WT/DS207/RW 
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  ANNEX D 
 
ORAL STATEMENTS OF THE PARTIES AT THE 
SUBSTANTIVE MEETING OF THE PANEL 
 
Contents Page 
Annex D-1  Opening Statement by Argentina (1 August 2006) D-2  
Annex D-2 Closing Statement by Argentina (2 August 2006) D-26 
Annex D-3 Opening Statement by Chile (1August 2006) D-30 
Annex D-4 Closing Statement by Chile (2 August 2006) D-41 
 WT/DS207/RW 
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  ANNEX D-1 
 
OPENING STATEMENT BY ARGENTINA  
(1 AUGUST 2006) 
  
TABLE OF CONTENTS 
 
I.
 INTRODUCTION ................................................................................................................D-3  
II. THE AMENDED PBS IS INCONSISTENT WITH ARTICLE 4.2 OF THE 
AGREEMENT ON AGRICULTURE ................................................................................D-5  
1. The amended PBS is inconsistent with Article 4.2 of the Agreement on 
Agriculture because it is not an ordinary customs duty....................................................D-5  
2. The amended PBS causes insulation from the international market ...............................D-6  
3. The amended PBS is neither tran sparent nor predictable..............................................D-14  
4. The amended PBS is similar to a variab le import levy and a minimum import 
price.......................................................................................................................... ............D-16  
5. The amended PBS does not result in any improvement of access conditions to the 
Chilean market................................................................................................................. ...D-18  
III. ARGENTINA'S ARGUMENTS IN RELATION TO THE FACTOR OF 1,56 
APPLICABLE TO WHEAT FLOUR ARE WITHIN THE TERMS OF 
REFERENCE OF THIS PANEL ......................................................................................D-19  
IV. THE AMENDED PBS IS INCONSISTENT WITH THE SECOND SENTENCE 
OF ARTICLE II.1(B) OF THE GATT 1994 AND ARGENTINA'S CLAIM IN 
RELATION TO THAT PROVISION IS WITHIN THE TERMS OF 
REFERENCE OF THIS PANEL ......................................................................................D-21  
V. CONCLUSIONS .................................................................................................................D-2 3 
  WT/DS207/RW 
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  I. INTRODUCTION 
Mr. Chairman, Members of the Panel: 
1. Argentina appreciates the opportunity to submit to your consideration its arguments in the 
light of the First Written Submission by Chile and its Rebuttal. 
2. This dispute has a very straightforward solu tion: a finding that the amended PBS cannot be 
maintained because it is not an ordinary customs duty.  
3. A plain reading of the legislation enforcing the amended PBS shows that this measure is not 
expressed in the form  of " ad valorem  or specific rates". To the contrary, the amended PBS is a 
complex mechanism that, as a border measure, has no r esemblance with an ordinary customs duty. By 
not being an ordinary customs duty, the amended PBS violates Article 4.2 of the Agreement on 
Agriculture .  
4. Furthermore, by being "other duties or charg es" not recorded in the corresponding column of 
Chile's Schedule of Concessions (No. VII), th e amended PBS violates the second sentence of 
Article II:(1)(b) of the GATT 1994. 
5. Finally, by maintaining a prohibited measure in force, Chile is not ensuring the conformity of 
its laws, regulations and admini strative procedures with its oblig ations under the WTO Agreements, 
in violation of Article XVI:4 of the Marrakesh Agreement Establishing the World Trade 
Organization . 
6. Chile was found in breach of its WTO obligati ons. The Appellate Body found that Chile's 
PBS was a border measure similar to a variable  import levy and a minimum import price, and 
therefore was inconsistent with Article 4.2 of the Agreement on Agriculture. Thus, Chile's PBS was 
not an ordinary customs duty and could not be maintained.  
7. Chile did not comply. It has "cosmetically" amended the old PBS while maintaining its 
distortive effects and fully preserving its lack  of transparency and predictability.  
8. Furthermore, Chile has tried to convince this Pa nel that its obligations to comply were very 
narrow in scope arguing that "… in analysing the 'm easures taken to comply' an Article 21.5 Panel … 
must necessarily  study the scope of the recommendations and rulings of the DSB".1 This is incorrect. 
A proceeding under Article 21.5 of DSU is not only about the compliance with the recommendations and rulings of the DSB but also about the consistenc y of the measure taken to comply with a covered 
agreement.
2  
9. Finally, Chile agreed with Argentina's positi on: in addition to DSB's recommendations and 
rulings, Chile had to comply with the covered agreements3, particularly in this case, the Agreement on 
Agriculture , the GATT 1994 and the WTO Agreement. However, Chile did not bring this 
understanding into practice: Chile not only has evaded DSB's recommendations and rulings but also has violated those agreements in further new ways. 
10. In another attempt to disregard its WTO obligations, Chile has misinterpreted DSB's 
recommendations and rulings when stating that there were only "specific aspects" of the PBS that it 
                                                     
 
1 Rebuttal by Chile, para. 16. 
2 EC – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India , Recourse to Article 21.5 
of the DSU by India, Report of the Appellate Body (WT/DS141/AB/RW), para. 79. 
3 Rebuttal by Chile, para. 12. WT/DS207/RW 
Page D-4  
 
  should have brought into conformity.
4 Chile has had a big trouble with  Argentina's claim that the 
amended PBS is inconsistent as a whole.5 Not surprisingly, Chile's stra tegy has been to deviate the 
attention and to focus the discussion on a few specific features of Chile's PBS amendments.  
11. Chile argues that Argentina, by  identifying the amended PBS spec ific inconsistent features, 
goes against its own position.6 That argument has shown to be untenable. Any Member alleging the 
incompatibility of any other Member's measure, necessarily has to identify specific aspects of that 
measure that turn it inconsistent with WTO oblig ations. That was the reasoning the Appellate Body 
developed in order to reach its conclusions.7 Indeed, that is also what Argentina has done during these 
proceedings: based on specific features which are the core of the amended PBS, a conclusion was 
reached regarding the amended PBS in general.  
12. Regarding its response to Argentina's claims in these proceedings, Ch ile has not countered 
many of Argentina's arguments. Ch ile erroneously believes that it is not Chile's obligation to refute all 
and each of Argentina's claims.8 Nevertheless, Chile's defense is not properly substa ntiated if it does 
not respond each of Argentina's arguments. The Appellate Body stated that the burden of proof is shifted to the defending party once the claimant has established a prima facie case of inconsistency 
with a particular provision, which must in turn  counter or refute the claimed inconsistency.
9 
13. Chile cannot simply maintain that its "… objec tions … to Argentina's claims and arguments 
are clarified from the reading of [its] arguments".10 Thus, Chile wants the Panel to find that it has 
refuted all of Argentina's arguments from the simple  reading of a few arguments that Chile considers 
"relevant". Chile's position is baseless, and impairs the possibility to exactly identify which arguments 
have been responded, how they have been responded, what proofs have been provided for or if those 
arguments have effectively been responded. 
14. This is how Chile purports to convince this Panel it has complied: by misinterpreting the 
recommendations and rulings of the DSB and by narrowing its obligations under the covered 
agreements, Chile has "cosmetically " amended its PBS, fully preservi ng its distortive effects, and has 
avoided to substantially address each  of Argentina's claims. This Pa nel should not be misled by 
Chile's attempt and should find that the amended PB S is inconsistent which Chile's obligations under 
the WTO. 
                                                      
