30) 
26Colombia's submission, paras. 30-32.  
27Comunidad Andina, Decisión 571 – Valor en Aduana de las Mercancías Importadas (12 de 
diciembre de 2003) (published in Gaceta Oficial, Año XX, No. 1023 (15 de diciembre de 2003) ) (Panel Exhibit 
COL-5).   
28Comunidad Andina, Resolución 846 (6 de agosto de 2004), Reglamento Comunitario de la Decisión 
571 – Valor en Aduana de las Mercancías Importadas (published in Gaceta Oficial, Año XXI, No. 1103 (9 de 
agosto de 2004) ) (Panel Exhibit COL-6). 
29Colombia's submission, para. 30.   WT/DS366/13 
 Page 5 
 
 
system based on cash deposits;  and an evaluation of  whether a generalized system of advance import 
declaration can be introduced.  Colombia propos es to examine the WTO-consistency of different 
alternatives and the practices of the World Custom s Organization (the "WCO") on customs valuation 
and customs control.  Colombia also intends to co nsult with various stakeholders in the Colombian 
public and private sectors dealing with, and suffering from, illegitimate trade.30  Subsequently, the 
DIAN will elaborate specific drafting proposals for "a mechanism of customs control that is in line 
with Colombia's international oblig ations, based on international prac tice, and which is effective in 
combating the persistent problem of under-invoicing and contraband."31  Colombia expects that this 
stage of implementation will take six to nine months.   
14. Thirdly, Colombia would implement the new measure into its computerized system of 
customs administration, which provides customs admi nistrators with the software to conduct customs 
verification and control, and enables the electronic filing of import declarations.  Colombia estimates 
that the integration of any new procedures in to its "sophisticated and highly integrated"32 
computerized customs administration system, which is required by Colombian Law33, will likely take 
up to four months.  
15. As a fourth and final step, Colombia intends to train DIAN officials, importers, and other 
users of its customs control system in orde r to familiarize them with the new mechanism.34  Colombia 
expects the initial training of DIAN officials to take two months. 
16. In addition to specific steps to implement th e DSB's recommendations and ruling on the use 
of indicative prices, Colombia intends to introduce le gal reforms to ensure that customs-related bank 
or insurance guarantees are effectively available to importers in the context of its revised customs 
control system.  Colombia argues that amendments to its customs securities laws would fall within the 
scope of proceedings under Article 21.5 of the DSU because of their "sufficiently close nexus"35 to the 
                                                      
30Colombia's submission, para. 36.  Colombia submits that this consultation is required by the 
constitutional principle of transparency in government ad ministration set forth in Article 209 of the Constitution 
of Colombia.   
31Colombia's submission, para. 37.  
32Colombia's submission, para. 39.  
33Colombia's submission, para. 39.  Colombia refers  specifically to Article 5 of Decree 2685/1999 and 
Resolution 457 of 20 November 2008 ("Resolution 457/2008") ((DIAN) Dirección de Impuestos y Aduanas 
Nacionales, Resolución 457 de 2008 (noviembre 20), Diario Oficial No. 47.198 de 20 de noviembre de 2008 
(Arbitration Exhibit COL-1)).   
34According to Colombia, such training is "essential for the effectiveness" of its customs control 
system, which is based on self-declaration by importers  and must be consistently applied by all customs 
authorities at all ports of entry. (Colombia's submission, para. 40) 
35Colombia's submission, para. 42 (referring to Appellate Body Report, US – Softwood Lumber IV 
(Article 21.5 – Canada) , para. 77;  and Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , 
para. 203).  WT/DS366/13 
Page 6  
 
Panel's findings.  Moreover, in order to avoid any "omission"
36 in compliance, Colombia considers 
that it needs to reform its customs control system so  as to ensure that such guarantees are effectively 
available to importers.  Thus, Colombia submits that  the development of such legal reforms must be 
taken into account by the arbitrator in his determin ation, lest there would be "an unjustified disconnect 
between the examination of [a] measure taken to  comply in Article 21.5 DSU proceedings, and 
measures taken to comply that are taken into cons ideration for the determination of the reasonable 
period of time in Article 21.3(c) DSU proceedings."37  
17. Colombia notes that customs securities are cu rrently governed by Colombia's Commercial 
Code (Código de Comercio Colombiano)38, and the process to amend such statute or to enact a new 
law on customs securities will compri se the following stages:  development of reasons for amending 
the law;  drafting of the actual reform proposal;  transmission of the bill to the President's Legal 
Office;  review by the Legal Office of the President  and other Ministries;  amendments of the bill in 
the light of comments received;  renewed transmission of the revised bill to the relevant Ministries;  
and review by the Customs, Tariff and International Trade Matters Committee (Comité de Asuntos 
Aduaneros , Arancelarios y de Comercio Exterior)  (the "Triple A Committee").  Thereafter, a 
legislative process composed of four successive  stages will be initiated before the Colombian 
Parliament39, encompassing successive debates in the Chamber of Representatives and Chamber of 
Senate, a debate in the special commissions of each  Chamber, and a discussion in the full Chamber 
for adoption.  Colombia argues that an additional procedural stage may be needed if discrepancies 
between the two Chambers of Parliament arise in or der to reconcile such differences.  In Colombia's 
estimation, the period of time required to reform  Colombian law on customs securities would range 
from 12 to 24 months.40  
(b) Restriction on Ports of Entry 
18. In respect of the ports of entry measure41, Colombia proposes to devise a measure that does 
not treat imports from Panama differently from thos e arriving directly from the country of origin, and 
that does not constitute a prohibited restriction on imports, while ensuring the enforcement of its 
customs laws in the most effective manner.  Th is implementation would incorporate some "essential 
                                                      
36Colombia's submission, para. 43 (quoting Appellate Body Report, US – Zeroing (EC) (Article 21.5 – 
EC), para. 205, in turn referring to Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , 
para. 67).  
37Colombia's submission, para. 42.  
38Decreto 410 de 1971,  Diario Oficial No. 33.339 de 16 de junio de 1971 . 
39Colombia's submission, para. 44 (referring to Colombia's Law 5 of 1992  (El Congreso de Colombia, 
Ley 5 de 1992 (junio 17), Diario Oficial No. 40.483 de 18 de junio de 1992 )).  
40Colombia's submission, para. 45.  
41Resolution 7373/2007, as modified by Resolution 7637/2007.  WT/DS366/13 
 Page 7 
 
 
aspects"42 of the existing measures, such as the advan ce import declaration, exemption for goods in 
transit, and possibly some limitations on por ts of entry with generalized application.43  C o l o m b i a  
foresees the following steps in implementing such measure.  
19. Initially, Colombia will evaluate the Panel's findi ngs of inconsistency in respect of different 
aspects of the ports of entry measure and the Panel's rejection of Colombia's defence under Article XX(d) of the GATT 1994.  In the light of the Panel's finding that the ports of entry measure 
did not sufficiently contribute to the achievement of its customs enforcement objective, Colombia will 
examine what more effective alte rnative measures could be envisaged, and what better methods of 
assessing their effectiveness in combating contraband could be developed.  Colombia further proposes 
to draw up an "inventory"
44 of the domestic norms affected by the Panel's findings, and to conduct a 
comparative study of different methods of ensuring effective customs control in the light of the WTO 
agreements and the relevant guidelines, decisions , and recommendations of the WCO.  This will 
include an examination of how other countries havi ng similar problems, apply customs control and 
security-related limitations and impose conditions on  ports of entry in a WTO-consistent manner.45  
Colombia estimates that this initial evaluation stage should take between four and six months. 
20. Next, Colombia will define and develop, in cons ultation with the public and private sectors, a 
mechanism to substitute the existing ports of entry measure.  This will involve an "integrated study"46 
on security issues, in order to prepare additional por ts of entry to process goods with a high risk of 
contraband, and a review of Colombia's transit re gime.  Colombia emphasizes that such "concerted 
action"47 will have to take into account the different stages of development and technical capacity of 
Colombian customs authorities and the difficult so cio-economic and violence-related issues that 
Colombia faces in certain regions.48  Colombia estimates that the de velopment of a revised measure 
could be completed within six months.  
21. Finally, Colombia will implement the new measu re that replaces the ports of entry measure 
into domestic law.  According to Colombia, this process will involve the following steps:  analysis of 
the need to amend the norm in question and identifi cation of relevant provis ions in related legal 
instruments affected thereby;  drafting of the am endment;  examination of its legal and technical 
correctness;  review of any requi red parallel changes;  exchange of comments and suggestions;  and 
                                                      
42Panama's submission, para. 47. 
43Colombia's submission, para. 47. 
44Colombia's submission, para. 50.  
45Colombia's submission, para. 51.  
46Colombia's submission, para. 52.  
47Colombia's submission, para. 53.  
48Colombia also suggests that, because most ports are under private concession, due regard must be 
given to the contractual rights of port operators. (Colombia's submission, para. 53)  WT/DS366/13 
Page 8  
 
approval and inclusion of the corresponding adjustments.
49  Colombia emphasizes that the decision-
making process of the DIAN involves various departments responsible for technical, legal, and 
policy-related aspects of the proposed amendment50, other Ministries, and review by the Triple A 
Committee.  
22. In addition, Colombia warns against the "simplistic suggestion"51 that there would be no need 
for the Arbitrator to award the requested reasonabl e period of time based on the prior, very prompt, 
removal of a ports of entry measure in 2006 fo llowing the conclusion of the Customs Cooperation 
Protocol (Protocolo de Procedimiento de Cooperación e Intercambio de Información Aduanera entre 
las Autoridades Aduaneras de la República de Panamá y la República de Colombia)  between Panama 
and Colombia.  According to Colombia, the "broad and comprehensive"52 customs cooperation 
agreement reached with Panama at that time jus tified the "extra-ordinary, abbreviated procedure"53 
that allowed Colombia to remove the ports of en try measure in a shorter period of time than under 
normal procedures.54  Colombia argues that the situation in th e present arbitration is distinct, insofar 
as it is under no obligation "to simply remove the ports of entry measure".55  Instead, Colombia 
intends to design a "new and more permanent measure"56 that will implement the DSB's 
recommendations and rulings while se curing effective customs enforcement.  Colombia adds that the 
existing measure needs to stay in place until the new measure is designed.57   
2. "Particular Circumstances"  
23. Colombia recalls that Article 21.3(c) of the DSU establishes a guideline of 15 months for the 
reasonable period of time for implementation, but th at "particular circumstances" may justify a longer 
or shorter period.  Referring to previous arbitra tions, Colombia considers that it would be up to 
Panama to indicate the particular circumstances that would justify a departure from the 15-month 
                                                      
49Colombia's submission, para. 56.  
50Colombia mentions the Subdirección de Gestión Técnica Aduanera , the Subdirección de Gestión de 
Comercio Exterior , the Dirección de Gestión Jurídica , the Dirección de Gestión de Aduanas , and the Dirección 
General . (Colombia's submission, para. 57) 
51Colombia's submission, para. 58.  
52Colombia's submission, para. 59.  
53Colombia's submission, para. 59.  According to Co lombia, such abbreviated procedure consisted of 
an executive decision by the President of Colombia to remove unilaterally the ports of entry measure, in use of 
the particular powers assigned to him as highest author ity in international relations by Article 189 of the 
Political Constitution of Colombia (Constitución Política de la República de Colombia de 1991) .  
54According to Colombia, the Customs Cooperation Prot ocol's failure to deliver the expected results 
and Panama's refusal to comply with its obligations thereu nder,  resulted in the rapid reinstatement of essentially 
the same measure. (Colombia's submission, paras. 60 and 61)  
55Colombia's submission, para. 61. 
56Colombia's submission, para. 61.  
57Colombia's submission, para. 62.  WT/DS366/13 
 Page 9 
 
 
guideline.58  Colombia acknowledges that previous arbi trators have found that the 15-month guideline 
presents an "outer limit or maximum in a usual case"59, and that it is not a rule from which arbitrators 
may deviate only in "exceptional"60 circumstances.  However, Colo mbia considers that the 15-month 
period should be viewed as a "benchmark" or "a framework within which" the calculation of the 
reasonable period of time is performed.61  Colombia also suggests that the structure of Article 21, and 
the notions of flexibility and balance inherent in the term "reasonable", suggest that, where immediate 
compliance is not practicable, compliance within a "reasonable" period of time is also "prompt".62   
24. Colombia argues that the following four "p articular circumstances" warrant a reasonable 
period of time equal to at least the 15-month guide line provided in Article 21.3(c) of the DSU.  
(a) Need for Legislative and Regulatory Action  
25. Colombia submits that the implementation of th e Panel's "as such" findings will require it to 
amend its laws and regulati ons and to issue new rules of general application.  Referring to previous 
arbitrations, Colombia argues that its implemen ting measures involve "legislative and regulatory 
decision-making", which entails "setting new rules" , and therefore are more time-consuming than 
"administrative decision-making", which simp ly involves applying existing regulations.63  Colombia 
emphasizes that WTO Members cannot be expected  to have recourse to "'extraordinary' 
proceedings"64, and may follow "standard practice"65, to amend laws and regulations even when this is 
                                                      
