WT/DS295/R 
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ANNEX A 
  
Responses of the United States to Mexico's request for a preliminary ruling 
  
Content Page 
Annex A-1 Responses of the United States A-2 
  
 WT/DS295/R 
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ANNEX A-1 
 
 
RESPONSES OF THE UNITED STATES 
 
7 May 2004 
 
TABLE OF CONTENTS 
Page No. 
 
I.
 INTRODUCTION ................................................................................................................... .3 
II. STATEMENT OF FACTS.......................................................................................................3  
III. THE REQUIREMENTS OF DSU ARTICLE 6.2..................................................................4  
IV. CONTRARY TO MEXICO’S ALLEGATIONS, THE US PANEL REQUEST 
PROVIDES A BRIEF SUMMARY OF THE LEGAL BASIS OF THE 
COMPLAINT SUFFICIENT TO PRES ENT THE PROBLEM CLEARLY .....................5  
V. THE US PANEL REQUEST DOES NO T PREJUDICE THE ABILITY OF 
MEXICO TO DEFEND ITSELF ............................................................................................6  
VI. MEXICO’S ASSERTION THAT THE US PANEL REQUEST DOES NOT IDENTIFY ARTICLE 366 OF THE FEDERAL CODE OF CIVIL PROCEDURE AS A “SPECIFIC MEASURE AT ISSUE” IS INCORRECT ...................7
 
VII. MEXICO’S CHALLENGES TO TH E ADEQUACY OF CONSULTATIONS 
LACK MERIT ..................................................................................................................... .....8 
VIII.  CONCLUSION ..................................................................................................................... ..10 
 
  WT/DS295/R 
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I. INTRODUCTION 
1. Mexico offers no legitimate basis for its request for a preliminary ruling (“Mexico’s 
Request”) that the US panel request in this dispute fails to meet the requirements of Article 6.2 of the 
Understanding on the Rules and Procedures Governing the Settlement of Disputes  (“DSU”).  To the 
contrary, as required by Article 6.2, the US panel request properly “identif[ies] the specific measures 
at issue and provide[s] a brief summary of the lega l basis of the complaint sufficient to present the 
problem clearly”.  2. Mexico is seeking to have this Panel read in to Article 6.2 a requirement that is not there and 
that the Appellate Body has specifically reject ed: namely, that the United States summarize the 
specific legal arguments to be presented in the first US submission.  The Appellate Body in 
EC Bananas
1 has already rejected the suggestion that a complaining party must summarize its legal 
arguments in the panel request, a nd this Panel should do so as well. 
 3. Mexico is also seeking to have this Panel fi nd that the US panel request does not “identify the 
specific measure” with respect to one  of the measures at issue in this dispute, Article 366 of Mexico’s 
Federal Code of Civil Procedure (“FCCP”).  Inasmuch  as Article 366 is specifically identified in the 
panel request, there is no basis for such a finding.  4. Mexico has also failed to provide any legiti mate basis for its argument that the US panel 
request is inconsistent with Articles 4.5 and 4. 7 of the DSU, or Articles 17.4 and 17.5 of the 
Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994  
(“AD Agreement”).  The gist of Mexico’s argument is  that the US panel request contains legal claims 
that were not the subject of consultations.  Mexico  fails to recognize that it is the panel request, and 
not the consultation request, that establis hes the scope for this Panel’s work. 
 II. STATEMENT OF FACTS 
5. The United States requested formal dispute settlement consultations with Mexico on the 
definitive anti-dumping measures on beef and rice, and on various provisions of Mexico’s Foreign 
Trade Act and Article 366 of the FCCP, on 16 June 2003.
2  The United States and Mexico held two 
days of consultations with respect to the measur es in Mexico City, on 31 July and 1 August 2003, but 
failed to resolve the dispute. 
 