4 First Written Submission by Chile, para. 88. 
5 Rebuttal by Chile, paras. 15 and 19 to 28. 
6 Rebuttal by Chile, para. 22.  The features identified by Argentina are the ones that rendered the "old" 
PBS intransparent and unpredictable. Argentina was answ ering Chile's argument that only a few minor features 
of the PBS were inconsistent due to lack of transparen cy and predictability (see Rebuttal by Argentina, para. 110 
and ss.). 
7 Chile – Price Band System, Report of the Appellate Body, para. 261: "… we reach our conclusion on 
the basis  of the particular configur ation and interaction of all these specifi c features of Chile's price band system 
…" (underlining added). 
8 Rebuttal by Chile, paras. 2 and 3. 
9 In US – Wool Shirts and Blouses  (WT/DS33/AB/R, WT/DS33/AB/R/Corr.1, page 16) the Appellate 
Body stated: "… [I]t is a generally-accep ted canon of evidence … that the burd en of proof rests upon the party, 
whether complaining or defending, who asserts the affirmative of a particular claim or defense .  If that party 
adduces evidence sufficient to raise a pr esumption that what is claimed is true, the burden then shifts to the other 
party, who will fail unless it adduces sufficient  evidence to rebut the presumption ". (Emphasis added; footnote 
omitted). This principle was recalled by the Appellate Body in EC – Hormones (WT/DS26/AB/R, 
WT/DS48/AB/R, para. 98), Japan – Apples  (WT/DS245/AB/R, para. 154) and EC – Tariff Preferences 
(WT/DS246/AB/R, para. 104). 
10 Rebuttal by Chile, para. 2.  WT/DS207/RW 
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  II. THE AMENDED PBS IS INCONSISTENT WITH ARTICLE 4.2 OF THE 
AGREEMENT ON AGRICULTURE  
1. The amended PBS is inconsistent with Article 4.2 of the Agreement on Agriculture 
because it is not an ordinary customs duty 
15. As stated before, this Panel coul d bring an end to this dispute by providing the parties with a 
very straightforward finding: the amended PBS cannot  be maintained because it is not an ordinary 
customs duty . 
16. Article 4.2 of the Agreement on Agriculture is not an ordinary provision. By requiring 
Members not to maintain measures other than ordi nary customs duties, it is –by its own nature- a 
fundamental provision of the trading system . Article 4.2 reads in its relevant part: 
"Members shall not maintain, resort to or revert to measures of the kind which have 
been required to be converted into ordinary customs duties…"  
17. The original Panel in these proceedings stated th at "Article 4.2 is central to the establishment 
and protection of a fair and market-oriented agri cultural trading system in the area of market 
access…Article 4.2 of the Agreement on Agriculture , by prohibiting Members from maintaining, 
resorting to, or reverting to any measures of the ki nd which have been required to be converted into 
ordinary customs duties, accordingly provides the legal underpinning for what, in ordinary parlance, is referred to as a "tariff-only" regime for trade in agriculture".
11 
18. In addition, the Appellate Body established th at the object and purpose of Article 4 is to 
achieve improved market access conditions for im ports of agricultural products by permitting only the 
application of ordinary customs duties.12 
19. Chile's PBS is not an ordinary customs duty.  This is clear from what the Appellate Body 
established in this dispute. When interpreting th e term "Ordinary Customs Duties" as used in 
Article 4.2 of the Agreement on Agriculture ", the Appellate Body established that "…all that is 
required is that 'ordinary customs duti es' be expressed in the form of ' ad valorem  or specific rates '".13  
20. A plain reading of Law 19.897 and Decree 831/200314, the legislation enforcing the amended 
PBS, shows that this measure is not expressed in the form  of "ad valorem  or specific rates". There is 
no ad valorem or specific rate expressed in those measures. To the contrary, the amended PBS is a 
complex mechanism that, as a border measure, has no resemblance with an ordinary customs duty.  
21. As its own name implies, the amended PBS is a system  consisting inter alia , of ceiling and 
floor prices, reference prices, a formula, a fixed coeffi cient of 0,985, a factor of 1,56, relevant periods 
for the determination of the reference prices and others for the establishment of the duties, some 
predetermined relevant markets a nd some predetermined qualities of concern. There is no similarity 
between this system  and an ad valorem or specific duty rate or, in other words, an ordinary customs 
duty. In this sense, it is clear that the amended PBS is considerably less amenable to negotiated 
                                                      
11 Chile – Price Band System,  Report of the Panel, para. 7.15. 
12 Chile – Price Band System,  Report of the Appellate Body, para. 234. 
13 Chile – Price Band System,  Report of the Appellate Body, para. 277 (underlining added). The 
Appellate Body found contextual support for interpreting the term "ordinary customs duties" in Annex 5 to the 
Agreement on Agriculture, establishing  that "Annex 5, read together with the Attachment to Annex 5 … 
contemplates the calculation of 'tariff equivalents' in  a way that would result in ordinary customs duties 
'expressed as ad valorem or specific rates'". 
14 See ARG-1 and ARG-2 WT/DS207/RW 
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  reduction that an ordinary customs duty, contra ry to the object and purpose of the Agreement on 
Agriculture.
15 
22. The possibility of the resulting  duties taking the form of ad valorem or specific duties is 
meaningless regarding of whether the underlying measure  is consistent. In this respect, the Appellate 
Body established that "…the fact that the duties th at result from the application of Chile's PBS take 
the same form as "ordinary customs duties" does not  imply that the underlying measure is consistent 
with Article 4.2 of the Agreement on Agriculture ".16 This is a very important distinction that Chile has 
constantly tried to obscure, deviating the discussion to  an analysis of the consistency of the amended 
PBS resulting  duties.17 However, contrary to what Chile asserts, the duties that result from the 
application of Chile's amended PBS are not the object  of these proceedings. The object of this dispute 
is the underlying measure, the PBS by itself.  
23. The amended PBS did not turn the system into an ordinary customs duty and continues to be a 
measure of the kind which was required to be convert ed into an ordinary customs duty, and could not 
be maintained in conformity with  Article 4.2 and footnote 1 of the Agreement on Agriculture . 
2. The amended PBS causes insulation from the international market 
24. In addition to not being an ordinary customs duty because it is not expressed in the form of an 
ad valorem or specific rates, the PBS -regardless the "cos metic" changes made-, continues to insulate 
Chile's market from fluctuations in international prices in a way that is inconsistent with Article 4.2 of 
the Agreement on Agriculture .  
25. In particular, like the original PBS, the amende d PBS continues to elevate the entry price of 
imports to Chile above the price band floor; continu es to "overcompensate" for the effect of decreases 
in international prices on the domestic market wh en reference prices are set below the price band 
floor; continues to make the entry price of Chilean  imports higher than if Chile applied a minimum 
import price at the level of the price band floor, and c ontinues to fail to ensure that the entry price of 
imports to Chile falls in tandem with falling world market prices.  
26. Furthermore, the disconnection produced by th e amended PBS stems from the existence of 
floor and ceiling values determined once for the entire period from 16 December 2003 to 
15 December 2014, and established from 2007 on the basis of fixed coefficients; reference prices 
staying unchanged for two months, established on the basis of only two qualities of concern and of 
daily prices recorded on only two predetermined mark ets; a multiplier consisting of 1 plus the general 
ad valorem duty added to the formula used to calculate th e duty levels; a factor of 1,56 applied to the 
duties and rebates determined for wheat in order to  calculate the duties and rebates applicable to 
wheat flour; and from a complete absence of any rela tion to the transaction value of the shipments.  
27. Each argument has been based on analytical, mathematical and/or empirical evidence.  
28. Chile's response to Argentina's arguments has been confusing and contradictory.  
29. First , Chile has offered the surprising argument that  the Appellate Body did not request that 
the reference price and the floor and ceiling of the PBS be established in connection with international 
prices18, when that is exactly what the Appellate Body meant.19  
                                                      
