. /.  WORLD TRADE  
ORGANIZATION  WT/DS308/10 
6 December 2005 
 (05-5832) 
 Original:   Spanish 
  
 
MEXICO – TAX MEASURES ON SOFT DRINKS AND  
OTHER BEVERAGES 
 
Notification of an Appeal by Mexico u nder Article 16.4 and Article 17 of the 
 
Understanding on Rules and Procedur es Governing the Settlement of  
Disputes (DSU) and Rule 20(1) of the Working  
Procedures for Appellate Review  
 
  The following notification dated 6 December 2005, from the delegation of Mexico, is being 
circulated to Members. 
_______________ 
 
  Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , 
Mexico hereby notifies its decision to appeal to the Appellate Body certain issues of law dealt with in 
the Report of the Panel on Mexico – Tax Measures on Soft Drinks and Other Beverages  
(WT/DS308/R) (the "Panel Report") and certain legal interpretations developed by the Panel in this 
dispute.  
1. Mexico seeks review by the Appellate Body of  the Panel's legal conclusion that it has no 
discretion to decline to exercise jurisdiction in this  case and its determination that, even if it had such 
discretion, the facts in the record do not justify a re fusal by the Panel to exercise jurisdiction in this 
case.  This conclusion is in error and is based on erroneous findings on issues of law and related legal 
interpretations concerning Articles 3, 7, 11 and 19 of the DSU and Articles XXII and XXIII of the 
GATT 1994.  These errors are contained, inter alia , in paragraphs 7.1 to 7.18, 8.215 to 8.230 and 9.1 
of the Panel Report. 
2. Mexico seeks review by the Appellate Body of the Panel's legal conclusion that the 
challenged tax measures are not justified under Article XX of the GATT 1994 as measures necessary 
to secure United States compliance with laws or regulations which are not inconsistent with the 
provisions of the GATT 1994.  This conclusion is in error and is based on erroneous findings on 
issues of law and related legal interpretations c oncerning Article XX of the GATT 1994.  Paragraphs 
8.168 to 8.204 and 9.3 of the Panel Report, among others, contain such errors, including the 
following: 
(a) The Panel's interpretation and application of the expression "to secure compliance" in 
Article XX(d) of the GATT 1994 and its conclusion that it does not apply to measures 
taken by a Member in order to induce another Member to comply with obligations 
owed to it under a non-WTO treaty.
1 
                                                      
1 Panel Report, paragraphs 8.170 to 8.181. WT/DS308/10 
Page 2  
 
(b) The Panel's conclusion that the challenged tax measures "are not designed to secure 
compliance" within the meaning of Article XX(d) of the GATT 1994 and are not eligible for consideration unde r Article XX(d) of the GATT 1994.
2 
(c) The Panel's interpretation and applica tion of the phrase "laws or regulations" 
contained in Article XX(d) of the GATT 1994 and its conclusion that this phrase does 
not cover international treaties such as NAFTA.3 
(d) The Panel's failure to consider whether the Mexican measures are "necessary" to 
secure compliance with a law that is not inconsistent with the provisions of the 
GATT 1994.4 
3. Mexico seeks review by the Appellate Body, in the light of DSU Article 11, of the Panel's 
conclusion that "Mexico has not established that its  measures contribute to securing compliance in the 
circumstances of this case".5  This conclusion does not reflect an objective approach to analysis of the 
available evidence on the effects of the Mexican m easures, and is inconsistent with the treatment 
given by the Panel to relevant evidence.  Accordingl y, this conclusion is inc onsistent with the Panel's 
duty to make an objective assessment of the matter before it. 
4. Mexico considers that the Panel also failed to  make an objective assessment of the matter 
before it, including the facts of the case, inconsis tently with its obligatio n under Article 11 of the 
DSU, with respect to Mexico's request for determin ations of fact, status and relevance of the NAFTA 
dispute between the parties.6 
5. Mexico also considers that, in concluding th at international countermeasures cannot qualify 
for consideration as measures designed to "secure co mpliance" within the meaning of Article XX(d) 
of the GATT 19947, the Panel improperly increased the obligations of WTO Members and reduced 
the rights of Members under the covered agreements. 
6. In the event that the Appellate Body rever ses the Panel's conclusion that Mexico's tax 
measures are not justified under Article XX(d) of the GATT 1994, Mexico requests that the Appellate 
Body complete the legal analysis under Article XX of the GATT 1994. 
 Those provisions of the covered agreements which Mexico considers the Panel to have 
interpreted or applied erroneously include Articles XX, XXII and XXIII of the GATT 1994 and 
Articles 3, 7, 11 and 19 of the DSU.  
__________ 
 
                                                     
 
2 Panel Report, paragraphs 8.182 to 8.190 and 8.197 to 8.198. 
3 Panel Report, paragraphs 8.191 to 8.197. 
4 Panel Report, paragraphs 8.199 to 8.202. 
5 Panel Report, paragraph 8.186. 
6 Panel Report, paragraphs 8.231 and 8.232. 
7 Panel Report, paragraphs 8.181 and 8.186.