58Colombia's submission, para. 69 (quoting Award of the Arbitrator, EC – Bananas III 
(Article 21.3(c)) , para. 19;  and Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , para. 27).  
59Colombia's submission, para. 70 (referring to Award of the Arbitrator, EC – Hormones 
(Article 21.3(c)) , para. 25). 
60Colombia's submission, para. 71.  
61Colombia's submission, paras. 71 and 72 (referring to Appellate Body Report, US – Softwood Lumber 
IV, para. 92, where the Appellate Body interpreted the term "guideline" in Article 14 of the Agreement on 
Subsidies and Countervailing Measures  as a "framework within which [the calculation of a benefit] is to be 
performed").  
62Colombia's submission, para. 73.  
63Colombia's submission, para. 79 (referring to Award of the Arbitrator, US – Gambling 
(Article 21.3(c)) , para. 35).   
64Colombia's submission, para. 81 (quoting Award of the Arbitrator, Brazil – Retreaded Tyres 
(Article 21.3(c)) , para. 73, in turn referring to Award of the Arbitrator, Japan – DRAMs (Korea) (Article 
21.3(c)) , para. 25;  Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , para. 49;  Award of the 
Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)) , para. 42;  Award of the Arbitrator, Chile – Price 
Band System (Article 21.3(c)) , para. 51;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) 
(Article 21.3(c)) , para. 74). 
65Colombia's submission, para. 80 (quoting Award of the Arbitrator, Japan – DRAMs (Korea) 
(Article 21.3(c)) , para. 49;  and Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , para. 79).   WT/DS366/13 
Page 10  
 
not required by law.  Colombia adds that previ ous arbitrators have recognized the importance of a 
"pre-legislative phase of intern al inter-agency consultation"
66, which can also be time-consuming. 
26. According to Colombia, the legal pr ocess of amending Decree 2685/1999 and its 
implementing regulation (Resolution 4240/2000) will consist of the fo llowing four steps:  (i) an 
internal DIAN process, in which various DIAN departments67 analyze the need to amend the relevant 
norms and related legal instru ments (six to nine months);68  (ii) evaluation of the new administrative 
procedures of customs control and relea se of guarantees by various departments69 of the Department 
of Public Administration ( Departamento Administrativo de Función Publica ), pursuant to 
Decree 4669 of 21 December 2005 ("Decree 4669/2005")70 and paragraph 2 of Article 1 of Law 962 
of 200571 (one to two months)72;  (iii)  review of the implementing measure by the Ministry of Trade, 
Industry and Tourism (Ministerio de Comercio, Industria y Turismo) , the Ministry of Finance 
(Ministerio de Hacienda y Crédito Público) , and the Triple A Committee (two to four months)73;  and 
(iv) review and approval of the implementing me asure by the President's Office and by the Legal 
Office, publication in the Official Gazette (Diario Oficial) , and amendment of any Resolutions 
impacted by the implementing measure (up to three months).74  
(b) Complexity of the Measure 
27. Colombia argues that the complexity of ame nding measures related to customs control and 
customs enforcement is another "particular circumstance" that justifies a period of implementation of 
at least 15 months.  Colombia points out that previous  arbitrators considered that the "complex nature 
                                                      
66Colombia's submission, para. 82 (referring to Award of the Arbitrator, US – Hot-Rolled Steel  
(Article 21.3(c)) , para. 38;  and Award of the Arbitrator, Chile – Alcoholic Beverag es (Article 21.3(c)) , 
para. 43). 
67Required by Article 2 of Resolution 457/2008. (Colombia's submission, para. 87)  For the DIAN 
departments involved, see supra , footnote 50.   
68Colombia's submission, paras. 86 and 87.  See also supra , para. 20.   
69Colombia argues that Articles 3-8 of Decree 4669/2005 require review of the proposed new 
procedures by the Grupo de Racionalización y Autorización de Tramites  and the Comités Sectoriales  and 
Comités Intersectoriales  of the Department of Public Administration. (Colombia's submission, para. 88)   
70Cámara de Representantes de Colombia, Decreto 4669 de 2005 (diciembre 21), Diario Oficial No. 
46.130 de 22 de diciembre de 2005.  
71El Congreso de Colombia, Ley 962 de 2005 (julio 8), Diario Oficial No. 46.023 de 6 de septiembre 
de 2005.  
72Colombia's submission, para. 88. 
73Colombia's submission, paras. 89 and 90.  According to Colombia,  the role and responsibilities of the 
Triple A Committee are set out in Decree 403 of 3 Marc h 1993, Decree 2553 of 23 December 1999, Decree 210 
of 3 February 2003, and Decree 3303 of 25 September 2006. (Colombia's submission, footnote 56 to para. 90 
(referring to Arbitration Exhibit COL-5)) 
74Colombia's submission, paras. 91 and 92.  According to paragraph 25 of Article 189 of the 
Constitution of Colombia, it is the responsibility of the President to amend laws and regulations affecting the 
customs regime and to regulate external trade.  WT/DS366/13 
 Page 11 
 
 
of implementing measures"75 is a relevant factor in determin ing the reasonable period of time under 
Article 21.3(c) of the DSU.   
28. Colombia notes that the field of "anti-smugg ling" is heavily regulated by a series of 
"interdependent and overlapping" re gulations affecting many sectors of activity, and when this is the 
case, "adequate time will be required to draft the changes, consult affected parties, and make any 
consequent modifications as needed".76  Colombia adds that the amendment of both the indicative 
prices mechanism and the ports of entry measure will  call for an examination of the consequences of 
those amendments on the "entire anti-smuggling legal framework".77  One previous arbitrator attached 
"some significance" to an "examination of how proposed legislation will impact the existing 
regulatory regime" for the process of adopting implementing legislation.78  Colombia also sees 
analogies with another arbitrator's statement that the "technical complexities"79 of implementing a 
regime for the allocation of anti-dumping duties is relevant as a "particular circumstance" for 
determining the reasonable period of time.  
29. Colombia rejects Panama's argument that th e implementing measure is not particularly 
complex, because compliance can be achieved by a simple change of wording or the repeal of a 
particular provision.  Colombia recalls that it is not the arbitrator's task to pass judgment on the means 
of implementation it has chosen and on whether a different method of implementation could have 
achieved compliance in a shorter period.80  Colombia contends further that its implementing 
legislation may either increase the number of ports  through which Panama's imports may enter, or 
suppress the advance import declaration, while at the same time securing effective customs control 
and enforcement.  One arbitrator observed that the need to safeguard public morals and public order 
"increase[d] the complexity of any legislative solution"81 that authorized internet gambling.  Colombia  
                                                      
75Colombia's submission, para. 94 (quoting Award of the Arbitrator, EC – Export Subsidies on Sugar 
(Article 21.3(c)) , para. 88, in turn referring to Award of the Arbitrator, Canada – Pharmaceutical Patents 
(Article 21.3(c)) , para. 50;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)) , 
para. 60).  
76Colombia's submission, para. 95 (quoting Award of the Arbitrator, Canada – Pharmaceutical Patents 
(Article 21.3(c)) , para. 50).  
77Colombia's submission, para. 96. 
78Colombia's submission, para. 96 (quoting Award of the Arbitrator, US – Gambling (Article 21.3(c)) , 
para. 46).   
79Colombia's submission, para. 97 (quoting Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 61).  
80Colombia's submission, para. 98. 
81Colombia's submission, para. 99 (quoting Award of the Arbitrator, US – Gambling (Article 21.3(c)) , 
para. 47).  WT/DS366/13 
Page 12  
 
suggests that, similarly, in the circumstances of th is case, "[t]he more ports through which access is 
allowed, the more safeguard legislation may need to be enacted to ensure  that the anti-smuggling 
objective is not nullified."
82   
(c)  Importance of the Measures in the Domestic System 
30. Colombia argues further that the importance of the measures in the particular situation of 
Colombia also justifies a period of time for implementation of at least 15 months.  Colombia recalls that the arbitrator in Chile – Price Band System  considered that the "unique role and impact"
83 of the 
price band system on Chilean society was a relevant  factor in determining the reasonable period of 
time.  
31. According to Colombia, the Panel acknowledge d the existence of a serious problem of 
contraband from Panama linked to money-laundering and drug trafficking, and recognized that under-
invoicing and smuggling was "a relatively more im portant reality for Colombia than for many other 
countries".84  Colombia argues that the indicative prices a nd ports of entry measures were part of the 
"set of regulatory measures"85 adopted to combat these problems that undermine the economic, social, 
and political stability of Colombia.  For Colombia, the importance of ensuring that new measures 
address the complex economic, social, and political i ssues facing Colombia, and that such measures 
"are integrated with minimal disruption to th e efficacy of the existing anti-smuggling regime"86, 
justifies the assessment of a longer period of time for implementation.  
(d) Developing Country Status   
32. Finally, Colombia argues that Article 21.2 of the DSU requires that Colombia's developing 
country status be taken into account in the de termination of the reasonable period of time for 
implementation.  Referring to previous arbitrations , Colombia submits that Article 21.2 enjoins the 
arbitrator to be "generally mindful"87 of the difficulties that a developing country may face in 
implementing the recommendations and rulings of th e DSB, such as "severe economic and financial 
                                                      
82Colombia's submission, para. 101. 
83Colombia's submission, para. 103 (quoting Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , para. 48). 
84Colombia's submission, para. 104 (quoting Panel Report, para. 7.566).  
85Colombia's submission, para. 104.  
86Colombia's submission, para. 106.  
87Colombia's submission, para. 108 (quoting Award of the Arbitrator, Argentina – Hides and Leather 
(Article 21.3 (c)) , para. 51, in turn quoting Award of the Arbitrator, Chile – Alcoholic Beverages (Article 
21.3(c) , para. 45).  WT/DS366/13 
 Page 13 
 
 
problems".88  Colombia also recalls that, in  the "unusual circumstances" of Chile – Price Band 
System , the arbitrator was not swayed towards e ither a longer or shorter period of time89, because the 
implementing Member had failed to indicate any "specific obstacles" that it was facing as a 
developing country, and the complaining Member  (that was also a developing country) was 
experiencing "daunting financial woes" at that time.90  In contrast, in the present case, Colombia 
submits that it is a developing country "affected by the global economic crisis, in a continuing fight 
against contraband-related money-la undering and drug trafficking", and that there is no evidence that 
Panama is currently experien cing "daunting financial woes".91 
33. In the light of the foregoing, Colombia requests that I determine the "reasonable period of 
time" for implementation of the recommendations a nd rulings of the DSB in this dispute to be 
15 months from the date of adoption by the DSB of  the Panel Report, to expire on 20 August 2010.92  
B. Panama 
34. Panama requests that I determine the "reasonabl e period of time" for implementation of the 
recommendations and rulings of the DSB in this disp ute to be four months and 19 days from the date 
of adoption by the DSB of the Panel Report, that is, until 9 October 2009. 
35. Panama argues that a joint reading of Articles 21.1 and 21.3 of the DSU suggests that 
"prompt" compliance is equated with "immediate" comp liance.  However, if it is "impracticable" to 
comply immediately, Article 21.3(c) provides the implementing Member with a reasonable period of 
time in which to do so.  Panama submits that Colombia, as the implementing Member, bears the 
burden of proving that the period of time it is requesting for implementation is "reasonable".93  
Panama considers that Colombia has failed to discharge this burden. 
36. In determining the reasonable period of time for implementation, Panama submits that the 
arbitrator should take into account the following "general principles"94 elaborated by previous 
arbitrators in determining the reasonable period fo r implementation in this case:  the implementing 
                                                      
88Colombia's submission, para. 108 (referring to Award of the Arbitrator, Argentina – Hides and 
Leather (Article 21.3(c)) , para. 51;  in turn quoting Award of the Arbitrator, Indonesia – Autos (Article 21.3(c)) , 
para. 24).   
89Colombia's submission, para. 111 (referring to Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , para. 56).  
90Colombia's submission, paras. 111 and 112 (quoting Award of the Arbitrator, Chile – Price Band 
System (Article 21.3(c)) , para. 56). 
91Colombia's submission, para. 113.  
92Colombia's submission, para. 115. 
93Panama's submission, para. 26 (referring to Award of the Arbitrator, Canada – Pharmaceutical 
Patents (Article 21.3(c)) , para. 47;  Award of the Arbitrator, US – 1916 Act (Article 21.3(c)) , para. 32;  and 
Award of the Arbitrator, US – Offset Act (Byrd Amen dment) (Article 21.3(c)) , para. 44).  
94Panama's submission, para. 28.  WT/DS366/13 
Page 14  
 
Member must commence implementation as from the date of adoption of the DSB recommendations 
and rulings
95;  the implementing Member has discretion in choosing the means of implementation96, 
but that discretion is not an "unfettered" right to  choose any method of implementation;  the mandate 
of the arbitrator is limited to determining when  compliance can be achieved, but such determination is 
closely related to the question of how the Member intends to implement97;  the implementing Member 
must establish that the proposed period is the "sho rtest period possible" within its domestic legal 
system to implement the recommendations and rulings of the DSB98;  although recourse to 
"extraordinary" means of compliance is not required99, the implementing Member is expected to use 
all flexibility available within its domestic le gal system to implement the recommendations and 
rulings of the DSB100;  the implementing Member must not in clude in its method of implementation 
objectives that are extraneous to the speci fic recommendations and rulings of the DSB101, such as the 
larger objective of an overall reform of the affected domestic system102 if such inclusion would 
prolong the implementation period;  and the impl ementing Member must not use the implementation 
period to conduct studies or to consult experts to demonstrate the consistency  of a measure already 
found to be WTO-inconsistent.103   
37. For Panama, the fact that Colombia may need to address the underlying problems of 
combating customs fraud and contraband, money-launde ring, and drug trafficking, is not relevant to 
determining the reasonable period of  time.  Panama emphasizes that the removal or modification of a 
measure in the process of implementation is distinct  from the removal of the "underlying economic or 
social or other conditions"104 that justified the adoption of that measure.  Thus, "non-legal 
                                                      