15 See Chile – Price Band System,  Report of the Panel Report, footnote 638. 
16 Chile – Price Band System,  Report of the Appellate Body, para. 279. 
17 See, for example, Rebuttal by Chile, para. 137. 
18 Rebuttal by Chile, para. 61.  WT/DS207/RW 
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  30. Second , the only "evidence" Chile submitted in re buttal to Argentina's arguments is an 
unsupported graph.20 Argentina pointed out a whole set of inc onsistencies and contradictions in that 
graph which, in turn, supporte d Argentina's argument that the amended PBS causes insulation from 
the international market.21 After that Chile exposed a perplexing set of contradictions.22 
31. In the end , Chile's explicit conclusion is that, in spite of the Appellate Body findings and 
Chile's previous statements, there is no connection between the wheat FOB price, the entry price and 
the internal market.23 This is the basis for Chile's argument that the PBS does not have the effect of 
disconnecting Chile's market from international pri ce developments. Chile's arguments are untenable. 
Argentina has demonstrated that the amended PB S causes insulation from the international market. 
32. Additionally, Argentina has demonstrated how each of the Appellate Body findings in the 
original proceedings appl y to the amended PBS. 
33. First, Argentina has shown mathematically and empirically -both for wheat and wheat flour- 
how specific duties resulting from the amended PBS tend to elevate the entry price of imports to Chile 
above the price band floor.24 That is to say, when specific du ties are applied the entry price is always  
above US$128 per tonne, as Chile has confirmed.25  
34. Second, Argentina has also shown that the amende d PBS tends to "overcompensate" for the 
effect of decreases in international prices on the do mestic market when the reference prices are set 
below the price band floor. 
35. Chile's position regarding overcom pensation is self-contradictor y. First Chile argues that it 
does not exist.26 Afterwards Chile affirms that what Arge ntina calls "overcompensation" can occur 
and, indeed, occurred.27 Chile misleadingly states that overc ompensation only occurred in two 
specific dates: from 15 to 16 December 2004 and from 15 to 16 February 2005. Afterwards 
"international prices will continue being reflected in the domestic prices".28 There are many problems 
with this reasoning.  
36. On the one hand, it must be clear at this stage that international prices are not  reflected in the 
domestic prices due to the amended PBS. As follows  from the PBS formula, for the modified PBS not 
to elevate  the entry price of imports to Chile above th e price band floor, an improbable condition must 
                                                                                                                                                                     
19 Chile – Price Band System,  Report of the Appellate Body, paras. 249 and 251. 
20 First Written Submission by Chile, para. 154. 
21 First Written Submission by Argentina, 61 to 72. 
22 In its First Written Submission, paras. 154 and 155,  Chile stated that the graph revealed that during 
the period of application, the wheat entry price  had the same behaviour as its FOB price and that both prices' 
variation had "large similarities" that showed the connec tion between Chile's internal price and the international 
market. In its Rebuttal, para. 55, after Argentina showed that Chile's arguments were baseless, Chile contradicts 
itself stating that, in reality, the graph was comparing wheat FOB price with wheat wholesale  price. Moreover, 
Chile curiously maintains that the connection required by Argentina cannot exist . According to Chile, the reason 
for this is that internal market wheat price is infl uenced by wheat internal supply. In sum, the evidence 
submitted by Chile to convince the Panel that the amended PBS does not cause insulation from the international 
market, not only supports Argentina's arguments, but also is full of self-contradictions. On top of that, when the 
relevant parameter of comparison is between the FOB price and the entry price,  as the Appellate Body 
established in paragraph 260 of its Report,  Chile incorporates a new variable never addressed by the Appellate 
Body nor by Argentina: the wholesale price . 
23 Rebuttal by Chile, para. 55 
24 First Written Submission by Ar gentina, Section C.I.2.1.. 
25 See Rebuttal by Argentina, paras. 164 to 169. 
26 Rebuttal by Chile, para. 46. 
27 Rebuttal by Chile, para. 49. 
28 Rebuttal by Chile, para. 51. WT/DS207/RW 
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  be satisfied: the reference price (calculated on a FOB basis) must be higher than the CIF price of an 
individual export transaction by more than US$7,2453 per tonne or, what amounts to the same thing, 
the CIF price of that transaction must be lower than the reference price by more than US$7,2453 per 
tonne. In other words, as far as the CIF price of an individual export transaction exceeds the reference 
price, or falls below that price by no more than US$7,2453 per tonne, the entry price of that 
transaction will be  above the band floor. 
37. Argentina is sure that at least two out of thr ee Members of this Panel remember the notion of 
the break even point  from the original proceeding. In that case, Argentina demonstrated how, after a 
break even point was reached, the duties resulting from  the PBS violated Chile's consolidated tariff 
binding, therefore infringing Article II of the GATT 1994. Chile has now established a new break 
even point: the point were the reference price exceeds the CIF price by US$7,2453 per tonne.  
38. Argentina showed how improbable r eaching that break even point is.
29 As far as that point is 
not reached, the modified PBS will mathematically el evate the entry price of imports to Chile above 
the price band floor. Chile explicitly recognized th at FOB prices are always lower than CIF prices.30 
As the reference price is calculated on a FOB basis, therefore the condition cannot  be fulfilled: the 
modified PBS will always tend to elevate the entry price of imports to Chile above the price band 
floor. 
39. Bearing this formula in mind, it is easy to see th at, even if international prices were reflected 
in the domestic prices after the initial overcompensat ion as Chile states, the amended PBS provides an 
end to any transmission when the entry price approaches the band floor. Due to the formula, the PBS 
will not allow any transmission of international pri ces in the case that the entry price falls below the 
floor price . Simply put: the formula, together with the band floor, work as a "brake" for the decline in 
the entry price and for any transmission of internatio nal prices below the level of the floor. If a decline 
in international prices cannot be reflected below the price band floor, then it is impossible to argue 
that the amended PBS reflects international prices.  
40. On the other hand, the initial overcompensation which, according to Chile, takes place at the 
beginning of the two-month period, inevitably taints th e rest of that period: the level of duties and the 
entry price after that moment will be affected by the original overcompensation. In fact, if overcompensation did not occur, the level of duti es and the entry price resulting from the two-month 
period would be lower. Thus, the effects of overcom pensation taint and affect the level of duties and 
entry price resulting from the PBS, which are higher than they would be if overcompensation simply 
did not exist.  
41. Moreover, the situation is not different with  what occurred in the original proceedings. 
According to the original PBS, the specific du ties were established for a period of one week.
31  
Assuming arguendo  that overcompensation only took place at the beginning of that period of one 
week, it nevertheless affected the level of duties and the entry price for the rest of that period. That 
was enough for the Appellate Body to find that the original PBS overcompensat ed for the decreases in 
international prices.32 The situation with the amended PBS is worse: while in the original PBS the 
effects of overcompensation tainted the level of duti es and the entry price for a week, now that period 
has been extended to two months . The fact is that Chile has not been able to rebut Argentina's 
                                                      