6. Consequently, on 19 September 2003, the Un ited States requested the establishment of a 
panel, specifically identifying the definitive anti- dumping measure on rice, Articles 53, 64, 68, 89D, 
93V, and 97 of the Foreign Trade Act, and Article 366 of the FCCP as the specific measures at issue, 
and providing a brief summary of the legal basis of the complaint.3  The Panel was established on 
7 November 2003.4 
 
                                                      
1 Appellate Body Report on European Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 1997, para. 141 (“ EC Bananas AB ”). 
2 Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, Reque st for Consultations by the 
United States , WT/DS295/1, G/L/631, G/ADP/D50/1, G/SCM/D54/1, circulated 23 June 2003 (“US 
Consultation Request”). 
3 Mexico – Definitive Anti-Dumping Meas ures on Beef and Rice, Request for the Establishment of a 
Panel by the United States , WT/DS295/2, circulated 22 September 2003 (“US Panel Request”). 
4 Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, Constitu tion of the Panel Established 
at the Request of the United St ates, Note by the Secretariat , WT/DS295/3 (19 February 2004). WT/DS295/R 
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III. THE REQUIREMENTS OF DSU ARTICLE 6.2 
7. Article 6.2 of the DSU requires, in relevant  part, that a request for the establishment of a 
panel “identify the specific measures at issue and pr ovide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly”.  
8. Mexico’s Request contains a number of  quotations from Appellate Body reports  that explain 
this provision and emphasize its role and importan ce in dispute settlement.  It has entirely missed, 
however, one aspect of these reports that is critical to the issue now before this Panel:  the key 
distinction between claims  – which must be included in the panel request – and the arguments  in 
support of those claims – which need not be in cluded.  As the Appellate Body explained in 
EC Bananas : 
 
In our view, there is a significant difference between the claims  identified in the 
request for the establishment of a panel, which establish the panel’s terms of reference under Article 7 of the DSU, and the arguments supporting those 
claims, which are set out and progressively clarified in the first written 
submissions, the rebuttal submissions and the first and second panel meetings with the parties.
5 
9. Furthermore, the Appellate Body in EC Bananas  made clear that a panel request may in some 
cases adequately state a claim if the request si mply cites the pertinent provision of the WTO 
agreement: 
 
We accept the Panel’s view that it was suffi cient for the Complaining Parties to list 
the provisions of the specific agreements alleged to have been violated without 
setting out detailed arguments as to which specific aspects of the measures at issue 
relate to which specific provisions of those agreements .6 
10. Mexico also fails to note that – according to  the Appellate Body – even in cases where simply 
citing the pertinent provisions would not satisfy the requirements of Article 6.2, the Panel is not 
automatically deprived of jurisdiction over the ma tter.  Rather, the Appellate Body has found that a 
panel must examine, based on the “particular ci rcumstances of the case”, whether the defect has 
prejudiced the ability of the responding party to defend itself given the actual course of the panel 
proceedings.  As the Appe llate Body explained in Korea Dairy : 
 
In assessing whether the European Commun ities’ request met the requirements of 
Article 6.2 of the DSU, we consider that, in view of the particular circumstances of this case and in line with the lette r and spirit of Article 6.2, the 
European Communities’ request should have been more detailed.  However, Korea 
failed to demonstrate to us that the mere listing of the articles asserted to have been 
violated has prejudiced its ability to defend itself in the course of the Panel 
proceedings.  Korea did assert that it had sustained prejudice, but offered no 
supporting particulars in its appellant’s  submission nor at the oral hearing .  We, 
therefore, deny Korea’s appeal relating to the consistency of the European Communities’ request for the estab lishment of a panel with Article 6.2 of 
the DSU.
7 
                                                      