95Panama's submission, para. 30 (referring to Award of the Arbitrator, EC – Chicken Cuts 
(Article 21.3(c)) , para. 66).    
96Panama's submission, para. 30 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 41;  and Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 48, in 
turn quoting Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , para. 38).   
97Panama's submission, para. 30 (referring to Award of the Arbitrator,  Brazil – Retreaded Tyres 
(Article 21.3(c)) , para. 47). 
98Panama's submission, para. 30 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 43;  and Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 51, in 
turn referring to Award of the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)) , para. 44). 
99Panama's submission, para. 30 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 42;  and Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 48,  in 
turn referring to Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25). 
100Panama's submission, para. 30 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 42;  and Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 48, in 
turn referring to Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25). 
101Panama's submission, para. 30 (referring to Award of the Arbitrator, EC – Export Subsidies on Sugar 
(Article 21.3(c)) , para. 69). 
102Panama's submission, para. 30 (referring to Award of the Arbitrator, EC – Tariff Preferences 
(Article 21.3(c)) , para.  48).  
103Panama's submission, para 30 (referring to Award of the Arbitrator, Australia – Salmon 
(Article 21.3(c)) , para. 35, in turn quoting Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , para. 39). 
104Panama's submission, para. 6 (referring to Award of the Arbitrator, Argentina – Hides and Leather 
(Article 21.3(c)) , para. 41).   WT/DS366/13 
 Page 15 
 
 
considerations"105 should not be taken into consideration in determining the period of time for 
implementation.  If the implementing Member fail s to establish that the proposed period is the 
shortest period possible for implementation within its domestic legal system, then the arbitrator has to 
determine the shortest period possible on the basis of the evidence presented by the parties.106 
1. Proposed Means of Implementation regard ing Indicative Prices and Ports of 
Entry Restrictions  
38. Panama criticizes Colombia for failing to provide th e Arbitrator with adequate information on  
the "proper scope" and "specific cont ent" of its implementing measure.107  According to Panama, 
Colombia is still merely reflecting upon how it might  implement the recommendations and rulings of 
the DSB.108  Panama recalls that it is incumbent upon th e implementing Member to indicate the means 
of implementation, because "the more information that is known about the details of the implementing 
measure, the greater guidance to an arbitrat or in selecting a reasonable period of time."109  In 
indicating that it is still "studying its options", Colo mbia has failed to provide information even on the 
"general thrust" of its implementing measures, thereby rendering the Arbitrator's task more 
difficult.110       
39. In addition, Panama submits that Colombia has not provided precise information as to the 
length of time it requires for implementation.  Ev en though Colombia initially requests a reasonable 
period of time of 15 months111, it subsequently refers to a reasonable period of time of " at least " 15 
months.112  However, Panama suggests that the total num ber of months outlined by Colombia for the 
implementation of the Panel's findings on the indica tive prices and ports of entry measures greatly 
exceeds 15 months:  between 27 and 42 months for indicative prices113, and between 22 and 30 
months for the ports of entry measure.114  Panama adds that Colombia is not sufficiently clear on the 
                                                      
105Panama's submission, para. 7.  
106Panama's submission, para. 32 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico) 
(Article 21.3(c)),  para. 43;  Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 51 in turn 
referring to Award of the Arbitrator, US – Offset Act (Byrd Amen dment) (Article 21.3(c)) , para. 44).  
107Panama's submission, para. 35.  
108Panama's submission, para. 35. 
109Panama's submission, para. 36 (quoting Award of the Arbitrator, Chile –Price Band System 
(Article 21.3(c)) , para. 37).   
110Panama's submission, para. 36.  
111Panama's submission, para. 37 (referring to Colombia's submission, para. 3).  
112Panama's submission, para. 37 (referring to Colombia's submission, para. 65). (original emphasis)  
113Panama's submission, para. 37 (referring to Colombia's submission, paras. 30-45).   
114Panama's submission, para. 37 (referring to Colombia's submission, paras. 46-56 and 83-92).  WT/DS366/13 
Page 16  
 
steps and timeframe required to implement the Panel's finding on indicative prices, and provides 
conflicting estimates of the timeframe required to im plement the Panel's finding in respect of the ports 
of entry restrictions.
115 
40. Moreover, Panama argues that Colombia has fa iled to take any concrete steps towards 
implementation since the adoption of the Panel Report by the DSB.  Panama notes that the 
implementing Member must commence implemen tation as from the date of adoption of the 
recommendations and rulings of the DSB116, and that, if the arbitrator perceives that it has not done 
so, this should be taken into account in determining the reasonable period of time.117  If Colombia has  
only undertaken preliminary internal discussions with  respect to implementation, Panama argues that 
"mere discussion is not implementation" and "[t]here  must be something more to evidence that a 
Member is moving toward implementation".118  Thus, Panama submits that any delay caused by 
Colombia's inaction to date cannot justify a longe r period for implementation.  Panama emphasizes 
further that, after the adoption of the recommendati ons and rulings of the DSB, Colombia adopted 
Resolution 6816/2009119, which extended the ports of en try measure until 31 December 2009.120  
According to Panama, absent such extension, the ports of entry measure would have lapsed, and 
Colombia would have brought itself into conform ity.  Thus, instead of undertaking steps towards 
implementation since the time of adoption of the Pa nel Report by the DSB, Colombia has "decided to 
maintain the WTO-inconsistent measure"121 and to postpone the implementation process. 
41. Panama notes further that Article 3.7 of the DSU provides that "the first objective of the 
dispute settlement mechanism is usually to secure th e withdrawal of the measures concerned".  Thus, 
according to Panama, withdrawal of the inconsis tent measures should be the preferred means of 
implementation.  Although Panama acknowledges that  the implementing Member has "discretion in 
selecting the means of implementation that it deems most appropriate"122, it does not have 
"an unfettered right to choose any method of implementation".123  Therefore, the Arbitrator must 
                                                      
115Panama's submission, para. 38 (referring to Colombia's submission, paras. 37, 91, and 92).  
116Panama's submission, para. 39 (referring to Award of the Arbitrator, EC – Chicken Cuts 
(Article 21.3(c)) , para. 66).  
117Panama's submission, para. 41 (quoting Award of the Arbitrator, US – Section 110(5) of the 
Copyright Act (Article 21.3(c)) , para. 46).  
118Panama's submission, para. 42 (quoting Award of the Arbitrator, EC – Chicken Cuts 
(Article 21.3(c)) , para. 66).  
119Panama's submission, para. 43 (referring to Arbitration Exhibit PAN-6). 
120Panama's submission, para. 43. 
121Panama's submission, para. 44.  
122Panama's submission, para. 46 (quoting Award of the Arbitrator, Japan – DRAMs (Korea) 
(Article 21.3(c)) , para. 25).  
123Panama's submission, para. 46 (quoting Award of the Arbitrator, Brazil – Retreaded  Tyres 
(Article 21.3(c)) , para. 48, in turn quoting Award of the Arbitrator, EC – Export Subsidies on Sugar 
(Article 21.3(c)) , para. 69).    WT/DS366/13 
 Page 17 
 
 
consider whether "the implementing action falls with in the range of permissible actions that can be 
taken in order to implement the DSB's recommendations and rulings."124  According to Panama, any 
action other than the withdrawal of the indicative prices and ports of entry measures would fall 
outside the permissible range of actions for implem entation.  This is because any action to replace the 
"payment" under the indicative prices measure with a compulsory "guarantee" system would fall foul of Article 13 of the Agreement on Customs Valuation .
125  Similarly, any measure that maintains 
restrictions on the ports available for entry of goods  from Panama would be in consistent with Article 
XI of the GATT 1994.126  Moreover, the implementing Member is  expected to use all the flexibility 
available in its domestic legal system to implem ent, without having recourse to "extra-ordinary" 
means.127  According to Panama, Colombia can withdraw the measures through ordinary 
administrative means. 
42. Furthermore, Panama considers that Colombia  does not have to undertake a comprehensive 
reform of its customs control and enforcement re gime in order to implement the recommendations 
and rulings of the DSB.  Panama contests Colombia 's argument that the Panel's findings on the use of 
indicative prices "impact a large number of provisi ons in the Customs Statute and in Resolution 4240 
dealing with the importation process, customs control, release subject to guarantees and customs 
valuation."128  For Panama, the Panel's findings were sp ecific to Article 128.5 e) of Decree 2685/1999, 
Article 172.7 of Resolution 4240/2000, and the various Resolutions that establish indicative prices on 
goods from Panama, which were found to be inconsistent with Articles 1, 2, 3, 5, 6, 7.2(b), and 7.2(f) 
of the Agreement on Customs Valuation .  Thus, Colombia's obligations to implement extend only to 
those measures.  Panama also disputes Colombia's allegation that implementation of the recommendations and rulings of the DSB will requi re amendment of the guarantee provisions of 
Colombia's Commercial Code.  In Panama's view, it is not clear how such amendment would ensure 
that guarantees would effectively be made available by bank and insurance companies.
129  According 
to Panama, the Panel declined to rule on whethe r the payment provided for in Article 128.5 e) of 
Decree 2685/1999 constituted a guarantee within the meaning of Article 13 of the Agreement on 
Customs Valuation .130  Furthermore, if Colombia wished to amend its guarantee provisions for 
customs purposes, it is not clear why this could not  be done by amending its customs regulations.  
                                                      
124Panama's submission, para. 46 (quoting Award of the Arbitrator, Brazil – Retreaded  Tyres 
(Article 21.3(c)) , para. 48, in turn quoting Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , 
para. 27).  
125Panama's submission, para. 46.  
126Panama's submission, para. 46.  
127Panama's submission, para. 47 (referring to Award of the Arbitrator, Brazil – Retreaded Tyres 
(Article 21.3(c)) , para. 48). 
128Panama' submission, para. 49 (quoting Colombia's submission, para. 31).  
129Panama's submission, para. 51 (quoting Colombia's submission, para. 42).  
130Panama's submission, para. 52 (referring to Panel Report, para. 7.79).  WT/DS366/13 
Page 18  
 
43. Panama also dismisses Colombia's argument that the Panel's findings may have affected "the 
basic legal premise"
131 of the ports of entry measure, namely, Article 41 of Decree 2685/1999, as 
further regulated by Article 39 of Resolution 4240/2000, which authorizes limiting the number of 
ports of entry, if necessary, for purposes of customs control and enforcement.  Panama notes that Article 41 of Decree 2685/1999 was not within the Pane l's terms of reference, and therefore Colombia 
does not have to amend this provision in order to br ing itself into conformity.  Panama argues that the 
relevant consideration is whether the implem enting measure is required by the relevant 
recommendations and rulings of the DSB.
132  Thus, although Colombia retains the discretion to work 
"on the larger task"133 of revising its customs control regime, fo r Panama, that task is not a relevant 
consideration for the Arbitrator's determination of the reasonable peri od of time for implementation of 
the specific recommendations and rulings of the DSB.  
44. Panama further stresses that previous arbitrator s have declined to take into consideration 
"non-legal factors"134 that were not specifically required by domestic law for the withdrawal or 
modification of the measures at issu e.  Therefore, in Panama's view , the following "non-legal factors" 
are not relevant for the Arbitrator's determination of  the reasonable period of time:  consultations with 
the public and private sectors on the application of Colombia's new customs control system135;  
changes to Colombia's computeri zed system of customs control136;  and training of users and DIAN 
officials in the new mechanism.137  
2. "Particular Circumstances"  
45. Panama also recalls that Article 21.3(c) provides a guideline that the reasonable period of 
time should not exceed 15 months, but arbitrators may depart from such guideline depending on the 
"particular circumstances" of the case.  According to  Panama, previous arbitrators have considered the 
following particular circumstances in determining the reasonable period of time for implementation:  
whether the means of implementation are administrative or legislative138;  whether the proposed 
                                                      