29 First Written Submission by Argentina, paras. 109-114. 
30 See Rebuttal by Argentina, paras. 164 to 169. 
31 Chile – Price Band System,  Report of the Appellate Body, paras. 21 to 29. 
32 Chile – Price Band System,  Report of the Appellate Body, para. 260  WT/DS207/RW 
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  arguments regarding the overcompensation produ ced by the amended PBS and recognized by Chile 
itself.33 
42. Chile's last bid to argue that the amended PBS could equate to an "ordinary customs duty" is 
its attempt to equate the overcompensation effect  with an alleged overcompensation produced by 
ad valorem duties or by seasonal duties. If what happens with ad valorem duties or with seasonal 
duties could be equated with the "overcompensati on" produced by the amended PBS, which it can 
not, it is certainly not a result of a pre-established mathematic formula inherent to those measures that 
guarantees that "overcompensation" will occur when international prices in relevant markets fall, as a 
consequence of a floor and a ceiling price, refe rence prices based on predetermined markets and 
qualities of concern, a factor of 1,56 and a coefficient of 0,985. 
43. Contrary to what Chile states, Argentin a does not focus its argumentation only in 
"overcompensation".34  The "overcompensation" is one additional  feature of the amended PBS that 
contributes to disconnect Chile's market from inte rnational price developm ents. As the Appellate 
Body stated when finding the old PBS inconsistent35, it is the configuration and interaction  of Chile's 
PBS features that insulate Chile's market from the transmission of international prices. 
Overcompensation then, is one of those features th at, together with many other features, renders 
Chile's amended PBS inconsiste nt with Article 4.2 of the Agriculture Agreement . 
44. Third, Argentina has also shown that, under the am ended PBS, the entry price for wheat and 
wheat flour imports is higher than it would be if Ch ile were to apply a minimum import price at price 
band floor level. 
45. As can be clearly seen from Table V of Argentina's First Written Submission36, in all cases  
the entry price for imports to Chile under the amended PBS is higher  than the entry price with a 
minimum import price at the band floor level. 
46. Fourth, Argentina provided evidence that the ame nded PBS does not ensure that the entry 
price of wheat and wheat flour imports to Chile falls in tandem with falling world market prices. 
There can be no doubt that the amended PBS does not merely moderate the effect of fluctuations in 
world market prices on the Chilean market. 
47. To ensure that the entry prices of imports to  Chile behave the same way as FOB prices, Chile 
had just to apply an ordinary customs duty . Chile knows this, but it does not apply an ordinary 
customs duty,  precisely to avoid ordinary customs duties' effects and to insulate Chilean market from 
international market evolutions. It is pure logic.  Why, if not, Chile has avoided applying an 
ad valorem  or specific duty and attempted for the second time to maintain a system as complex as the 
amended PBS? 
The floor and ceiling of the amended PBS insulate  the Chilean market from international price 
developments 
 
48. In its present form the PBS impedes the transmi ssion of international price developments to 
the domestic market, in much the same way as ot her categories of prohibi ted measures listed in 
footnote 1 to Article 4.2 of the Agreement on Agriculture , since the floor and ceiling prices of Chile's 
price bands no longer vary with either world market prices or historical prices, but have been 
                                                      
33 First Written Submission by Ar gentina, Section C.I.2.2. 
34 Rebuttal by Chile, para. 80. 
35 Chile – Price Band System,  Report of the Appellate Body, para. 261. 
36 First Written Submission of Argentina, para. 167. WT/DS207/RW 
Page D-10  
 
  determined once for the entire period from 16 December 2003 to 15 December 2014
, without bearing 
any relation to international prices.  
49. Argentina considers that the current system has a further distortive effect, since the floor and 
ceiling prices will not be adjusted until 2007. Similarl y, the new PBS leads to even greater distortions 
considering that from 2007 onwards these paramete rs will be established on the basis of fixed 
coefficients, thereafter isolating the system from fluc tuations on the international markets for a further 
period of seven years, or probably more.37   
50. Under the amended PBS, due to the factor of 0,985, the floor and ceiling vary without any 
relation  to world market or historical prices. Neither do they vary as a function of the transaction 
value, a characteristic shared by the entire PBS.  
51. Chile asserts that the fact that the factor of 0,985 is applied until 2014 is a predictability 
guarantee for market players.38 The predictability Chile refers to do es not exist. It is clearly evident 
from Law 19.897 that there is no guarantee that the PBS will be dismantled in 2014. If there is any 
predictability, it is the certainty that international prices will not  be reflected by the floor and ceiling 
of the amended PBS in Chile's internal market. That is the only guarantee the PBS can offer. 
The reference prices of the amended PBS insulate the Chilean market from international price 
developments 
 
52. Argentina has demonstrated that the amended PBS reference prices, by the way they are 
established, are neither transparent nor predictable and insulate the Chilean market from international 
price developments.39 
53. Regarding the insulation consequences deriving from the fact that the amended PBS reference 
prices are based on only two predetermined markets of concern , Argentina recalls that bread wheat 
is sold -at least- in two other markets than the on es selected by Chile and which are not reflected on 
the reference price: Chicago and Kansas.40  
54. Regardless, Chile has tried to justify the estab lishment of the reference prices based on FOB 
prices in Argentina and United States, because accordi ng to Chile, "[i]n the last six years (2000-2006) 
40 per cent of Chilean wheat imports came from th e United States and 31 per cent from Argentina".41 
It is strange that Chile does not provide a re ference quoting the source of that information. 
Nevertheless, Argentina had access to Chile's ow n records for the period during which the amended 
PBS has been in force. Those reco rds show a different story: during the two complete years since the 
establishment of the amended PBS (i.e. 2004-2005), Ca nada has always been a larger exporter of 
wheat to Chile than the United St ates, either in volume as well as in amount. I will ask the Members 
of the Panel to turn your attention to Exhibit ARG-31 which is being distributed now. This is a 
printout of ODEPA's (Chile's official source) we bpage showing Chile's records of wheat imports for 
2004 and 2005. As it is clear from the first page of  this exhibit, in 2004 Canada exported around 54 
million tons of wheat while the United States accounted  for almost 40 million tons. If we now turn to 
the second page, showing wheat imports for 2005, the difference between Canada and the United 
                                                      
37 In effect, the amended PBS has no ending date. Law 19.897 establishes that "In 2014, the President 
of the Republic shall evaluate  the modalities and conditions of application of the price band system, taking into 
consideration international market conditions, the requirements of the industrial, productive and consumer sectors and Chile's trade obligations at that date." See Exhibit ARG-1. 
38 Rebuttal by Chile, para. 86 
39 First Written Submission by Argentina, paras. 214 to 219 and Rebuttal by Argentina, paras. 107 and 
108. 
40 First Written Submission by Argentina, para. 218. 
41 Rebuttal by Chile, para. 72.  WT/DS207/RW 
 Page D-11 
 