5 EC Bananas AB , para. 141.   
6 Id. (emphasis added). 
7 Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products , WT/DS98/AB/R, 
adopted 12 January 2000, para 131 (“ Korea Dairy ”) (emphasis added).  The Appellate Body concluded in  WT/DS295/R 
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11. Therefore, in evaluating claims that a panel request fails to provide a brief summary of the 
legal basis of the complaint sufficient to present th e problem clearly, as required by DSU Article 6.2, 
the Panel may consider the particular circumstanc es of the dispute, including whether the responding 
party has been prejudiced.  
12. Mexico asserts that the US panel request (1 ) does not provide a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly;  and (2) does not identify the “specific 
measure at issue” with respect to Article 366 of the FCCP, and that Mexico has thereby been 
prejudiced.  As detailed in the sections that follo w, Mexico’s objections are wrong on both counts. 
 IV. CONTRARY TO MEXICO’S ALLEGATIONS, THE US PANEL REQUEST 
PROVIDES A BRIEF SUMMARY OF TH E LEGAL BASIS OF THE COMPLAINT 
SUFFICIENT TO PRESENT THE PROBLEM CLEARLY 
13. The first of Mexico’s complaints about the US panel request is that the request is too vague, 
and that it allegedly does not provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly, as Article 6.2 requires.  Mexico’s complaint is groundless. 
 14. It is important to note at the outset that Mexico only challenges the sufficiency of the US 
panel request with respect to a few of the US claims.
8  Accordingly, the United States is proceeding 
under the assumption that Mexico considers the ot her claims that it did not challenge in its 
preliminary ruling request as being sufficient for purposes of Article 6.2.9 
 
15. With respect to the claims that Mexico do es challenge, the US panel request does provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly, as required 
by Article 6.2.  It both lists the specif ic provisions of the AD Agreement and the General Agreement 
on Tariffs and Trade 1994  (“GATT 1994”) alleged to be violated, and provides, in addition, a brief 
textual explanation of the basis of the complaint. 
 16. Turning first to subsections 1(f) and (g) of the US panel request, the United States lists 15 
specific provisions of the AD Agreement (including five specific paragraphs of Annex II of the 
AD Agreement).  Mexico has failed to provide an y reason as to why citing these specific provisions 
was insufficient under DSU Article 6.2.  For exampl e, Mexico has made no effort to explain why it 
was unclear from the US citation of Article 6.8 a nd Annex II (the “facts available” provisions) of the 
AD Agreement that the United States was challenging Me xico’s use of the facts available in assigning 
anti-dumping margins to Producers Rice (in subsection 1(f)) and all of the rest of the exporters and 
producers in the United States that Mexico did not individually examine (in subsection 1(g)).  
17. On the contrary, Mexico concedes  that the US request in fact asserts that Mexico’s 
application of the facts available to those entities br eached the listed provisions.  What it objects to is 
that it believes the United States has not adequately explained how
 Mexico’s application of the facts 
available breached each of the provisions (in othe r words, the United States did not in its panel 
request provide arguments  to support its claims).10  As noted above, previous  panels and the Appellate 
Body have been very careful to distinguish between the claims that must be made in a panel request 
under Article 6.2 – i.e., the brief summary of the legal basis  for the complaint sufficient to present the 
                                                                                                                                                                     
Korea Dairy  that simply listing the articles of the agreement involved may not be sufficient if, for example, the 
articles listed established multiple obligations.  Id., para. 124.   
8 Specifically, Mexico questions the listing of Ar ticle VI of GATT 1994 and Article 4.1 of the 
AD Agreement in subsection 1(a) of the panel request, a nd it questions the articles listed in subsections 1(f) and 
(g) of the panel request.  See Mexico’s Request, paras. 14-19. 
9 Specifically, Mexico does not question five of the seven articles listed in subsection 1(a), any of the 
articles listed in subsections 1(b)-(e), (h), or (i), or any portion of subsections 2 or 3. 
10 Id., paras. 17-18. WT/DS295/R 
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problem clearly – and the arguments  supporting those claims.  The clai ms must be set forth in the 
panel request.  The arguments need not be.
11 
 18. Mexico’s challenge to the US claim th at the injury and causation analyses breached 
Article 4.1 of the AD Agreement suffers from a similar flaw.
12  Mexico does not argue that the claim 
should have been more specific; the request cites clearly to the first paragraph of Article 4.  Mexico 
even concedes that the United States included a na rrative description that provided further information 
with respect to the claim.  It objects, however, th at it is unable to understand which of the statements 
in the narrative description results in a breach of Article 4.1.  Thus, its concern is with the US 
arguments , and not with the specificity of the claim itself. 
 