131Panama's submission, para. 53 (quoting Colombia's submission, para. 51).  
132Panama's submission, para. 53 (quoting Award of the Arbitrator, EC – Tariff Preferences 
(Article 21.3(c)) , para. 31).  
133Panama's submission, para. 54 (referring to Award of the Arbitrator, Argentina – Hides and Leather 
(Article 21.3(c)) , para. 47).  
134Panama's submission, paras. 56 (referring to Award of the Arbitrator, US – Offset Act (Byrd 
Amendment) (Article 21.3(c)) , para. 61;  and Award of the Arbitrator, EC – Export Subsidies on Sugar 
(Article 21.3(c)) , para. 69).  
135Panama's submission, para. 55 (referring to Colombia's submission, para. 36).  Panama also argues 
that Article 209 of the Constitution of Colombia provides for only general principles of transparency and does 
not require specific consultations with the private sector. ( Ibid., para. 56) 
136Panama's submission, para. 55 (referring to Colombia's submission, para. 39).  
137Panama's submission, para. 55 (referring to Colombia's submission, para. 40).  
138Panama's submission, para. 31 (referring to Award of the Arbitrator, EC – Hormones 
(Article 21.3(c)) , para. 25).    WT/DS366/13 
 Page 19 
 
 
means of implementation are complex or simple;  whether there are legally binding, as opposed to 
discretionary, component steps for implementation139;  and whether the Member has enacted similar 
implementing legislation in the past.140     
(a) Need for Legislative and Regulatory Action  
46. Panama disagrees with Colombia that implemen tation of the recommendations and rulings of 
the DSB requires both legislative and regulat ory action.  Panama emphasizes that both 
Decree 2685/1999 and Resolution 4240/2000 are admini strative acts issued by the Executive Branch 
of the Colombian Government, and therefore no legisl ative action is required to modify or withdraw 
provisions of these legal instruments.141  In addition, because Colombia is not required to amend the 
guarantee provisions of its Commercial Code in or der to implement the recommendations and rulings 
of the DSB, delays associated with legislative procedures are not relevant for the Arbitrator's 
determination.  
47. Panama recalls that only the specific measures foun d to be inconsistent by the Panel need to 
be brought into conformity.142  Panama submits that the period of time suggested by Colombia to 
withdraw or modify such instruments does not co nstitute the "shortest possible period" within its 
domestic legal system143, because it is not clear whether all the steps outlined by Colombia are 
required.   
48. In particular, Panama contests Colombia's argume nt that an amendment to specific articles of 
Decree 2685/1999 will require an internal DIAN decision-making process144, pursuant to Article 2 of 
Resolution 457 of 20 November 2008 ("Resolution 457/2008").145  Panama adds that Article 2 sets out 
procedures for the introduction of a new requirement146, whereas the modification or withdrawal of 
the indicative prices and ports of entry measures will not entail such new requirement.  Panama also 
questions Colombia's estimation that the internal DIAN decision-making process will take six to nine 
                                                      
139Panama's submission, para. 31 (referring to Award of the Arbitrator, EC – Hormones 
(Article 21.3(c)) , paras. 49-52).  
140Panama's submission, para. 31 (referring to Award of the Arbitrator, US – Gambling 
(Article 21.3(c)) , para. 55).    
141Panama's submission, para. 58.  
142Panama lists Article 128.5 e) of Decree 2685/1999;  Article 172.7 of Resolution 4240/2000;  various 
specific Resolutions establishing indicative prices fo r certain products;  and Resolution 7373/2007, which 
provides the legal bases for the ports of entry measure. (Panama's submission, para. 64) 
143Panama's submission, para. 72.   
144Panama's submission, para. 65 (referring to Colombia's submission, para. 86).  According to Panama, 
that provision is applicable only to administrative acts, documents, and forms of the DIAN, and therefore does 
not apply to amendments to Decree 2685/1999, which is, rather, a Decree issued by the President of Colombia. 
145Dirección de Impuestos y Ad uanas Nacionales, Resolución 457 de 2008 (noviembre 20),  Diario 
Oficial No. 47.198 de 20 de noviembre de 2008 (Arbitration Exhibit COL-1). 
146Panama's submission, para. 66 (referring to Article 2 of Resolution 457/2008).  WT/DS366/13 
Page 20  
 
months, because neither Resolution 457/2008 nor Administrative Order No. 0002 of 8 May 2009
147 
indicate any specific timeframes other than a period of 13 working days for the "formalisation of the 
procedure".148  Panama suggests further that any amendments  to the regulations at issue need not be 
subject to review by the Department of Public Administration, pursuant to  Decree 4669/2005, because 
Article 2 of Resolution 457/2008 does not appear to require such an evaluation procedure.  In any event, Panama notes that Decree 4669/2005 does no t provide for any specific timeframe, despite 
Colombia's estimation that its revi ew will take one to two months.
149  In addition, Panama is of the 
view that Colombia has failed to provide any ev idence in support of its assertions that:  (i) the 
Ministry of Trade, Industry and Tourism (Ministerio de Comercio, Industria y Turismo) and the 
Ministry of Finance (Ministerio de Hacienda y Crédito Público)  are required to review and approve 
the implementing measure150;  (ii) the President's Office will ha ve to approve the draft new measure 
before review by the Legal Office of the President, signature by the President, and publication in the 
Diario Oficial151;  and (iii) modification of the relevant R esolutions should take up to three months.152  
49. Panama posits further that Colombia can withdraw or modify Article 128.5 e) of 
Decree 2685/1999 relating to indicative prices through ordinary administrative means, because the 
President of Colombia has the authority to amend Decree 2685/1999 after having heard the views of 
the Triple A Committee.153  Although Colombian law provides no specific timeframes for the 
amendment of that Decree, according to Article  3 of Decree 3303/2006, the Triple A Committee shall 
meet in ordinary session every three months, or ex traordinarily at any time at the behest of its 
President (the Vice-Minister of Trade).154   
50. Similarly, Panama points out that Artic le 28.6 of Decree 4048/2008 provides the Deputy 
Directorate of Technical Customs Management of  Colombia's Customs Administration with the 
authority to establish, modify, and withdraw  reference prices, including indicative prices.155  
Likewise, Panama suggests that Article 6.12 of Decree 4048/2008 provides the Directorate General of 
                                                      
147(DIAN) Direccion de Gestion Organizacional – Orden Administrativa 0002 , dated 8 May 2009. 
148Panama's submission, para. 67 (referring to Article 2, para. 3, of Resolution 457/2008;  and 
para. 4.4.6 of (DIAN) Direccion de Gestion Organizacional – Orden Administrativa 0002 , dated 8 May 2009).  
149Panama's submission, para. 68 (referring to Colombia's submission, para. 88).  
150Panama's submission, para. 69 (referring to Colombia's submission, para. 89;  Decree 210/2003;  and 
Decree 4646/2006).  
151Panama's submission, para. 70 (referring to Colombia's submission, paras. 91 and 92).  
152Panama's submission, para. 71 (referring to Colombia's submission, para. 92).  
153In particular, Panama notes that the President has such authority under Article 189.25 of Colombia's 
Constitution, Article 3 of Law 6 of 1971, and Article 2 of Law 7 of 1991. (Panama's submission, para. 73) 
154Panama's submission, para. 74.  
155Panama notes that Article 28.6 of Decree 4048/ 2008 replaced Article 23 of Decree 1071/1999 as 
establishing such authority. (Panama's submission, para. 78)  WT/DS366/13 
 Page 21 
 
 
the DIAN "full discretion" to withdraw or modify both Resolution 7373/2007 and 
Resolution 4240/2000.156  None of these provisions provides for specific timeframes, or requires 
participation of other governmental agencies in the decision-making process. 
51. Furthermore, Panama contends th at Colombia's previous repeal of similar indicative prices 
and ports of entry measures as a result of a mutually  agreed solution with Panama illustrates that the 
measures at issue in this dispute can be withdrawn or modified almost immediately.  Panama observes 
that, when it reached a mutually agreed solu tion with Colombia on 31 October 2006, Colombia 
withdrew the indicative prices and ports of entr y measures on 1 November 2006.  Panama contends 
that Colombia is now in a legal position to take similar administrative action, without recourse to 
extraordinary procedures.  Panama rejects Colo mbia's argument that the current situation is 
"fundamentally different", because, in its view, th e legal authority under Colombian law to withdraw 
or modify the measures at issue is the same.157  Panama observes further that, contrary to Colombia's 
suggestion, the repeal of the ports of entry meas ure in 2006 was not the result of "extra-ordinary, 
abbreviated procedures" involving the President's authority under Article 189 of the Constitution of 
Colombia, but was rather issued by the Director-G eneral of the DIAN, in exercise of his ordinary 
functions.158 
(b) Complexity of the Measure  
52. Panama disagrees with Colombia that the alleged complexity of the measures relating to 
Colombia's customs control and customs enforcem ent constitutes a "particular circumstance" that 
justifies a period of implementation of at least 15 months.159  Panama considers that the measures 
"in and of themselves"160 are not complex, and that the process for amending them is not complex.  In 
Panama's view, what may be "complex" is the "contentiousness" of these measures in Colombia.161  
However, several arbitrators have  dismissed the "contentiousness" of a measure as a "particular 
circumstance" in their determinati on of the reasonable period of time.162      
                                                      
156Panama notes that Article 6.12 of Decree 4048/2 008 replaced Article 19(i) of Decree 1071/1999 as 
establishing such authority. (Panama's submission, paras. 81-83)   
157Panama's submission, para. 87 (referring to Colombia's submission, para. 61).   
158Panama's submission, para. 88.  According to Panama, the DIAN's Director-General had authority 
pursuant to Decrees 1071/1999 and 2685/1999. 
159Panama's submission, para. 91 (referring to Colombia's submission, para. 93).  
160Panama's submission, para. 92.  Panama notes that Article 128.5 e) of Decree 2685/1999 and 
Article 172.7 of Resolution 4240/2000 each consist of on ly one paragraph, and Resolution 7373/2007 comprises 
only two pages.   
161Panama's submission, para. 92. 
162Panama's submission, para. 92 (referring to Award of the Arbitrator, US – Offset Act (Byrd 
Amendment) (Article 21.3(c)) , para. 61;  and Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , para. 47).   WT/DS366/13 
Page 22  
 
(c) Importance of the Measure in the Domestic System 
53. Panama also dismisses the importance of the indicative prices and ports of entry measures in 
Colombia's domestic system as a "particular circumstance" justifying a reasonable period of time of at 
least 15 months.  Panama distinguishes the facts before the arbitrator in Chile – Price Band System 
from the facts of this dispute.  In that dispute, the fact that Chile's price band system had been a 
"cornerstone of its agricultural policy for almost 20 years" led the arbitrator to find that it was so 
"fundamentally integrated"
163 into the policies of Chile that its  "unique role and impact" on Chilean 
society was taken into account as a relevant circumst ance.  In contrast, Colombia's indicative prices 
and ports of entry measures have been adopted in the course of the last five years.164  Thus, in the light 
of the "recent vintage" of those measures, Panama submits that Colombia has not demonstrated their 
"unique role and impact" on Colombian society.165      
(d) Developing Country Status  
54. Finally, Panama submits that the Arbitrator s hould not take into account Colombia's status as 
a developing country in determining the length of time allowed for implementation.166  Panama also 
emphasizes that, although the arbitrator in Chile – Price Band System recognized that Chile may have 
faced obstacles as a developing country in its implementation of the recommendations and rulings of the DSB, Argentina similarly faced "hardship"  as long as the WTO-inconsistent measure was 
maintained, and therefore decided not to take Chile 's developing country status into consideration.
167  
Thus, Panama suggests that Colombia has not demonstrat ed that it is in a "dire economic or financial" 
situation that would justify an exte nded period of time for implementation.168  Rather, it is Panama's 
own status as a developing country being adversel y affected by WTO-inconsistent measures for the 
last five years that should be taken into account. 
55. In the light of the foregoing, Panama requests that I determine the reasonable period of time 
for implementation of the recommendations and rulings of the DSB in this dispute to be 4 months and 
19 days from the adoption by the DSB of the Panel Report, to expire on 9 October 2009.   
                                                      
163Panama's submission, para. 92 (referring to Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , paras. 46 and 48).   
164Panama's submission, para. 92 (referring to Colombia's submission, para. 104).  
165Panama's submission, para. 92.  
166Panama's submission, para. 93 (quoting Award of the Arbitrator, Indonesia – Autos (Article 21.3(c)) , 
para. 24).  Panama argues that, in Indonesia – Autos , the particular circumstance that  led the arbitrator to grant 
additional time for implementation was the "dire economic and financial situation" faced by Indonesia, rather 
than its developing country status.   
167Panama's submission, para. 94 (quoting Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , para. 56).  
168Panama's submission, para. 95.   WT/DS366/13 
 Page 23 
 
 
56. Alternatively, Panama requests that I determine two separate reasonable periods of time for 
implementation of the recommendations and rulings of the DSB:  a longer period of time for the 
indicative prices measure, considering that  an amendment to Decree 2685/1999 may require 
Presidential action and review by the Triple A Committ ee;  and a shorter period of time for the ports 
of entry measure, given that Resolution 7373/200 7 and subsequent extens ions may be modified 
exclusively by the DIAN through ordinary administrative procedures.169  
III. Reasonable Period of Time 
A. Preliminary Matters 
1. Procedural Issue  
57. Before turning to the question of the reasonabl e period of time for implementation, I address a 
preliminary issue raised during the oral hearing in  these arbitration proceedings.  Attached to the 
written version of its opening statement, Colombia  submitted Exhibits COL-6 to COL-11, which 
contained evidence that had not been previously submitted with its written submission.  Panama 
objected to the introduction of such evidence at th e oral hearing stage.  Panama argued that the 
introduction of new evidence at such a late stage in  the proceedings could potentially infringe upon its 
due process rights, for it did not have adequate time to review and comment on such evidence.  
Colombia responded that the evidence submitted at the oral hearing was intended to rebut allegations 
made by Panama in its written submission, and therefore did not raise any due process concerns.  
58. Upon review of the evidence submitted by Colomb ia during the oral hearing, I determined 
that Exhibit COL-6 contained a chart that outlined , in summarized fashion, the particular steps 
proposed by Colombia in its written submission for implementation of the recommendations and 
rulings of the DSB.  A similar chart had been submitted by Panama in paragraph 37 of its written 
submission.  I therefore decided to admit the char t contained in Exhibit COL-6 as evidence in these 
proceedings.  I did not consider it necessary to rely  on the evidence contained in Exhibits COL-7 to 
COL-11 in reaching my determination. 
59. Also during the oral hearing, I asked Colo mbia to produce evidence in support of its 
contention that an Inter-Institutional Working Group (Grupo de Trabajo Interinstitucional)  had been 
established on 17 April 2009 with the objective of examining different alternatives for the 
implementation of the recommendations and rulings of  the DSB.  In response, Colombia submitted an 
                                                      