 
  States is even larger: Canada acc ounted for almost 40 million tons while the United States accounted 
for around 20 millions. It is clear that Canada ha s been a relevant exporter to Chile. However for 
Chile's PBS, this is meaningless. Although Canada is certainly a market of concern for Chile, the 
amended PBS will never reflect Cana da's relevance in Chilean foreign trade of wheat, nor Canadian 
prices will be reflected in Chile's internal markets.  Therefore, Chile's argument that the amended PBS 
"reference prices now correspond to f.o.b. prices on the two markets of most concern for Chile"42 is 
baseless. To put it in the Appellate Body words, it is not by any mean s certain that the reference price 
used under the PBS is representative of the curre nt world market price, and it is certainly not 
representative of prices in all markets of concern.43 
55. Regarding the problems with the sources for the reference price, after Argentina insisted 
twice on this issue, Chile finally revealed the myst ery: for the first semester (Bread Wheat, Argentine 
Port) Chile uses SAGPyA's quotation ( http://www.sagpya.mecon.gov.ar ), the official argentine source 
which provides "Official FOB Prices". For the second semester (Soft Red Wint er No.2 wheat), Chile 
uses the information from the Chicago Board of Trade ( http://www.cbot.com ).44  
56. After Chile's unveiling the source for the establis hment of the reference price, the problems 
have become clearer. 
57. First , contrary to what Chile affirms, the o fficial Argentinean source (SAGPyA) does not 
publish the quotation of "Bread Wheat, Argentin e Port". Instead, as Ch ile acknowledges, what 
SAGPyA publishes is the " Official FOB Price " for bread wheat, which is not "Bread Wheat, 
Argentine Port" FOB price. I would like to turn  your attention to Exhibit ARG-32 which we are 
distributing now. It is a printout of SAGPyA's "Official FOB Prices" from some days ago. As it can 
be clearly seen, the header reads "Precios FOB Oficiales", which is the Spanish translation for 
"Official FOB Prices". It is clear now that the quotation " Bread Wheat, Argentine Port " (or its 
translation to Spanish "Trigo Pan Puerto Argenti no") is not published by SAGPyA as Chile states.45 
Indeed, " bread wheat, Argentine port " is a theoretical construction, not developed by SAGPyA. 
58. Second , unless Argentina had initiated this dispute,  wheat and wheat flour exporters from all 
over the world would have not  known where to look for the future  reference price. No matter what 
"abilities" and market knowledge the exporters had46, it would have been very difficult for them to 
establish the future amount of duties resulting from the difference between an  intransparent future 
reference price and the floor price. Now, it is clear  that SAGPyA does not publish what Chile affirms. 
In fact, if the exporter recurs to SAGPyA, he will not  a get a "Bread Wheat Argentine Port" quotation. 
59. In the same way that Chile gives now this ex-post  clarification regarding the source for 
"Bread Wheat, Argentine Port ", Chile now submits that the source of information for the "Soft Red 
Winter" FOB Price (Gulf) is the Chicago Board of Trade.47 In this case, the information is not 
publicly available. In fact, it is paid information. It  is an extra charge exporters face for accessing the 
Chilean market.48 This is how transparent and pr edictable Chile's amended PBS is. 
60. Regarding the qualities of concern , contrary to what the Appellate Body established49, Chile 
did not explain how they were are selected. Chile 's amended PBS establishes the references prices 
                                                      
42 Rebuttal by Chile, para. 72. 
43 Chile – Price Band System,  Report of the Appellate Body, para 249. 
44 Rebuttal by Chile, para. 73. 
45 See SAGPyA's web page: http://www.sagpy a.mecon.gov.ar/scripts/0-2/fobtodo.asp 
46 First Written Submission by Chile, para. 162. 
47 Rebuttal by Chile, para. 73. 
48 See http://www.esignal.com/c bot/pricing/default.asp . Esignal.com is a sub page (link) of CBOT.com 
where pricing information is provided. 
49 Chile – Price Band System,  Report of the Appellate Body, para 249. WT/DS207/RW 
Page D-12  
 
  based on only two of those qualities, namely "Bread Wheat, Argentine Port" and "Soft Red Winter". 
However, there are many types or qualities involved in the international trade of wheat. Indeed, 
according to Chile's own records there are at least two other qualities or types of wheat relevant for 
Chile: "Soft White Winter No 2" and "Western White Winter No 2". At this respect, I would like to turn your attention to Exhibit ARG-33, being di stributed now. There you can see ODEPA's prices 
record for different qualities of wheat since 1991. In the first and second columns you can see the 
FOB prices for the two qualities of concern relevant  for the amended PBS and now familiar to us. In 
the third and fourth columns, ODEPA records the FOB price for the two other qualities just mentioned: "Soft White Winter No 2" and "Wester n White Winter No 2". Thus, according to its own 
records there are at least two other qualities or types of wheat relevant for Chile. Therefore, it is clear 
that Chile knows that ther e are at least two, and presumably mo re, other relevant qualities of concern 
and probably Chile knew it at th e time the PBS was amended.  
61. It is noteworthy that among the -at least- four relevant qualities and markets of concern, Chile 
chose those qualities that since 1991 have been the lowest priced
. I would ask the Panel at this point 
to turn to page 4 of the same Exhibit ARG-33 wher e the average of the prices of these four categories 
recorded since 1991 are highlighted at the botto m. Clearly, the qualities "Bread Wheat, Argentine 
Port" and "Soft Red Winter" have the lowest FOB prices. Thus, the gap between the reference price 
and the floor price is further expanded, more duties are levied and the entry price is higher  than if 
Chile took into account all the qualities of concern. Again, it is useful recalling that the Appellate 
Body found that "[u]nder Chile's price band system, th e price used to set the weekly reference price is 
the lowest  f.o.b. price observed, at the time of embarkation, in any foreign 'market of concern' to Chile 
for 'qualities of products actually liable to be imported to Chile'".50  
62. Furthermore, Chile does actually import wheat of qualities different from those used for the 
calculation of the reference prices. In Exhibit ARG-34, being distributed now, you can see a selection of import data from the Chamber of Commerce of  Santiago de Chile (in Spanish "Camara de 
Comercio de Santiago de Chile") for 2004 and 2005 . There you can see on the first page that, for 
example, in March 2004, Chile imported wheat of the type "Soft White". Similarly, on the second 
page of the same Exhibit you can see that, for exam ple, in July 2005, Chile imported wheat of the 
type "Canadian 3WR". Page 3 of the same Exhib it shows imports to Chile of wheat of the type 
"Western Red Spring" and "Canadian 1WR". So, no t only Chile imports wheat of qualities different 
from those taken into account for the establishment of the reference prices but also Chile applies to 
those imports reference prices based on the two pr edetermined qualities of concern established by the 
amended PBS. 
63. Summing up, through the reference prices, the am ended PBS impedes the transmission to the 
Chilean market of the prices of other qualities of wheat. By not taking into account all the relevant 
markets and qualities of concern for the calculation of the reference prices, the amended PBS also 
insulates Chile's market from international price deve lopments. In fact, if an exporter ships any other 
type or quality of wheat rather than "Bread Wheat, Argentine Port" or "Soft Red Winter No. 2", Chile 
will apply to that shipment a reference price a nd levy specific duties based on one of those two 
qualities, different from the quality actua lly being imported. It is worth recalling at this point that the 
Appellate Body found that the "… reference price used under Chile's Price band system is certainly 
not representative of an average of current lowest prices found in all
 markets of concern".51 
64. The problem with the amended PBS's reference pr ice is that, compared to the original PBS, 
the insulating consequences are much worse. In fact, international price developments of an extense 
                                                      