19. Turning next to Mexico’s objection to the US  claim under Article VI of GATT 1994, it is true 
that Article VI has several paragraphs.13  However, Mexico cannot argue that it was unable to 
understand which paragraphs were relevant to the matters in dis pute.  In the US panel request, the 
Article VI claim is accompanied by a lengthy narra tive description that provid es more than sufficient 
detail about the nature of the US claims and demonstrat es that the majority of Article VI is simply not 
relevant.  The plain facts underlie this conclusi on.  For example, the narrative description does not 
address the imposition of countervailing duties (which  is the topic of paragraphs 3 and 5 of 
Article VI), because there is no Mexican countervailing duty measure on US rice.  Similarly, the description does not mention either of the scenarios that are the subject of paragraphs 4 or 7 of 
Article VI, because the anti-dumping measure does not  involve either issue.  Rather, the narrative 
focuses on issues that are addressed by the only paragra phs of Article VI that are relevant to this 
dispute: paragraphs 2 and 6(a).  As such, through the narrative description in the US panel request, the 
United States provided Mexico a brief summary of th e legal basis of the complaint with respect to 
Article VI that is sufficient to present the problem clearly.  
20. Furthermore, it is worth noting th at in Mexico’s panel request in United States –  
Anti-Dumping Measures On Oil Coun try Tubular Goods From Mexico , Mexico includes a claim 
under Article VI of GATT 1994, but fails to specify which paragraphs of Article VI are relevant.
14  
Thus, it is apparent that Mexico itself believes a c itation to Article VI as a whole is not inconsistent 
with Article 6.2 of the DSU.  
21. In sum, Mexico has not presented any reasons  why subsections 1(a), (f), and (g) of the US 
panel request should be found inconsistent with  the requirements of Article 6.2 of the DSU. 
 
V. THE US PANEL REQUEST DOES NOT PR EJUDICE THE ABILITY OF MEXICO 
TO DEFEND ITSELF 
22. Even if Mexico had succeeded in demonstra ting that the US panel request does not meet the 
requirements of DSU Article 6.2, which it has not, Mexico has offered nothing to suggest that it has been prejudiced. 23. In Korea Dairy , the Appellate Body denied Korea’s clai m that the panel request had failed to 
provide a brief summary of the legal basis of the co mplaint sufficient to present the problem clearly, 
                                                     
 
11 See, e.g. , EC Bananas AB , para. 141; Appellate Body Report on Thailand – Anti-Dumping Duties on 
Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, adopted 
5 April 2001, at para. 88, n.36 (noting that there is a “significant difference between the claims  identified in the 
request for the establishment of a panel, which esta blish the panel’s terms of reference . . . and the arguments 
supporting those claims,” and that the arguments are clar ified in the first written submission and in subsequent 
documents.)  While Mexico cited paragraph 88 of the Thai Steel AB  report, it omitted reference to footnote 36, 
which is appended to that paragraph.  See Mexico’s Request, para. 11. 
12 Id., paras. 15-16. 
13 Mexico’s Request, para. 14. 
14 See United States – Anti-Dumping Measures On Oil Country Tubular Goods From Mexico, Request 
for the Establishment of a Panel by Mexico , WT/DS282/2, circulated 29 July 2003.  WT/DS295/R 
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for the following reason:  although Korea had asser ted prejudice, it offered no supporting particulars 
and failed to demonstrate that the panel request had prejudiced its ability to defend itself during the 
panel proceedings.15  Mexico categorically asserts that it is prejudiced by the US panel request, but 
only in the vaguest and most conclusory manner.  
24. Mexico’s only explanation of how it has been  prejudiced is its assertion that the alleged 
deficiencies in the panel request are im peding its ability to prepare a defence.
16  It has failed 
completely, however, to provide any supporting par ticulars as to why this is so.  Moreover, its 
assertion is contradicted by the facts, since Mexico’s first written submission contains a lengthy response to each of the challenged US claims.
17 
 
25. In light of the Appellate Body’s reasoning in Korea Dairy , Mexico’s mere assertion of 
prejudice is plainly insufficient to establish prejudi ce.  As was the case for Korea in that dispute, 
Mexico has “offered no supporting particulars” and h as “failed to demonstrat e” that its ability to 
defend itself in the panel pro ceedings has been prejudiced. 
 