169Panama's submission, paras. 99-101 (referring to Award of the Arbitrator, US – Gambling 
(Article 21.3(c)) , para. 41).  Panama notes that the arbitrator  in that case discussed whether more than one 
reasonable period of time could be determined under Article 21.3(c), while ultimately not deciding that 
question.  WT/DS366/13 
Page 24  
 
Ayuda Memoria  produced by the Ministry of Trade, Industry and Tourism of Colombia, which 
contained the minutes of the first meeting of the Working Group, and a list of attendees.  I decided to 
admit this document as relevant evidence in these proceedings.         
2. Mandate of the Arbitrator
 
60. The Panel Report in this dispute was adopted by the DSB on 20 May 2009.  On 19 June 2009, 
Colombia informed the DSB of its intention to comply with the recommendations and rulings, but 
stated that it would need a reasonable period of time in which to do so.170  As the parties failed to 
agree on a period of time for implementation, the Di rector-General consulted with the parties and 
appointed me as Arbitrator on 30 July 2009 to dete rmine a reasonable period of time.  I accepted the 
appointment on 3 August 2009.  
61. Article 21.3 of the DSU establishes that, if it is "impracticable" for a Member to comply 
"immediately" with the recommendations and rulings of the DSB, then that Member "shall have a 
reasonable period of time in which to do so".  My task as Arbitrator in these proceedings is to 
determine such reasonable period of time, taking due account of the relevant provisions of the DSU 
and, specifically, of the following directions set forth in Article 21.3:  
... The reasonable period of time shall be:  
(c) a period of time determined through binding arbitration .... In 
such arbitration, a guideline for the arbitrator should be that the reasonable period of time to impl ement panel or Appellate Body 
recommendations should not exceed 15 months from the date of 
adoption of a panel or Appellate Body report.  However, that 
time may be shorter or longer, depending upon the particular 
circumstances. (footnotes omitted) 
62. I am mindful of the context in which Article  21.3(c) appears.  Article 21.1 of the DSU 
provides that "prompt compliance" is essential fo r the effective resolution of WTO disputes.  
Furthermore, the introductory paragraph of Article 21.3 indicates that a "reasonable period of time" 
for implementation shall be available only if "it is  impracticable to comply immediately" with the 
recommendations and rulings of the DSB.  I agree with the arbitrator in EC – Hormones that these 
contextual elements suggest that the "reasonable peri od of time" within the meaning of Article 21.3 of 
the DSU "should be the shortest period possible w ithin the legal system of the [implementing] 
Member."
171  
                                                      
170WT/DSB/M/270, para. 51. 
171Award of the Arbitrator, EC – Hormones (Article 21.3(c)),  para. 26.   WT/DS366/13 
 Page 25 
 
 
63. It is generally accepted that my mandate in th ese Article 21.3(c) proceedings is limited to 
determining the "reasonable period of time" for im plementation in the underlying WTO dispute.  In 
fulfilling this limited mandate, I acknowledge th at the implementing Memb er has a measure of 
discretion in selecting the means of implementation th at it deems most appropriate.  Like previous 
arbitrators before me, I consider that my mandate relates to the time by when the implementing 
Member must achieve compliance, not to the manner  in which that Member achieves compliance.172  
Yet, when  a Member must comply cannot be determined in isolation from the chosen means of 
implementation.  In order "to determine when a Member must comply, it may be necessary to 
consider how a Member proposes to do so."173  Thus, in making my determination under 
Article 21.3(c), the means of implementation ava ilable to the Member concerned is a relevant 
consideration.174 
64. While an implementing Member has discretion in selecting the means of implementation, this 
discretion is not "an unfettered right to  choose any method of implementation".175  I n  m y  v i e w ,  
implementation of the recommendations  and rulings of the DSB in th is case is an "obligation of 
result", and therefore the means of implementation cho sen must be apt in form, nature, and content to 
effect compliance, and should otherwise be consistent with the covered agreements.176  Thus, although 
I am mindful that it falls within the scope of Ar ticle 21.5 proceedings to assess whether the measures 
eventually taken to comply are WTO-consistent, in making my determination under Article 21.3(c) I 
must consider "whether the implementing action falls within the range of permissible actions that can 
be taken in order to implement the DSB's recommendations and rulings."177  Moreover, I agree with 
the arbitrator in EC – Export Subsidies on Sugar that "the chosen method must be such that it could be 
implemented within a reasonable period of time in  accordance with the guidelines contained in 
                                                      
172See Award of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)),  para. 41;  Award of the 
Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)),  para. 47;  Award of the Arbitrator, Japan –  DRAMs 
(Korea) (Article 21.3(c)),  para. 26;  Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)),  para. 49;  and 
Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)),  para. 41.   
173Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  para. 26. (original emphasis)  
174Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 27.   
175Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)),  para. 69.     
176See Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , para. 38.  See also Award of the 
Arbitrator, US – Stainless Steel ( Mexico) (Article 21.3(c)),  para. 41;  Award of Arbitrator, Brazil – Retreaded 
Tyres (Article 21.3(c)) , para. 48;    Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25 
(referring to Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , para. 49, in turn referring to Award 
of the Arbitrator,  Canada – Pharmaceutical Patents (Article 21.3(c)) , paras. 41-43;  Award of the Arbitrator, 
Chile – Price Band System (Article 21.3(c)) , para. 32;  Award of the Arbitrator,  EC – Tariff Preferences 
(Article 21.3(c)) , para. 30;  Award of the Arbitrator,  US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.3(c)) , para. 26;  Award of the Arbitrator, US – Gambling (Article 21.3(c)) , para. 33;  and Award of 
the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)) , para. 69). 
177Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  para. 27.  WT/DS366/13 
Page 26  
 
Article 21.3(c)."
178  In addition, while the implementing Member  is free to initiate wider reforms of its 
municipal law in the process of implementing of  the DSB's recommendations and rulings, such 
objectives do not justify a longer implementation pe riod.  My determination as to the reasonable 
period of time for implementation of these recommenda tions and rulings must focus on the shortest 
period possible within the legal system of the impl ementing Member to bring the particular measures 
found to be inconsistent into conf ormity with its WTO obligations.179   
65. As other arbitrators in the past, I also consider  that the implementing Member is expected to 
use whatever flexibility is available within its legal system to promptly implement the 
recommendations and rulings of the DSB.180  This is justified by the importance of fulfilling the 
obligation to comply immediately with the reco mmendations and rulings of the DSB, which have 
established that certain measures are inconsistent w ith a Member's WTO obligations.  However, this 
does not necessarily include recourse to "extraordinary" procedures.181 
66. Further, I note that the parties have offered di verging views on the allocation of the burden of 
proof under Article 21.3(c) of the DSU.  Colombia argues that it was incumbent upon Panama, as the 
party requesting deviation from the 15-month guidelin e provided in Article 21.3(c), to demonstrate 
the "particular circumstances" justifying a shorter period of time for implementation.182  Panama 
responds that Colombia, as the implementing Member , bears the burden of proving that the period of 
time it requests for implementation is "reasonable".183      
67. I am guided by previous arbitrators' awards that place the burden on the implementing 
Member to demonstrate that, if immediate compli ance is impracticable, the period of time it proposes 
constitutes a "reasonable period of time".184  However, this does not ab solve the other Member from 
                                                      
178Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)) , para. 69.   
179See Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)), para. 31.  
180See Award of the Arbitrator, US – Stainless Steel ( Mexico) (Article 21.3(c)),  para. 42;  Award of the 
Arbitrator,  Brazil – Retreaded Tyres (Article 21.3(c)),  para. 48;  Award of the Arbitrator, Japan – DRAMs 
(Korea) (Article 21.3(c)) , para. 25 (referring to Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , 
para. 49, in turn referring to Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)) , para. 39;  
Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)) , para. 36;  and Award of the Arbitrator, US – 
Offset Act (Byrd Amendm ent) (Article 21.3(c)) , para. 64). 
181See Award of th e Arbitrator, US – Stainless Steel ( Mexico) (Article 21.3(c)) , para. 42 (referring to 
Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)),  para. 48, in turn referring to Award of the 
Arbitrator, Japan – DRAMs (Korea) , para. 25;  Award of the Arbitrator, EC – Chicken Cuts , para. 49;  Award of 
the Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)) , para. 42;  Award of the Arbitrator, Chile – Price 
Band System (Article 21.3(c)) , para. 51;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) 
(Article 21.3(c)) , para. 74). 
182Colombia's submission, para. 69.  
183Panama's submission, para. 27.  
184See Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  para. 28 (referring to Award 
of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)),  para. 47;  and Award of the Arbitrator, US 
– 1916 Act (Article 21.3(c)),  para. 33).   WT/DS366/13 
 Page 27 
 
 
producing evidence in support of its contention that the period of time requested by the implementing 
Member is not "reasonable", and a shorter period of time for implementation is warranted.    
3. The Measures Found to be Inconsistent by the Panel  
68. For the purposes of these Article 21.3(c) arbitr ation proceedings, I refer to the relevant 
findings of the Panel: 
• Article 128.5(e) of Decree 2685/1999, Article  172.7 of Resolution 4240/2000, as well as 
various Resolutions establishing indicative prices185, by mandating the use of indicative prices 
for customs valuations purposes, are inconsistent "as such" with the obligation to apply, in a 
sequential manner, the methods of  valuation provided in Articles 1, 2, 3, 5, and 6 of the 
Agreement on Customs Valuation186;  
• Article 128.5(e) of Decree 2685/1999, Article  172.7 of Resolution 4240/2000, as well as 
various Resolutions establishing indicative pri ces, by mandating the use of the higher of two 
values, or a minimum price, as the customs valu e of subject goods, are inconsistent "as such" 
with Articles 7.2(b) and 7.2(f) of the Agreement on Customs Valuation187; and 
• Resolution 7373/2007, as amended by Resolution 7637/2007188 (the "ports of entry measure") 
is inconsistent with Article I:1, the first a nd second sentences of Article V:2, the first sentence 
of Article V:6, and Article XI:1 of the GATT 1994.189  
69. The Panel further rejected Colombia's defence that the ports of entry measure was justified 
under Article XX(d) of the GATT 1994 as a measure n ecessary to secure compli ance with Colombia's 
customs laws and regulations.190  Although the Panel considered th at the ports of entry measure was 
designed to secure compliance with Decree 2685/1999 and Resolution 4240/2000191, and recognized 
the importance of combating under-invoicing and money-laundering associated with drug 
                                                      
185Resolution No. 7510/2007, as modified by Resolution No. 11412/2007;  Resolution No. 7511/2007;  
Resolution No. 7509/2007, as modified by Resolution No. 11414/2007;  Resolution No. 7512/2007, as modified 
by Resolution No. 11415/2007 and Resolution No. 7513/2007. (See Panel Report, para. 7.36)  During the course 
of the oral hearing, the parties confirmed that some of  the measures establishing indicative prices had been 
replaced by Resolutions 8812/2008 (Arbitration Exhibit PAN-3) and 5516/2009 (Arbitration Exhibit PAN-4).  
186Panel Report, paras. 7.152 and 8.1.  
187Panel Report, paras. 7.153 and 8.2.  
188Resolution 7373/2007 was extended until 30 June 2009 by Resolution 1749/2008 (Arbitration 
Exhibit PAN-5) and until 31 December 2009 by Re solution 6816/2009 (Arbitra tion Exhibit PAN-6).    
189Panel Report, para. 8.5.  
190Panel Report, para. 8.7.  
191Panel Report, para. 7.543.  WT/DS366/13 
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trafficking
192, the Panel found that Colombia had not est ablished that the ports of entry measure 
contributed to combating customs fraud and contraband in Colombia.193   
70. The Panel Report was issued to the parties on 15 April 2009194, was circulated to WTO 
Members on 27 April 2009, and was adopted by the DSB on 20 May 2009.  The Panel recommended that Colombia brings its measures into c onformity with its obligations under the Agreement on 
Customs Valuation  and the GATT 1994.
195  
B. Factors Affecting the Determination of the Reasonable Period of Time under 
Article 21.3(c) of the DSU 
1. Proposed Means of Implementation  
(a) Colombia 
71. With respect to the use of indicative prices  for customs valuation purposes, Colombia 
proposes to implement the DSB's r ecommendations and rulings under the Agreement on Customs 
Valuation by "revising the design and implementation of its customs control system based on 
indicative prices to more clearly separate customs valuation from the legitimate right to exercise 
customs control."196  According to Colombia, this is likely to  incorporate "a revised system of customs 
control based on database prices that will not serve as the basis for customs valuation."197  Colombia 
argues that the process for modifying its customs c ontrol system would entail the following sequential 
steps: 
• identification and evaluation of whether and how various provisions of Colombia's laws, 
regulations, and administrative orders may be impacted by the Panel's rulings and by the 
amendment of the indicative prices mechanism.198  Colombia estimates that this step could be 
completed in three months;  
                                                      