50 Chile – Price Band System,  Report of the Appellate Body, para. 249 (Underlining added). 
51 Chile – Price Band System,  Report of the Appellate Body, para. 249 (Emphasis in the original, 
underlining added). 
  WT/DS207/RW 
 Page D-13 
 
 
  period of the year are not reflected at all by the amended PBS. According to Chart 2 of the Annex to 
the Decree 831/2003, the relevant price leading to the establishment of the reference price, are those recorded between 26 November to 10 December, 27  January to 10 February, 27 March to 10 April, 
27 May to 10 June, 27 July to 10 August, and 26 Se ptember to 10 October. Those are the relevant 
time periods for the calculation of the reference pric es. These groups of days account for a total of … 
90 days. Taking into account that a year has 365 days, th at is less than 25 per cent of the year. More 
explicitly, international price developments record ed during 275 days or 75 per cent of the year will 
never be reflected in the reference price. For the amended PBS the international prices recorded 
during all those 275 days simply do not exist . As regards to the daily prices recorded during each day 
of each of the 15-day periods that form the remaining 90 days, they are reflected after they are 
recorded, with a delay ranging from 6 days to two months.
52 
65. Thus, the situation now is even worse  than with the original WTO-inconsistent PBS. In fact, 
although completely full of distortive effects, the original PBS, at least took into account all the 52 weeks of each year to establish the weekly referenc e price. As it is clear now, for the amended PBS 
only 13 of those weeks (25 per cent of the year) are now relevant.  
66. In short, Chile wants this Panel to find th at the amended PBS reflects international price 
developments, overlooking the fact that the floor pr ice, will never transmit international prices. For 
the other fundamental feature for the assessment of duties, the reference price, prices recorded during 
275 days of the year cannot be reflected: simply they do not  exist.  More over, the remaining 90 days 
are recorded in only two markets of concern, when  there are at least four more (Chicago, Kansas, 
Portland and Canada) and one of them (Canada) has been at least as relevant as the two established 
"markets of concern". Furthermore, the referenc e prices are based on the two lowest priced qualities 
of concern, when there are at least two further re levant qualities of concern fo r Chile. If this were not 
enough, the same reference price applies to all imports that Chile does import, regardless the origin, 
quality of concern and transaction value.
53  This is how Chile pretends to argue that the amended PBS 
transmits international prices. 
The amended PBS has no relation to the transaction value 
 
67. Chile maintains that what "wo rries" Argentina is that the sp ecific duties resulting from the 
amended PBS are neither related with commercial transactions nor modified by changes in international prices.
54 Chile distorted Argentina's argument. Argentina is not questioning the resulting 
duties. Argentina's arguments relate to the underlying measure, the amended PBS. 
68. First , what Argentina argues is that one additiona l aspect of the amended PBS that insulates 
Chile's market from the transmission of international prices, is the complete absence of any relation of 
all of its features with the transaction value of the shipments.55 In fact, the amended PBS is totally 
unrelated to the transaction value. Simply put, within the amended PBS, the transaction value has no 
meaning . 
69. Second , although the amended PBS has no relation w ith the transaction value, contrary to 
Chile's assertion, the resulting duties  are, in fact, modified by international prices. As Argentina 
asserted, although specific duties resulting from the amended PBS do not vary during the two-month 
                                                      
52 For example, the prices recorded between 27 Ja nuary and 10 February, will be reflected in the 
reference price established for the pe riod 16 February to 15 April. 
53 Chile – Price Band System,  Report of the Appellate Body, para. 250. 
54 Rebuttal by Chile, para. 32. 
55 First Written Submission by Argentina, paras. 137, 141, 153, 157, 182, 196, 220, 222, 223 and 228; 
Rebuttal by Argentina, paras. 60, 82, 143 and 198. WT/DS207/RW 
Page D-14  
 
  period, they change following price changes in the markets of concern.
56 The paradox is that they 
change in opposite directions : when international prices fall, specific duties rise.57 It is as simple as 
that. To make this clearer, I would like to turn th e Panel's attention to Exhibits ARG-35 and ARG-36 
which are being distributed now. I want you to pay special attention to the graph in Exhibit ARG-35. That graph is based on data from the Chart in exhi bit ARG-36, which in its turn is based on ODEPA's 
information. It reflects the trajectory in indexed terms of the specific duties and reference prices 
during the period in which, as a result of the ame nded PBS, the duties were imposed (16 December 
2004 – 15 April 2005). This graph is factual evidence th at clearly shows the point: when the reference 
prices fall, the specific duties move in an opposite direction, or in other words, rise, completely 
undercutting the effect of the decline in wheat intern ational prices. It is worth highlighting that this 
graph has not involved a ny calculation, other than the necessary for indexing and simply stems from 
evidence already presented by Ar gentina in this proceeding.
58 In fact, these exhibits are exclusively 
based on data provided by ODEPA.59  Argentina does not understand how, then, Chile can argue that 
the amended PBS does not disconnect Chile's ma rket from international price developments.60 
3. The amended PBS is neither transparent nor predictable 
70. With the purpose of preserving the intranspar ent and unpredictable aspects of the amended 
PBS from the Panel's scrutiny, during this pro ceeding Chile has systematically maintained the 
argument that transparency and predictability are not requirements of Article 4.2 of the Agreement on 
Agriculture .  Furthermore Chile affirmed that the Appella te Body just found that only variable import 
levies are intransparent and unpredictable.61  
71. Argentina demonstrated that the Panel and th e Appellate Body found that the core and 
fundamental features of the old PBS lacked transparency and predictability.62 The logical extension is 
that the amended PBS can be challenged for its lack of transparency and predictability.  
72. Even in the unlikely event that  certain specific features of the PBS had not been addressed by 
the Panel or the Appellate Body findings, the amended PBS should still be found intransparent and 
unpredictable.  
73. Chile's last bid has been to maintain that Article 4.2 of the Agreement on Agriculture  does not 
contain the words transparency and predictability.63 However, in spite of Chile's wishes, transparency 
and predictability are implicit requirements of Article 4.2 of the Agreement on Agriculture.64 First , 
the Appellate Body has already recognized that th e lack of transparency and predictability "… 
contribute to distorting the prices of imports by impeding the transmission of international prices to the domestic market".
65  Second , the Appellate Body established that the lack of transparency and 
                                                      
56 First Written Submission by Argentina, Section C. I.2.4 and Rebuttal by Argentina, Section B.2.2. 
57 First Written Submission by Argentina, para. 54 
58 For example, inter alia , Exhibit ARG-6 or Tables I and II, paras. 134 and 138, respectively. 
59 See Exhibit ARG-6. 
60 What should be also highlighted is that the amount levied by ordinary specific duties does not vary 
when international prices change. In those cases, what varies is the amount of the duty in relative terms (percentage) with respect to the international price but, usually, the absolute amount does not change. In the case 
of the amended PBS, following the decline of the referenc e prices below the price band  floor, the amount of the 
duty varies in relative and absolute
 terms. 
61 Inter alia, First Written Submission by Chile, para. 66, 81  and 83, and Rebuttal by Chile, paras. 29 
and 30. 
62 First Written Submission by Argentina, Section C.I.3 and Rebuttal by Argentina, Section B.3. 
63 Rebuttal by Chile, para. 29. 
64 Rebuttal by Argentina, para. 124. 
65 Chile – Price Band System,  Report of the Appellate Body, para. 234.  WT/DS207/RW 
 Page D-15 
 