VI. MEXICO’S ASSERTION THAT THE US PANEL REQUEST DOES NOT IDENTIFY 
ARTICLE 366 OF THE FEDERAL CODE OF CIVIL PROCEDURE AS A “SPECIFIC MEASURE AT ISSUE” IS INCORRECT 
26. Mexico’s second objection to the US panel re quest under Article 6.2 of the DSU is that the 
request allegedly failed to identify Article 366 of th e FCCP as a “specific measu re at issue”.  Mexico 
first made this assertion at the DSB meeting where the United States first requested the formation of a 
panel in this dispute.  As the United States explai ned at that time, and as it further explained at the 
DSB meeting that established the panel, Mexico’s assertion is groundless.  27. Section 3 of the US panel request states the following: 
 
Mexican officials have asserted that Article 366 of Mexico’s Federal Code of Civil 
Procedure and Articles 68 and 97 of the Foreign Trade Act  prevent Mexico from 
conducting reviews of anti-dumping or count ervailing duty orders while a judicial 
review of the order is ongoing, including a “binational panel” review pursuant to 
Chapter Nineteen of the North American Free Trade Agreement .  These provisions 
appear to be inconsistent with Articles 9. 3, 9.5, and 11.2 of the AD Agreement, and 
Articles 19.3 and 21.2 of the SCM Agreement.
18 
                                                      
15 Korea – Dairy , para 131. 
16 Mexico’s Request, para. 38.  Mexico’s only other assertion of prejudice relates to the date on which 
it received an English-language translatio n of the US first written submission.  Mexico’s Request, para. 5.  It is 
not clear to the United States how the date that Mexi co received the first written submission is relevant to 
determining whether Mexico was prejudiced by the panel request.  The United States notes, however, that 
Mexico received five weeks to prepare its first writte n submission – which is two weeks longer than the 
maximum period proposed in Appendix 3 of the DSU.  In addition, if any Party has been prejudiced by the 
"translation" issue, it is the United States, which has had to prepare and file this response to Mexico's Request 
before  receiving the English-language translation.  Althou gh we have done our best  to respond to Mexico's 
complaints in a comprehensive manner, we may need to supplement our response after we receive the English 
translation. 
17 In United States – Lamb Meat , the Panel found that the United States had not provided adequate 
“supporting particulars” in support of its claim of prejudice.   It based its finding in part on the fact that the US 
first written submission contained a detailed rebuttal to the challenged claims.  See Panel Report on 
United States – Safeguard Measures on Imports of Fres h, Chilled or Frozen Lamb Meat from New Zealand and 
Australia , WT/DS177/R, WT/DS178/R, adopted 16 May 2001, para. 5.51. 
18 US Panel Request, Section (3). WT/DS295/R 
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28. Mexico focuses solely on the first sentence,  which refers to the assertions made by the 
Mexican officials.  It ignores completely, however, th e second sentence, which pl ainly states that it is 
the “provisions” themselves – including Article 366 of the FCCP – that the United States is challenging, and not the assertions of the Mexican offi cials.  While it is barely credible that Mexico 
would take from the first sentence the understanding that the United States was challenging assertions 
rather than the provision, when the paragraph is viewed  in its entirety, it is plain that Mexico’s claims 
are groundless.
19 
 29. Furthermore, the US representative specifically  addressed this issue at the DSB meeting that 
established this Panel, after Mexico claimed not to understand which measure the United States was 
challenging: 
 
The United States wished to address briefly two erroneous statements that Mexico had made during [the first DSB meeting that considered the US panel request].  First, 
Mexico had mistakenly asserted that the United States had abandoned its claim 
addressing Article 366 of Mexico’s Federal C ode of Civil Procedure.  In actuality, 
this claim appeared in section 3 of the panel request.  Second, Mexico had asserted 
that the United States was claiming that certa in statements of Mexican officials were 
“measures”.  As the request itself made clear, the United States was making no such claim.  Rather, it had cited statements of Mexican officials with respect to certain 
provisions that are measures – namely, Article 366 of the Federal Code of Civil 
Procedure, and Articles 68 and 97 of the Foreign Trade Act.
20 
30. Accordingly, there is no doubt that Article 366 is a “specific measure at issue”.  Moreover, 
there is no need for the Panel to address Mexico’s arguments that statements of Mexican officials 
cannot be considered “measures”.21  The United States has made no ar guments to the contrary.  It is 
Article 366 – and not statements about Artic le 366 – that is the measure at issue. 
 