192Panel Report, para. 7.566.  
193Panel Report, paras. 7.585, 7.588, and 7.618.  In th e light of these findings, the Panel did not address 
the introductory clause of Article XX of the GATT 1994.  
194Panel Report, para. 1.8.  I also note that the Pane l issued its Interim Report to the parties on 4 March 
2009.  
195Panel Report, para. 8.10.  
196Colombia's submission, para. 28.  
197Colombia's submission, para. 28.  
198Colombia's submission, paras 30-32.  WT/DS366/13 
 Page 29 
 
 
• examination of possible alternatives to reform Colombia's customs control system199, 
consultations200, and elaboration of a specific drafting proposal to amend Decree 2685/1999 
and Resolution 4240/2000.  The elaboration of a specific drafting proposal would be subject 
to the DIAN's internal decision-making process, pursuant to Article 2 of Resolution 457/2008 
and Administrative Order 0002 of 08 May 2009 (six to nine months)201; 
• examination of revised customs procedures by the Department of Public Administration, 
pursuant to Decree 4669/2005 (one to two months)202; 
• examination of proposed amendments to Decree 2685/1999 and Resolution 4240/2000 by the 
Comité de Asuntos Aduaneros , Arancelarios y de Comercio Exterior  (the "Triple A 
Committee") (Decree 3303/2006), the Ministry of Trade, Industry and Tourism (Decree 
210/2003) and the Ministry of Finance (Decree 4646/2006) (two to four months)203; 
• review of the amendments to Decree 2685/199 9 and Resolution 4240/2000 by the Legal 
Office of the President, signature by the Preside nt, and publication of the amendments in the 
Official Gazette (Diario Oficial)204 (one month);  
• amendment of specific Resolutions establishing indicative prices (three months)205; 
                                                      
199According to Colombia, this step includes: analysis of various international norms on customs 
valuation and customs control, including the experience of countries facing similar problems;  examination of 
how to administer a customs control system based on cash deposits;  examination of which "other appropriate 
instrument" could be imposed as a guarantee mechanism under Article 13 of the Agreement on Customs 
Valuation  and Article 51(1) of Andean Community Resolution 846, implementing Andean Community 
Decision 571;  examination of WTO-consistency of different approaches; examination of the World Customs 
Organization ("WCO") practices on customs valuation, control and enforcement;  and examination of whether a generalized system of an advance import declaration can be de signed. (Colombia's submission, paras. 33-35)        
200Colombia argues that the constitutional principle of transparency in government administration 
provided in Article 209 of the Constitution of Colombia re quires that the public and private sectors are consulted 
on a new system of customs control. (Colombia's submission, para. 36)   
201According to Colombia, the DIAN's internal d ecision-making process consists of the following 
steps:  preparation of an initial draft of amended text;  review of its legal and technical correctness;  review of 
proposed parallel changes in respect of related legal norms;  exchange of comments and suggestions;  and 
approval and inclusion of corresponding adjustments into a new final proposal.  Colombia argues that this 
process involves several departments of the DIAN, including the Technical Sub-Directorate (Subdirección de 
Gestión Técnica Aduanera) , the Sub-Directorate for External Trade (Sub-Dirección de Gestión de Comercio 
Exterior) , the Directorate for Legal Affairs  (Dirección de Gestión Juridica) , the Directorate for Customs 
Management (Dirección de Gestión de Aduanas) and the General Directorate (Dirección General).   (Colombia's 
submission, paras. 86 and 87)         
202Colombia's submission, para. 88 and Arbitration Exhibit COL-4.  
203Colombia's submission, paras. 89 and 90.  
204Colombia's submission, paras. 91 and 92 and Arbitration Exhibit COL-6.  
205Colombia's submission, para. 92.  WT/DS366/13 
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• implementation of the new measure into Colo mbia's computerized system of customs 
administration (four months)
206;  and  
• internal training of customs administration officials (two months).207  
72. In addition to the steps describ ed above, Colombia intends to reform the provisions of its 
Commercial Code dealing with customs securities in or der to ensure that bank or insurance guarantees 
are effectively available to importers in the contex t of its revised customs control system.  According 
to Colombia, the process for amending its Commercia l Code would include the following stages:  
development of reasons for amending the law;  drafting of the actual reform proposal;  transmission of 
the bill to the President's Legal Office;  review  by the Legal Office of the President and other 
Ministries;  amendments of the bill in the light of  comments received;  renewed transmission of the 
revised bill to the relevant Ministries;  and review by the Triple A Committee.208  Thereafter, a 
legislative process composed of four successive stages would be initiated before the Colombian 
Parliament.209  Colombia estimates that the amendment of its customs securities laws would take 
between 12 and 24 months.  
73. With respect to the ports of entry measure , Colombia proposes to implement the Panel's 
findings under the GATT 1994 by amending its measu re in a manner that does not treat imports 
arriving from Panama differently from those arriving directly from the country of origin, while at the 
same time ensuring the enforcement of its customs laws.  Towards this end, Colombia contemplates 
incorporating into its revised measure some "essen tial aspects" of the ports of entry measure, such as 
the advance import declaration, the exemption for goods  in transit, and possibly certain limitations on 
the ports of entry in a measure of "generalized application".210  
74. Colombia argues that the process for revising its  ports of entry measure would encompass the 
following steps:  
• a preliminary evaluation stage, consisting of an  evaluation of the Panel's findings and the 
impact of their implementation on different la ws and regulations, as well as a comparative 
                                                      
206Colombia's submission, para. 39.  Colombia argues that this particular stage is required by Article 5 
of Decree 2685/1999 and by Resolution 457/2008.  
207Colombia's submission, para. 40.  
208Colombia's submission, para. 44.  
209Colombia's submission, para. 44 (referring to El Congreso de Colombia, Ley 5 de 1992 (junio 17), 
Diario Oficial No. 40.483 de 18 de junio de 1992  (Law 5 of 1992)).  
210Colombia's submission, para. 47.   WT/DS366/13 
 Page 31 
 
 
study of different methods for securing customs control, in the light of the WTO agreements 
and relevant guidelines, decisions, and recomme ndations of the WCO (four to six months)211; 
• definition and development of a mechanism to  substitute the ports of entry measure in 
consultation with the public and private sectors.212  The elaboration of a specific drafting 
proposal would be subject to the DIAN's in ternal decision-making process, pursuant to 
Article 2 of Resolution 457/2008 and Administrative Order 0002 of 08 May 2009 (six 
months)213; 
• examination of proposed new procedures by th e Department of Public Administration, 
pursuant to Decree 4669/2005 (one to two months)214;  
• examination of the proposed new mechanism by  the Triple A Committe e (Decree 3303/2006), 
the Ministry of Trade, Industry and Tourism (Decree 210/2003), and the Ministry of Finance (Decree 4646/2006) (two to four months)
215;  and  
• signature by the President, review by the Lega l Office of the President, and publication of the 
amendments in the Diario Oficial  (one month)216. 
75. At the oral hearing, Colombia explained that, although in its estimation the implementation of 
the recommendations and rulings of the DSB coul d take any time between 15 and 28 months, it was 
willing to use all flexibility available within its dom estic legal system to achieve compliance within 
the 15-month guideline provided in Article 21.3(c) of the DSU.  
(b) Panama 
76. Panama argues that "any implementing action other than withdrawal of the measure would 
fall outside the permissible range of actions for implementation."217  Panama recalls that withdrawal 
of the inconsistent measures is the preferred mean s of implementation under Article 3.7 of the DSU.  
Panama acknowledges that Colombia has discretion in selecting the means of implementation, but 
                                                      
211Colombia's submission, paras. 49-51.   
212According to Colombia, this stage involves:  an in tegrated study into port  and airport security;  
review of the potential benefits of generalizing the advance import declaration;  review of Colombia's transit 
regime to ensure compliance with Colombia's internationa l obligations;  and considera tion of the different stages 
of development and technical capacity of customs authorities and related socio-economic conditions.  
(Colombia's submission, paras. 52-54)  
213For a description of the DIAN's inte rnal decision-making process, see supra , footnote 201 to 
paragraph 71 
214Colombia's submission, para. 88 and Arbitration Exhibits COL-4 and COL-6.  
215Colombia's submission, paras. 89 and 90 and Arbitration Exhibit COL-6.  
216Colombia's submission, para. 91 and Arbitration Exhibit COL-6.  
217Panama's submission, para. 46.  WT/DS366/13 
Page 32  
 
maintains that Colombia's proposed means of im plementation do not fall within the "range of 
permissible actions that can be taken in or der to implement the DSB's recommendations and 
rulings".
218  Panama reasons that any measure that replaces the payment of duties under 
Article 128.5 e) of Decree 2685/1999 with a compulsory  guarantee system would be inconsistent with 
Article 13 of the Agreement on Customs Valuation.   Similarly, Panama contends that any measure that 
maintains any restrictions on the ports of entry wo uld fall afoul of Article XI of the GATT 1994.  
Panama underscores that similar measures were wit hdrawn by Colombia in 2006 within a very short 
period of time, and therefore considers that one w eek following the issuance of this Award, that is, 
4 months and 19 days from the date of adoption of the Panel Report, would be sufficient for Colombia 
to complete implementation in this case.       
(c) Analysis 
77. Initially, I observe that Article 3.7 of the DSU provides that "the first objective of the dispute 
settlement mechanism is usually to secure withdrawal " of the WTO-inconsistent measures.  Hence, I 
agree with Panama that withdrawal of the inc onsistent measures is the "preferred" means of 
implementation and certainly falls within the range of permissible actions.  However, I do not exclude 
that Colombia could bring itself into conformity with the recommendations and rulings of the DSB by modifying both the indicative prices mechanism a nd the ports of entry measure in a manner that 
rectifies the particular WTO-inconsistencies identifie d by the Panel.  In my view, modification of both 
the indicative prices mechanism and the ports of entry measure is within the "range of permissible actions"
219 available for Colombia to implement the r ecommendations and rulings of the DSB in this 
dispute.  I draw guidance from the arbitrator in US – Offset Act (Byrd Amendment) , who stated that 
the implementing Member "may choose either to withdraw or modify"220 the WTO-inconsistent 
measure in exercising its discretion to select the a ppropriate means of implementation.  In addition, 
the question of the WTO-consistency of measures even tually taken by Colombia  to comply with the 
recommendations and rulings of th e DSB is beyond my mandate in these proceedings, and would fall 
within the purview of Article 21.5 proceedings. 
78. Accordingly, I make my determination on the basis of the shortest period of time possible 
within Colombia's domestic legal system to modi fy the indicative prices mechanism and the ports of 
entry measure so as to bring them into conformity with its WTO obligations.  In so doing, I follow the 
                                                      
218Panama's submission, para. 46 (quoting Award of the Arbitrator, Brazil – Retreaded Tyres 
(Article 21.3(c)),  para. 48, in turn quoting Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  
para. 27).  
219Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  para. 27.  
220Award of the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)),  para. 50. (emphasis 
omitted)  WT/DS366/13 
 Page 33 
 
 
guidance of the arbitrator in Canada – Pharmaceutical Patents that "the legally binding, as opposed 
to the discretionary, nature of the component step s leading to implementation should be taken into 
account"221, and have weighed each of the component steps and timeframes proposed by Colombia 
accordingly.   
79. In making my determination, I also pay heed  to the statement of the arbitrator in Chile – Price 
Band System  that the implementing Member must "at the very least" promptly take concrete steps 
towards implementation from the date of adoption of the panel or Appellate Body reports by the 
DSB.222  Accordingly, I should take into account any action or inaction by Colombia in the period of 
time comprised between the date of adoption of th e Panel Report by the DSB and the initiation of 
these arbitration proceedings when determining th e reasonable period of time for implementation.  
80. Since the adoption of the Panel Report, Co lombia has established an Inter-Institutional 
Working Group (Grupo de Trabajo Interinstitucional) , composed of representatives of the Ministry of 
Trade, Industry and Tourism, and of the DIAN, to  evaluate how to implement the recommendations 
and rulings of the DSB.  This initiative, in my  opinion, goes beyond mere "internal discussions"223, as 
argued by Panama, insofar as it establishes an ins titutional framework responsible for proposing and 
coordinating an administrative plan of action for impl ementation.  As noted by a previous arbitrator, 
"consultations within governmental agencies ar e typically a concomitant of lawmaking in 
contemporary polities"224, and therefore should be taken into  account when fixing the reasonable 
period of time for implementation.  Therefore, I cons ider the work of such Inter-Institutional Working 
Group relevant to my determination.   
81. I note further that during the oral hearing Co lombia informed that  the Inter-Institutional 
Working Group has concluded its work.  I am theref ore satisfied that Colombia has completed all 
preliminary evaluation stages outlined in its implementation proposal225, and therefore is expected to 
speedily proceed with the legal pr ocess necessary to bring the measures found to be inconsistent into 
conformity.       
                                                      
221Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)),  para. 51. (emphasis 
omitted) 
222Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)),  para. 43.  See also Award of 
the Arbitrator, US – Section 110(5) Copyright Act (Article 21.3(c)),  para. 46. 
223Panama's submission, para. 42 (quoting Award of the Arbitrator, EC – Chicken Cuts 
(Article 21.3(c)),  para. 66).  
224Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)),  para. 42.  
225This includes the assessment of domestic laws impacted by implementation of the Panel's findings, 
comparative studies, studies of WTO-consistency of poss ible alternatives, WCO practices, and consistency of 
implementing measures with Andean Community law. WT/DS366/13 
Page 34  
 
82. Turning to the legal process necessary to modify  the measures found to be inconsistent by the 
Panel, Colombia has established to my satisfact ion that a number of the component steps for 
implementation seem to be administratively mandate d.  Specifically, Colombia has shown that the 
process for modifying both the indicative prices mechanism and the ports of entry measure consists of:  (i) an internal decision-making process with in the DIAN, pursuant to Resolution 457/2008 and 
Administrative Order 0002
226;  (ii) review of any new customs procedures by the Department of 
Public Administration, pursuant to Article 2 of Decree 4669/2005227;  (iii) review of new measures by 
the Triple A Committee, the Ministry of Trade, I ndustry and Tourism, and the Ministry of Finance, 
pursuant to Decrees 3303/2006,  210/2003, and 4646/2006228; and (iv) signature by the President of 
Colombia and publication in the Diario Oficial .229   
83. However, I also observe that the various regulations brought to the fore by Colombia do not 
seem to prescribe minimum mandatory timeframes, and when they do, such timeframes are rather 
short.  For example, as Panama points out, Article  2, paragraph 3 of Resolution 457/2008 establishes a 
period of 13 working days for the "formalization of procedures" within the DIAN, but otherwise does not seem to set minimum periods for the DIAN's decision-making process.  Likewise, Colombia has 
not established that Decrees 4669/2005, 210/2003, a nd 4646/2006 provide for specific time-limits for 
the reviews of the Department of Public Administration, the Ministry of Trade, Industry and Tourism, and the Ministry of Finance, respectively.  Si milarly, Articles 3 and 4 of Decree 3303/2006 establish 
that the Triple A Committee can meet between re gular sessions at any time, within 5 days of a 
meeting being called by its President.
230  Therefore, I consider that Colombia's administrative 
decision-making process is "characterized by a considerable degree of flexibility"231, and expect 
Colombia to make use of such flexibility in order to ensure prompt compliance with the 
recommendations and rulings of the DSB.   
84. In addition, some of the steps outlined by Co lombia seem duplicative, and many could be 
pursued in parallel, to the extent  that they are not necessarily seque ntial.  For example, a careful 
review of Article 2 of Decree 3303/2006 reveals th at representatives of the Ministry of Trade, 
Industry and Tourism and the Ministry of Finance,  as well as the Director-Gen eral of the DIAN, are 
members of the Triple A Committee.  This, in my  view, significantly reduces the time necessary to 
seek additional review of the implementing measures by those Ministries, whose views are likely to 
                                                      
226Colombia's submission, paras. 86 and 87 and Arbitration Exhibits COL-1 and COL-2.  
227Colombia's submission, para 88 (referring to Arbitration Exhibit COL-4).  
228Colombia's submission, paras. 89 and 90 (referring to Arbitration Exhibit COL-5).  See also 
Arbitration Exhibit PAN-11.  
229Colombia's submission, paras. 91 and 92.  
230In this respect, I do not consid er that convening a meeting of the Triple A Committee between 
regular quarterly sessions amounts to recourse to "extraordinary procedures".   
231Award of the Arbitrator, US – 1916 Act (Article 21.3(c)),  para. 39.   WT/DS366/13 
 Page 35 
 
 
be taken into account within the ambit of the Tr iple A Committee.  Simila rly, I consider that 
additional time will not be necessary for the ela boration of specific DIAN Resolutions modifying the 
existing indicative prices mechanism, becau se such amendments could be prepared in tandem  with the 
reform of the underlying Decree 2685/1999 and of Resolution 4240/2000, and simply be enacted shortly after the publication of the amended measures in the Diario Oficial .             
85. On the other hand, I am not convinced that  a broad reform of numerous provisions of 
Colombia's Commercial Code concerning customs secu rities is relevant for my determination, as 
suggested by Colombia.  It may well be the case that  Colombia considers it desirable to reform its 
customs securities statutes in order to ensure that gua rantees are effectively available in the context of 
its revised customs control system.  However, th e relevant recommendations and rulings of the DSB 
concern the use of indicative prices for customs valu ation purposes and certain r estrictions on ports of 
entry.  I find the situation here analogous to the one faced by the arbitrator in EC – Tariff Preferences, 
where the European Communities proposed a wider refo rm of its Generalized System of Preferences 
("GSP") scheme as part of its implementation of th e recommendations and rulings of the DSB in that 
dispute.
232  In rejecting the relevance of such wider refo rm for his determination, the arbitrator held 
that his "determination as to the reasonable period of time for implementation ... must have regard 
only to the shortest period possible within the legal system of the European Communities to bring the Drug Arrangements into conform ity with its WTO obligations."
233  Therefore, "[t]he mere fact that the 
European Communities ... decided to incorporate the task of implementation within the larger 
objective of reforming its overall GSP scheme [could not ] lead to a determination of a shorter, or 
longer, reasonable period of time."234   
86. Similarly, the mere fact that Colombia contem plates a wider reform of its customs securities 
statutes together with the implementation of the DSB's recommendations and rulings cannot lead to a 
determination of a longer period of time, insofa r as the measures that have to be brought into 
conformity are the indicative prices mechanism and the ports of entry measure.  In any event, even 
assuming that the reform of Colombia's statutory provisions on customs securities is relevant for my consideration, Colombia explained during the oral  hearing that such legislative reforms can be 
enacted within the same timeframe estimated for th e completion of the remainder of its regulatory and 
administrative implementing measures.     
87. Finally, I do not attribute significance to st eps such as the implementation of the revised 
measures into Colombia's computerized system of customs control and the training of DIAN officials 
                                                     
 
232See Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)) , para. 29. 
233Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)),  para. 31. 
234Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)),  para. 31.  WT/DS366/13 
Page 36  
 
to familiarize them with the revised customs control mechanism.  These particular steps seem 
consequential, rather than pre-requi sites, to the enactment of Colombia 's modified measures.  In this 
context, I concur with the statement of the arbitrator in Canada – Pharmaceutical Patents  that "the 
determination of a 'reasonable period of time' must be a legal judgement based on an examination of 
relevant legal requirements"
235 for the enactment of the impl ementing measures.  Colombia's 
component steps of incorporating its revised meas ures into its computerized system of customs 
control and the training of offici als in the new system, are merely derivative, or consequential, upon 
the completion of the legal process necessary to the enactment of the implementing measures, and thus, in my view, do not justify a longer period of time for implementation.                
2. Particular Circumstances
 
(a) Need for Legislative and Administrative Action  
88. I turn to the specific "particular circumstan ces" that, according to Colombia, justify a 
reasonable period of time of "at least" 15 months to  implement the recommendations and rulings of 
the DSB.  Initially, Colombia argues that the impl ementation of the Panel's "as such" findings will 
require it to amend its laws  and regulations and to issue new rules of general application.  Referring to 
previous arbitrators, Colombia argues that its im plementation will involve "legislative and regulatory 
decision making", which entails "setting new rules"  and is therefore more time-consuming than 
"administrative decision-making", which simp ly involves applying existing regulations.236   
89. Panama responds that Colombia has the flex ibility to implement the recommendations and 
rulings of the DSB exclusively thro ugh administrative means.  Panama notes that all the measures 
found by the Panel to be inconsistent with Colomb ia's WTO obligations are administrative acts issued 
by the Executive Branch of the Colombian Govern ment.  Therefore, Panama emphasizes that the 
authority to amend Decree 2685/1999, Resolution 4240/2000, and Resolution 7373/2007, as well as 
various Resolutions establishing indicative prices, rests with Colombia's administrative authorities.237  
                                                      
235Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)),  para. 52.  
236Colombia's submission, para. 78 (referring to Award of the Arbitrator, US – Gambling 
(Article 21.3(c)) , para. 35).  
237According to Panama, the authority to modify Artic le 128.5 e) of Decree 2685/1999 rests with the 
President of Colombia, pursuant to paragraph 25 of Ar ticle 189 of Colombia's Cons titution, having heard the 
views of the Triple A Committee;  Paragraph 12 of Article 6 of Decree 4048/2008 confers upon the Director-
General of the DIAN, the authority to amend Resolution 7373/2007 and Article 172.7 of Resolution 4240/2000;  
and paragraph 6 of Article 28 of Decree 4048/2008 grants the Sub-Directorate of the Customs Technical 
Management ( Subdirección de Gestión Técnica Aduanera ) the authority to modify various Resolutions 
establishing indicative prices.  (Panama's submission, paras. 73, 76, 81, and 83)     WT/DS366/13 
 Page 37 
 
 
Panama adds that Colombia's expedient repeal of similar measures following a mutually agreed 
solution reached with Panama on 31 October 2006 illustrates that Colombia can withdraw the 
measures at issue in this dispute almost immediately. 
90. Initially, I agree with the distinction made  by Colombia following the guidance of the 
arbitrator in US – Gambling that "[l]egislative action will, as a general rule, require more time than 
regulatory rulemaking, which in turn will normally n eed more time than implementation that can be 
achieved by means of an administrative decision."238  Thus, in making my determination, I consider 
that legislative means are generally more time-cons uming than regulatory rulemaking, which in turn 
is more lengthy than simple administrative action.  In the light of the proposed means of implementation outlined by Colombia, it seems reas onable to assume that Colombia will have to 
engage in a certain degree of regulatory rulema king in order to modify both its customs control 
system and its ports of entry measure.  This acti on, in my view, may be more time-consuming than 
mere administrative decision on th e basis of existing rules.   
91. However, I am not persuaded that implementa tion of the recommendations and rulings of the 
DSB in this dispute will also require legislative act ion.  The only action that according to Colombia 
would entail a legislative process is an amendment to the provisions of its Commercial Code dealing 
with custom securities.  As noted earlier, I do not co nsider that this element of a broader reform of 
Colombia's customs control system can lead to  the assessment of a longer period of time for 
implementation insofar as the recommendations and ru lings of the DSB concern the use of indicative 
prices for customs valuation purposes and certa in restrictions on ports of entry.   
92. With the exception of the legislative process required for the amendment of Colombia's 
Commercial Code, all other implementing steps proposed by Colombia require regulatory or 
administrative rulemaking, in the sense that they can be accomplished solely by the Executive Branch 
of the Colombian Government.
239  Indeed, as Panama points out, the authority to amend the measures 
found to be inconsistent by the Panel rests either  with the President of Colombia, under Article 189, 
paragraph 25, of Colombia's Political Constitution, or  with various DIAN officials, pursuant to Decree 
4048/2008.  Accordingly, I consider that Colomb ia's implementation of the recommendations and 
rulings of the DSB can be accomplished in a shorte r period of time than would have been necessary 
had recourse to legislative means been required.  
                                                      
238Award of the Arbitrator, US – Gambling (Article 21.3(c)),  para. 35. 
239For the distinction between legislative and admini strative processes, see Aw ard of the Arbitrator, EC 
– Chicken Cuts (Article 21.3(c)),  para. 67.  WT/DS366/13 
Page 38  
 
93. During the oral hearing, Colombia argued that some of the measures found to be inconsistent 
by the Panel, particularly Decree 2685/1999, have the status of " Leyes Marcos " under municipal law.  
According to Colombia, such Leyes Marcos  have the status of legislation under Colombian law and, 
for this reason, require a more time-consuming modification process.  Although Decree 2685/1999 
may have a certain status under Colombian law, I ha ve not been persuaded that amendment of such 
Leyes Marcos  cannot be accomplished by the Executive Br anch.  Indeed, Colombia has not argued 
that legislative action is required to amend Decree 2685/1999;  rather, it has argued that Presidential 
action is required. 
94. Moreover, I agree with Panama that the pr evious repeal of similar measures in 2006 
demonstrates that Colombia retains considerable  flexibility to implement the recommendations and 
rulings of the DSB exclusively through administrative means.  Colombia is correct in arguing that the 
circumstances surrounding the previous repeal of  similar measures were "fundamentally different"
240, 
insofar as the measures were withdrawn as a re sult of the execution of a Customs Cooperation 
Protocol between Colombia and Panama.  In additi on, as noted earlier, I agree with Colombia that 
implementation through modification—rather than wit hdrawal—of the measures at issue, is within the 
range of actions that can be taken to implement th e recommendations and rulings of the DSB.  At the 
same time, however, with the exception of the authority necessary to modify Decree 2685/1999, I 
consider that Panama has demonstrated that the legal authority to modify the measures found to be 
inconsistent by the Panel is not substantially different from the one  used by Colombia to repeal 
similar measures in 2006.241  For this reason, I attribute some significance to the previous repeal of 
similar measures in reaching my determination.242   
(b) Complexity of Implementing Measures 
95. Colombia argues further that the complexity  of amending measures relating to customs 
control and enforcement is a "particular circumstance " that would justify a longer period of time for 
implementation.  Colombia suggests that the field of  anti-smuggling is heavily regulated by a series of 
"interdependent and overlapping"243 regulations that may have to be modified as a result of its 
                                                      