 
  predictability prevents enhanced market access for imports of agricultural products, contrary to the 
object and purpose of Article 4 of the Agreement on Agriculture.66  
74. According to Chile, "… Argentina appears to  claim that any measure applied in the 
agricultural sector that is not transparent and/or pr edictable is inconsistent with Article 4.2 of the 
Agreement on Agriculture ".67  Rather, Argentina's position is that an intransparent and/or 
unpredictable border measure applied to agricultural im ports cannot be consistent  with Article 4.2. To 
the contrary, the logical extension of Chile's position would be that any not transparent and/or predictable border measure applied to the ag ricultural sector woul d anyhow be consistent
 with 
Article 4.2 of the Agreement on Agriculture , in manifest contradiction to what the Appellate Body 
established regarding the object and purpose of Article 4 of the Agreement on Agriculture.  
75. Chile stated that the fact that  Argentinean exporters do not know today the duties they will 
pay in the future is not prohibited by any WTO provision and nobody can guarantee that the 
ad valorem duties applied today by th e WTO members will be the same in 2007.68 In addition to that, 
Chile stresses that nobody can argue that its MFN ge neral ad valorem duty is not an ordinary customs 
duty because, due to a plan, it has progressively and automatically been reduced from 11% to 6% 
between 1999 and 2003.69 
76. First , unlike the amended PBS, Chile's MFN genera l ad valorem duty is an ordinary customs 
duty because it is expressed as an ad valorem rate , as the Appellate Body required. Chile's PBS is 
clearly not expressed in and ad valorem or specific duty rate. 
77. Second , unlike the amended PBS, Chile's MFN general ad valorem duty has not varied due to 
a formula .  Additionally, its variation has certainly been  transparent and predictable. As Chile itself 
proved, Chile's MFN general ad valo rem duty has varied due to a plan.70  
78. Third , the fact that an exporter does not know and cannot reasonably predict what the amount 
of duties will be, is one among several characteristi cs that renders the amended PBS inconsistent with 
Article 4.2 of the Agreement on Agriculture . This was the Appellate Body reasoning71, and the 
reasoning followed by Argentina. Argentina has explained all the problems with this72, as well as with 
Chile's counterarguments.73 Instead of rebutting the fact that an exporter does not know and cannot 
reasonably predict what the amount of duties will be, Chile's answer to this was that "[e]ven though 
Chile does not know precisely how these exporters operate, it does not seem reasonable to assume 
such ignorance ".74 Additionally, Chile argues that Argentina' s extensive listing of all the additional 
steps an exporter has to take in order to predict futu re reference prices "…implies that it is not part of 
his own business as such – but an additional task – to find out about the conditions of access to his 
chosen export market …". Then Ch ile asks "what is part of the 'own business' of an Argentine 
exporter."75 Argentina would reply with the following question: Can Chile reasonably argue that 
carrying with the burden of finding out about the unfair conditions of access imposed by a measure 
other than an ordinary customs duty, is part of an exporter's own business? There is one clear answer 
to this: no. If Chile imposed an ordinary customs duty expressed in the form of an ad valorem or 
                                                      
66 Chile – Price Band System,  Report of the Appellate Body, para. 258. 
67 Rebuttal by Chile, para. 31. 
68 Rebuttal by Chile, para. 95. 
69 Rebuttal by Chile, para. 105. 
70 See Exhibit CHL-8: Law 19.589 providing for a rebate on the tariff rate and introducing amendments 
to other fiscal and economic legislation. Published in the Official Journal on 14 November 1998 
71 Chile – Price Band System , Report of the Appellate Body, para. 234. 
72 First Written Submission by Ar gentina, Section C.I.3.2. 
73 Rebuttal by Argentina, paras. 125-135. 
74 Rebuttal by Chile, para. 93. 
75 Rebuttal by Chile, para. 92. WT/DS207/RW 
Page D-16  
 
  specific duty, the exporter would not have to face all the complexities described by Argentina. The 
Panel should not be misled by Chile's argument. 
79. If in the amended PBS there is any chance of pr edicting intransparent future reference prices, 
which there is none, that chance is not different from the possibility that existed with the original PBS. 
Future prices for wheat existed then, as they ex ist now, and the same problems that Argentina now 
highlights existed at the time of the original proceeding as well. In fact, that was enough for the 
Appellate Body to find that the original PBS was in consistent because an e xporter was less likely to 
ship to a market if that exporter could not predict what the amount of duties would be.
76  So Chile's 
arguments are unsustainable. 
80. Fourth , it is obvious that ad valorem  duties can change and no one can guarantee otherwise. 
That is what happens with any ordinary customs duty. However, unlike the amended PBS, ordinary 
customs duties do not include a formula that ca uses import duties to vary automatically and 
continuously and, on top of that, they are tran sparent and predictable. Conversely, what is guaranteed  
is that, due to the PBS, if the required conditions are met, an exporter will mandatorily face a different 
duty every two months.77 In fact, contrary to what Chile has asserted in its submissions78, the PBS 
Law and Regulation give no discretion  to Chile to decide whether or not to impose the duties: if the 
reference prices fall below the band fl oor, specific duties will be levied. 
4. The amended PBS is similar to a variable import levy and a minimum import price 
81. As it has been shown, the amended PBS is a border measure similar to a "variable import 
levy" and a "minimum import price" within the meaning of footnote 1 to Article 4.2 of the Agreement 
on Agriculture . 
82. The Appellate Body has clearly defined the necessary and the additional features of the 
variable import levies: the presence of a formula causing automatic and continuous variability and the 
lack of transparency and predictability in the le vel of duties that will result from such measures. 
Argentina has shown how the amended PBS fulfils  all the requisites and includes the features 
referenced by the Appellate Body to be characterized as a variable import levy.79 
83. Chile has repeatedly stated that for a border measure to be a variable import levy, it must 
"sustain" a price.80  However, when defining "variable impor t levies" in this dispute the Appellate 
Body said nothing about price sustainment . The Panel made reference to this81 but its finding was 
rejected by the Appellate Body.82 So this Panel should reject Chile's argument that for a border 
measure to be a variable import levy, it must "sustain" a price.  
84. Nevertheless, should the Pane l accept Chile's incorrect definition -which it should not-
Argentina has already demonstrated that the ame nded PBS, in fact, sustains a price, because the 
specific duties resulting from the amended PBS tend to  elevate the entry price of imports to Chile 
above the price band floor and the entry price of Chilean imports under the amended PBS is higher 
than it would be if Chile were to apply a minimu m import price at the price band floor level.  
                                                      
76 Chile – Price Band System , Report of the Appellate Body, para. 234. 
77 Rebuttal by Argentina, para. 145. 
78 First Written Submission by Chile, para. 93 and Rebuttal by Chile para. 101 and 120. 
79 First Written Submission by Argentina, paras. 236 to 283. Rebuttal by Argentina, paras. 138 to 159. 
80 Rebuttal by Chile, para. 5 
81 Chile – Price Band System , Report of the Panel, para. 7.36. 
82 Chile – Price Band System , Report of the Appellate Body, paras. 230 and ss.  WT/DS207/RW 
 Page D-17 
 