31. For the foregoing reasons, there are no grounds for Mexico’s assertion that the United States 
failed to identify Article 366 of the FCCP as a “sp ecific measure at issue” in this dispute, and 
therefore no grounds to conclude that the US pa nel request does not meet the requirements of DSU 
Article 6.2 with respect to this measure.  VII. MEXICO’S CHALLENGES TO THE ADEQUACY OF CONSULTATIONS LACK 
MERIT 
32. Mexico’s final challenge to the US panel request  pertains to the adequacy of the consultations 
with respect to the claims at i ssue.  Mexico argues that a Member  cannot include a legal claim in a 
panel request unless that claim was discussed during consultations.
22  It also complains about the 
                                                      
19 The notion that the United States would be challengi ng the statements of th e Mexican officials about 
Article 366, rather than Article 366 itself, is even more  difficult to credit given discussions on this topic at 
consultations.  The United States provided Mexico with a list of questions during consultations that specifically 
addressed Article 366.  As an introduction to the questions, the United States noted, as it did in the US panel 
request, that Mexican officials had claimed in meetings with US officials that Article 366 of the FCCP 
precluded Mexico from conducting reviews while judicial  review proceedings were ongoing.  The seven 
questions that followed, however, were addressed to Artic le 366 itself, and not to the assertions of the Mexican 
officials.  Thus, it was abundantly clear to Mexico that the measure in question was Article 366, and not the 
statements by the Mexican officials about  Article 366. 
20 Minutes of Meeting, Held in the Centre William Rappard on 2 October 2003 , WT/DSB/M/156, 
10 November 2003, para. 45. 
21 Mexico’s Request, paras. 22-26. 
22 Mexico’s Request, paras. 33-34.  WT/DS295/R 
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adequacy of the consultations with respect to Mexi co’s evaluation of the injury factors in the rice 
investigation.23  Neither objection has merit. 
 33. First
, there is no basis for Mexico’s contention th at a Member cannot include a claim in its 
panel request unless the claim was discussed duri ng consultations.  A consultation request must 
provide an “identification of the measures at is sue and an indication of the legal basis for the 
complaint”.24  However, nothing in the DSU requires that a Member must have ascertained all of the 
possible legal claims and relevant pr ovisions of the WTO agreements before  the Member can even 
request consultations.  One of the purposes of consu ltations is to foster a better understanding of the 
relevant measures and concerns of the various Memb ers in order to promote a satisfactory adjustment 
of the matter.  Consultations are often the firs t time that the Member maintaining the measure 
provides a detailed description of the measure and re levant facts and legal documents.  Consultations 
are not a “dress rehearsal” or “moot court” for the panel process requiring Members to have worked out all of their claims and positions in advance a nd presenting them in the consultations for the other 
side to practice its prepared responses. 
 
34. The DSU reflects the difference between request s for panels and requests for consultations by 
using different terms for each.  With respect to panels, the DSU requires that a request for the 
establishment of a panel provide a “brief summary of  the legal basis of the complaint sufficient to 
present the problem clearly”.
25  However, with respect to consu ltations, the DSU merely requires that 
requests for consultations give “an indicati on” of the legal basis for the complaint.26  Moreover, 
previous panels have rejected the approach that Me xico is urging here – for example, the panel in 
Japan – Agricultural Products rejected Japan’s argument that the US panel request could not include 
a claim under Article 7 of the Agreement on the Application of  Sanitary and Phytosanitary Measures  
if the claim was not included in the consultati on request and no consultations were held on it.27 
 
35. Second , Mexico’s complaint about the alleged inadeq uacy of the consultations with respect to 
Mexico’s evaluation of the injury factors is equally without merit.  Contrary to Mexico’s assertion, the consultations did address Mexico’s evaluation of the in jury factors in the rice investigation.  More 
fundamentally, precisely to avoid litigation over what the parties did or did not say during 
consultations, the DSU only requires that the consu ltation request identify the measure that is the 
subject of the consultations; there is no requir ement as to the adequacy of the consultations 
themselves.  As the panel noted in Korea – Taxes on Alcoholic Beverages : 
 