240Colombia's submission, para. 61.  
241Indeed, Colombia repealed similar measures in 2006 through Resolutions 12950/2006 and 
12956/2006, and Resolution 13034/2006.  These Resolutions were taken by various DIAN officials pursuant to 
the authority conferred upon them by Articles 23 and 19(i) of Decree 1071/1999.  These provisions were 
replaced by paragraph 12 of Article 6 and paragraph 6 of Article 28 of Decree 4048/2008, which currently provide the DIAN's Director-General an d Sub-Director of Customs Technical Management with the authority to 
regulate customs matters and modify reference prices.  At the oral hearing, Colombia confirmed that these 
provisions serve as the current basi s for the authority previously confe rred on DIAN officials by Decree 
1071/1999.  (Panama's submission, paras. 75-84 and Arbitration Exhibits PAN-12 and PAN-13)       
242In a similar vein, see Award of the Arbitrator, US – Gambling (Article 21.3(c)),  para. 55.    
243Colombia's submission, para. 95.   WT/DS366/13 
 Page 39 
 
 
implementation.  Colombia adds that the amendm ent of both the indicative prices mechanism and the 
ports of entry measure may impact the "entire anti-smuggling legal framework"244, whilst its 
concurrent objective that the implementing measure s secure customs control and enforcement render 
implementation particularly complex. 
96. Panama disagrees with Colombia that the alleged complexity of measures relating to 
Colombia's customs control and enforcement cons titutes a "particular circumstance" justifying a 
longer period of time for implementation.  Pa nama considers that the measures "in and of 
themselves"245 are not complex, nor is the process for amending them complex.  For Panama, 
Colombia's arguments relate to the "contentiousn ess" of these measures in Colombia, a factor that 
several arbitrators have dismissed as a "particular circumstance" in their determination of the reasonable period of time.
246 
97. In response to questioning at the oral hearing, Colombia provided a list of the legal provisions 
that it considers may be impacted by its implemen tation of the recommendations and rulings of the 
DSB.  This list consisted of several diffe rent provisions of Decree 2685/1999 and Resolution 
4240/2000247, as well as Resolution 7373/2007, as amended.  In my view, the fact that a number of 
provisions in Decree 2685/1999 and Resolution 4240/2000 may be impacted by the amendment of the 
specific provisions found to be inconsistent by th e Panel does not render implementation particularly 
complex.  I am not persuaded that modifying differe nt provisions of the same legal instruments cannot 
be done with the same legal process regardless of wh ether it concerns a few or many provisions of 
that legal instrument.  To the contrary, the fact that amendments to the WTO-inconsistent measures 
may impact other provisions of the legal instruments in which they are contained seems to be part and 
parcel of any regulatory decision-making process.   
98. Colombia has identified customs control and enforcement concerns in the areas of anti-
smuggling, contraband, drug trafficking, and under-i nvoicing as an element that adds complexity to 
its implementation of the recommendations and rulings of the DSB.248  Although I recognize, like the 
Panel, the importance of such legitimate objectives , Colombia has not identified which additional 
laws and regulations could be impacted by the amendments of th e measures that have been found to 
be inconsistent with its WTO obligations, nor h as Colombia sufficiently expounded the nature or 
                                                      
244Colombia's submission, para. 96.  
245Panama's submission, para. 92.  
246Panama's submission, para. 92 (referring to Award of the Arbitrator, US – Offset Act (Byrd 
Amendment) (Article 21.3(c)),  para. 61;  and Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)),  para. 47).  
247Colombia listed, inter alia , Articles 121, 237, 253, 254, 502, 502.1, and 548 of Decree 2685/1999, 
and Articles 170, 431.1, 431.2, 503, and 507 of Resolution 4240/2000.  
248Colombia's submission, para. 93.  WT/DS366/13 
Page 40  
 
effect of that impact or interconnection.  Absen t specific demonstration that implementation would 
impact a "myriad of interc onnected and overlapping laws"
249 concerning customs control and 
enforcement, I am not able to conclude that  the implementation process would be as complex as 
Colombia suggests.  Accordingly, I attach little  significance to this element as a "particular 
circumstance" justifying a longer period of time for implementation.                  
(c) Importance of the Measure in the Domestic System  
99. Colombia refers to the importance of the me asures in its domestic legal system as a third 
"particular circumstance" justifying a longer peri od of time for implementation.  According to 
Colombia, the Panel acknowledged th e existence of a serious probl em of contraband from Panama 
linked to money-laundering and drug trafficking,  and recognized that under-invoicing and smuggling 
are "a relatively more important reality fo r Colombia than for many other countries".250  F o r  
Colombia, the importance of ensuring that new measures address the complex economic, social, and 
political issues facing Colombia, and that such meas ures "are integrated with minimal disruption to 
the efficacy of the existing anti-smuggling regime"251, justifies the assessment of a longer period of 
time for implementation.  
100. Panama dismisses the importance of the indicative prices mechanism and the ports of entry 
measure in Colombia's domestic system as a "parti cular circumstance" justifying a longer period of 
time for implementation.  Panama distinguishes the facts of this dis pute from the facts in Chile – 
Price Band System , where the arbitrator found that the price band system was so "fundamentally 
integrated"252 into the agricultural policies of Chile over a period of 20 years that its "unique role and 
impact" on Chilean society was taken into account as a "particular circumstance".  In contrast, 
Colombia's indicative prices mechanism and the ports  of entry measure have been adopted in the 
course of the last five years, and therefore Colo mbia has not demonstrated their "unique role and 
impact" on Colombian society.253 
                                                      
249Award of the Arbitrator, US – Gambling (Article 21.3(c)),  para. 46.  
250Colombia's submission, para. 104 (quoting Panel Report, para. 7.566).  
251Colombia's submission, para. 106.  
252Panama's submission, para. 92 (referring to Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)) , para. 47).   
253Panama's submission, para. 92.   WT/DS366/13 
 Page 41 
 
 
101. At the outset, I recognize that combating under-invoicing, smuggling, contraband, and 
money-laundering associated with drug trafficking is of the utmost importance for Colombia.  I recall 
that the Panel noted that "combating under-invoicing and money laundering associated with drug 
trafficking is a relatively more important realit y for Colombia than for many other countries."254  At 
the same time, I also note that the Panel was unabl e to conclude that the ports of entry measure 
contributed to combating customs fraud and contraband in Colombia.255   
102. In support of its request for a longer period of  time for implementation due to the importance 
of the measures at issue, Colombia re lies on the award of the arbitrator in Chile – Price Band System , 
where the arbitrator considered that the importance of the price band system in Chilean society was a 
"particular circumstance" justifying a longer period of time for implementation.  The arbitrator found 
that: 
... the longstanding nature of the [p rice band system], its fundamental 
integration into the central agricultural policies of Chile, its price-
determinative regulatory position in  Chile's agricultural policy, and 
its intricacy, I find its unique role and impact on Chilean society is a relevant factor in my determina tion of the "reasonable period of 
time" for implementation.
256 
I find these considerations persuasive and consider  it incumbent upon Colombia to demonstrate the 
"unique role and impact"257 of the challenged measures in Colombia's customs control and 
enforcement regime in order to justify a longer period of time.    
103. However, Colombia has not established in what  way the indicative prices mechanism and the 
ports of entry measure operate as "essential pillars"258 of the regulatory regime it adopted to combat 
under-invoicing, smuggling, and contraband.  Even if this were the case, Colombia has not demonstrated how the relative importance of th ese measures in its overall customs control and 
enforcement framework for combating under-invoi cing, smuggling, and contraband impact the 
implementing process in a manner that justifies th e assessment of a longer reasonable period of time 
for implementation.    
                                                     
 
254Panel Report, para. 7.566.  
255See Panel Report, paras. 7.588 and 7.618.  
256Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)),  para. 48.  
257Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)),  para. 48.  
258Colombia's submission, para. 8.  WT/DS366/13 
Page 42  
 
(d) Developing Country Status  
104. Finally, both Colombia and Panama argue that Article 21.2 of the DSU requires me to take 
into account their respective status as developing countries in determining the reasonable period of 
time for implementation.  Colombia argues that its status as a "developing country affected by the 
global economic crisis, in a continuing fight ag ainst contraband-related money-laundering and drug-
trafficking"
259 warrants the assessment of a longer reasonable period of time, whilst Panama's 
developing country status is irrelevant because Panama has not demonstrated it is currently 
experiencing "daunting financial woes".260  In contrast, Panama considers that Colombia has not 
demonstrated that it is in a "dire economic or financial situation"261 that would justify a longer period 
of time for implementation;  instead, it is Pana ma's own status as a developing country adversely 
affected by WTO-inconsistent measures  that should be taken into account.  
105. Article 21.2 of the DSU provides:  
Particular attention should be paid to matters affecting the interests of 
developing country Members with respect to measures which have 
been subject to dispute settlement.  
106. I recognize that Colombia's developing country st atus might affect the time within which it 
can implement the recommendations and rulings of the DSB.  However, like past arbitrators, I 
consider that Article 21.2 of the DSU directs arbitrators acting under Article 21.3(c) to pay 
"'[p]articular attention' to 'ma tters affecting the interests' of both an implementing and complaining 
developing country Member or Members"262, given that the scope of this provision is not textually 
limited to either of these parties.  For this reas on, in a situation where both the implementing and the 
complaining Member are developing countries, the requirement provided in Article 21.2 is of little 
relevance, except if one party succeeds in demonstrating that it is more severely affected by problems 
related to its developing country stat us than the other party.  In this case, I do not consider that either 
Colombia or Panama have demonstrated that th e challenges they face as developing countries are 
relatively more severe than the ones faced by the other party.    
107. For this reason, the developing country status of both parties has not swayed me to either a 
longer, or a shorter, "reasonable period of time". 
                                                      
259Colombia's submission, para. 113.  
260Colombia's submission, para. 113 (quoting Award of the Arbitrator, Chile – Price Band System 
(Article 21.3(c)),  para. 56).  
261Panama's submission, para. 95 (referring to Award of the Arbitrator, Indonesia-Autos 
(Article 21.3(c)),  para. 24.   
262Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)) , para. 99.  WT/DS366/13 
 Page 43 
 
 
108. Finally, I note Panama's alternative request that  I determine two separa te "reasonable periods 
of time":  a longer period of time for the indicative prices mechanism, considering that an amendment 
to Decree 2685/1999 may require Pr esidential action and review by the Triple A Committee;  and a 
shorter period of time for the ports of entry me asure, because Resolution 7373/2007 and subsequent 
extensions may be modified exclusively by the DIAN through ordinary administrative procedures.263 
109. In US – Gambling , the arbitrator did not exclude the possibility that an arbitrator might be 
able to establish separate reasonable periods of time for separate measures.264  Irrespective of whether 
Article 21.3(c) would permit me to establish two different reasonable periods of time for the two 
different measures at issue, I do not consider it appr opriate, in this arbitration, to determine separate 
periods of time for bringing the indicative prices mechanism and the ports of entry measure into 
conformity.   
IV. Award 
110. In sum, I consider that Colombia has promp tly initiated and already concluded preliminary 
evaluation steps in the 4 months and 12 days that have lapsed to date since the adoption of the 
recommendations and rulings of the DSB, and shoul d have started speedily with the regulatory 
process necessary to modify its WTO-inconsistent measures.265  In addition, I conclude that Colombia 
has sufficient flexibility to modify its indicative prices mechanism and its po rts of entry measure, 
including review of its implementing measures by di fferent organs of its Executive Branch, within a 
few months.  Subsequently, a limited amount of ti me will be necessary for Colombia to procure the 
signature of its amending measures by the Presi dent, and their subsequent publication in the Diario 
Oficial .  Further steps, such as the implementati on of the amended measures in Colombia's 
computerized customs administration system and the training of DIAN officials, for the reasons stated 
above, do not justify the assessment of a longer reasonabl e period of time.  On this basis, I consider 
that Colombia can implement the DSB's reco mmendations and rulings by the beginning of 
February 2010.    
                                                      
263Panama's submission, paras. 99-101.   
264Award of the Arbitrator, US – Gambling (Article 21.3(c)) , para. 41.  In particular, the arbitrator was 
not persuaded that the mere use of the indefinite article "a" in the phrase "a reasonable period of time" suffices 
to establish definitively that an arbitrator is authorized to determine only a single reasonable period of time for 
implementation in a dispute.  Nor was he persuaded that it is possible to determine two separate reasonable 
periods of time in respect of the same measure. (original emphasis) 
265As I have noted earlier, any measure of a legislativ e character that Colombia  may wish to adopt in 
order to amend its customs securities laws, although not strictly required to implement the recommendations and 
rulings of the DSB, can be accomplished in the same period of time estimated by Colombia for its regulatory 
amendment of the measures at issue (see supra , paras. 85, 86 and 91).    WT/DS366/13 
Page 44  
 
111. Accordingly, I determine that the reasonable period of time for Colombia to implement the 
recommendations and rulings of the DSB in this dis pute is eight months and 15 days from the date of 
adoption of the Panel Report.  The reasonable period of time will thus end on 4 February 2010.     
 
Signed in the original at Geneva this 15th day of September 2009 by: 
 
  
 
 
________________________ 
Giorgio Sacerdoti 
Arbitrator