The only requirement under the DSU is that c onsultations were in fact held, or were 
at least requested, and that a period of  sixty days has elapsed from the time 
consultations were requested to the time a request for a panel was made.  What takes 
place in those consultations is not the concern of a panel.
28 
36. In addition, the panel in Bananas III specifically rejected the contention that consultations 
must lead to an adequate explanation of the complainants’ case:  
                                                     
 
23 Id., para. 35. 
24 DSU Art. 4.4. 
25 Id., Art. 6.2. 
26 Id., Art. 4.4. 
27 Panel Report on Japan – Measures Affecting Agricultural Products , WT/DS76/R, adopted 
19 March 1999, para. 8.4(i). 
28 Panel Report on Korea – Taxes on Alcoholic Beverages , WT/DS75/R, WT/DS84/R, adopted 
17 February 1999, para. 10.19 ( citing  Panel Report on European Communities – Regime for the Importation, 
Sale and Distribution of Bananas, Complaint by the United States , WT/DS27/R/USA, adopted 
25 September 1997, para. 7.19 (“ Bananas III ”)). WT/DS295/R 
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As to the EC argument that consultations must  lead to an adequate explanation of the 
Complainants’ case, we cannot agree.  Consu ltations are the first step in the dispute 
settlement process.  While one function of th e consultations may be to clarify what 
the case is about, there is nothing in the DS U that provides that a complainant cannot 
request a panel unless its case is adequately  explained in the consultations.  The 
fulfilment of such a requirement would be difficult, if not impossible, for a 
complainant to demonstrate if a respondent chose to claim a lack of understanding of 
the case, a result which would undermine the automatic nature of panel establishment 
under the DSU.  The only prerequisite for re questing a panel is that the consultations 
have “fail[ed] to settle a dispute within 60 days of receipt of the request for 
consultations ...”.  Ultimately , the function of providing notice to a respondent of a 
complainant's claims and arguments is ser ved by the request for establishment of a 
panel and by the complainant’s submissions to that panel.
29 
37. In the present case, the United States and Mexico spent two full days in Mexico City 
consulting at length on each of the specific measures at issue in this dispute.  In addition, more than 
sixty days elapsed from the time the United States re quested consultations to the time the request for 
the panel was made.30  Therefore, there is no basis for Mexico’s assertion that the United States has 
acted inconsistently with Articles 4.5 and 4.7 of  the DSU with respect to consultations over the 
disputed measures.  38. Finally, Mexico also claims that the US pa nel request is inconsiste nt with Articles 17.4 and 
17.5 of the AD Agreement.  Neither claim has merit.  First
, to the extent that Article 17.4 creates any 
obligation with respect to consultations, it is that the requesting Member “consider” that the 
consultations have failed to achieve a mutually agr eed solution.  The United States so considered in 
this dispute.  In the view of the United States, th e consultations in this case have, in fact, failed to 
achieve a mutually satisfactory solution.  Therefore, Mexico’s Article 17.4 claim is groundless. 
 
39. Second , Mexico’s claim under Article 17.5 of the AD Agreement must fail because 
Article 17.5 imposes no obligation on the complaining party; rather, it establishes that the DSB shall, 
upon the request of the complaining party, establish a panel to examine the matter based on the panel 
request and the facts made availa ble in conformity with appropria te domestic procedures to the 
authorities of the importing Member. 
 
VIII.  CONCLUSION 
40. For the reasons stated above, Mexico’s argum ents in support of its request for a preliminary 
ruling that the US panel request does not meet the requirements of Articles 4.5, 4.7, and 6.2 of the DSU or Articles 17.4 or 17.5 of the AD Agreement ar e without merit.  Accordingly, the Panel should 
reject that request. 
_______________ 
 
 
                                                     
 
29 Bananas III , para. 7.20 (footnote omitted). 
30 Compare  US Consultation Request (demonstrating that the United States requested consultations on 
16 June 2003) to US Panel Request (demonstrating that the United States requested the Panel on 
19 September 2003).