 
  85. In its Rebuttal Argentina has clarified why the PBS is a border measure similar to a minimum 
import price.83 In spite of that, Chile has repeatedly argued that unlike its PBS, "minimum import 
price schemes generally operate  in relation to the actual transaction value of the imports".84  Chile has 
repeatedly emphasized that, because the PBS does not  operate in relation to the actual transaction 
value but to a reference price, it is not similar to a minimum import price.  
86. First , Argentina has not argued that the PBS is identical  to a minimum import price. Rather, 
Argentina's argument is that the amended PBS is a border measure similar  to a minimum import 
price. The fact that the PBS does not operate in re lation to the actual transaction value of the imports 
does not mean it is not similar to a minimum import price. Chile's PBS needs not to be identical to 
variable import levies or minimum import prices to be a prohibited measure, provided that the 
amended PBS bears sufficient resemblance to the meas ures listed in footnote 1 to Article 4.2 of the 
Agreement on Agriculture. Indeed, that same reaso ning was developed by the original Panel and 
upheld by the Appellate Body.85  
87. Second , the Panel described "minimum import pric es" as follows: "schemes [that] generally  
operate in relation to the actual transaction value of the imports".86 The Appellate Body did not 
reverse that finding. The word "generally" implies "u sually", but not "always". This is an important 
distinction. If the Panel had meant "always", it woul d have so stated. Therefore, there are some cases 
where border measures do not operate in relation to the actual transaction value of the imports, but are 
similar to minimum import prices, just like the amended PBS.  
88. In fact, the original PBS, like the amended PB S, did not have any relation with the actual 
transaction value of the imports. In spite of that, the Panel and the Appellate Body in the original 
proceedings found that the old PBS was a border measure similar to a minimum import price. Indeed, 
the absence of any relation with the transaction valu e of the shipments was an aspect of the old PBS 
that contributed to enhance the distorting effects of the old PBS87 and to enhance the distorting effects 
of the amended PBS as well. 
89. Even if the Panel were to consider that the amended PBS is not similar to a minimum import 
price, quod non , evidence shows that, as a distorting measure,  its consequences are either similar or 
worse than those resulting from a minimum import pri ce. Argentina has demonstrated that the specific 
duties resulting from the amended PBS tend to elevate the entry price of imports to Chile above the 
price band floor.88 Additionally, Argentina has provided the formula for calculating the import price 
resulting from the Appellate Body Report, showing what  the entry price would be if Chile applied a 
minimum import price.89 Chile recognized that that formula was correct.90 Then, Argentina 
demonstrated that the entry price of Chilean im ports under the amended PBS is higher than it would 
be if Chile were to apply a minimum import price at price band floor level.91 In fact, as stated before, 
due to the formula, the PBS does not permit any transm ission if that means that the entry price has to 
fall below the floor price , the formula together with the band floor work as a brake  for the decline in 
the entry price and for any transmission of inte rnational prices below the level of the floor. 
90. The Appellate Body found that that Chile's old PBS could have the effect of impeding the 
transmission of international price developments to the domestic market in a way similar to that of 
                                                      
83 Rebuttal by Argentina, Section B.5 
84 Rebuttal by Chile, para. 7. 
85 Chile – Price Band System , Report of the Appellate Body, para. 243 and 244 
86 Chile – Price Band System , Report of the Panel, para. 7.36(e).  Emphasis added. 
87 Chile – Price Band System , Report of the Appellate Body, para. 250. 
88 First Written Submission by Ar gentina, Section C.I.2.1. 
89 First Written Submission by Ar gentina, Section C.I.2.3. 
90 Rebuttal by Chile, para. 162. 
91 First Written Submission by Ar gentina, Section C.I.2.3. WT/DS207/RW 
Page D-18  
 
  other categories of the prohibited measur es listed in footnote 1 of Article 4.2.
92 Therefore, if the 
distorting effects of the amended PBS are either similar or worse than the distorting effects of minimum import prices, it logically follows that  the amended PBS cannot be consistent with 
Article 4.2 of the Agreement on Agriculture. 
5. The amended PBS does not result in any improvement of access conditions to the 
Chilean market 
91. During this dispute Chile repeatedly stated  that the amended PBS has resulted in an 
improvement to Chilean market access conditions
93 and that due to the scheduled reduction of floor 
and ceiling prices, in 2014 market access will be better than today.94  
92. Argentina has clarified the problems with these arguments.95 With regard to the improved 
market access since the amended PBS is in force, there were several inconsistencies, inter alia , in 
Chile's only evidence (Exhibit CHL-7). In fact, Ch ile recognized that the exhibit is not accurate.96 
Furthermore, Chile comes up with the surprising argument that the distorting effects resulting from the PBS are common to all customs duties of any kind.
97  Beside the fact that this statement is a 
recognition that the amended PBS effectively distor ts, it is simply incorrect and Argentina strongly 
disagrees. The Appellate Body has clarified that, like the PBS, all the border measures listed in 
footnote 1 have in common that they restrict the volumes and distort the price of imports of agricultural products in ways different from the ways that ordinary customs duties do.
98 
93. With respect to Chile's argument regarding th e future improvement in market access in 2014 
due to the scheduled reduction of floor and ceiling pr ices, that argument runs contrary to the argument 
that the PBS is consistent with Article 4.2 of th e Agreement on Agriculture. If such consistency exists, 
why is Chile so worried about showing that in the future  market access will be improved? Does it 
mean that present market access is not guaranteed? In any case, if the amended PBS were consistent, 
there would be no need to be confident on future market access. Argentina has highlighted all the 
problems with such an argument.99 Chile continues to rely on its main assumption (i.e. that the 
reference price will remain stable until 2014)100, although explicitly having recognized it was baseless, 
because it is impossible to determine it so far in advance.101 There is simply no evidence to assert that 
market access will improve in the future. 
                                                      
92 Chile – Price Band System , Report of the Appellate Body, para. 246. 
93 First Written Submission by Chile, Section V.6 and Rebuttal by Chile, Section IV.5 
94 First Written Submission by Chile, paras. 186 to 192 and Rebuttal by Chile, paras. 175 to 181. 
95 Rebuttal by Argentina, Section B.6. 
96 Rebuttal by Chile, para. 169. 
97 Rebuttal by Chile, para. 171. 
98 Chile – Price Band System , Report of the Appellate Body, para . 200: "During the course of the 
Uruguay Round, negotiators identified certain border measures which have in common that they restrict the volume or distort the price of imports of agricultural products.  The negotiators decided that these border 
measures should be converted into ordinary customs duties
, with a view to ensuring enhanced market access for 
such imports" (Underline added). See also Chile – Price Band System , Report of the Appellate Body, para 227. 
99 Rebuttal by Chile, para. 217 to 238. 
100 See for example, Rebuttal by Chile, paras. 177 and 179 
101 Rebuttal by Chile, para. 176, in fine .  WT/DS207/RW 
 Page D-19 
 
 
  III. ARGENTINA'S ARGUMENTS IN RELATION TO THE FACTOR OF 1,56 
APPLICABLE TO WHEAT FLOUR ARE WITHIN THE TERMS OF REFERENCE OF THIS PANEL  
94. Chile argues that Argentina's arguments in relati on to the factor of 1,56 applicable to wheat 
flour are not within the terms of reference of this  Panel, because it is "a claim which Argentina could 
have raised and pursued in the original dispute, but failed to do so".
102 
95. Chile's argument is incorrect. Chile seems not to see the difference between "claims" and 
"arguments". Argentina's argument in relation to the factor of 1,56 is not a claim: it is an argument .  
96. As the Appellate Body stated in Korea – Dairy Products , "By 'claim' we mean a claim that 
the respondent party has violated, or nullified or im paired the benefits arising from, an identified 
provision of a particular agreement".103 
97. In these proceedings Argentina has raised claims with respect to the amended PBS 
inconsistency with Article 4.2 of the Agreement on Agriculture , the second sentence of Article II:1(b) 
of the GATT 1994 and Article XVI.4 of the Agreement establishing the World Trade Organization . 
The argument in relation to the factor of 1,56 su pports the claim of the PBS inconsistency with 
Article 4.2 of the Agreement on Agriculture . It is an additional argument  showing that the amended 
PBS causes insulation from the international market. A plain reading of the Table of Contents of 
Argentina's Written Submission is enough to unde rstand this simple argumental structure.  
98. The factor of 1,56 applied to the duties and reba tes determined for wheat in order to calculate 
the duties and rebates applicable to wheat flour , insulates the entry price of wheat flour from 
international price developments.104  Three sub-arguments support this main argument105:  (1) wheat 
flour exporters have to pay specific duties which not  only bear no relation to the transaction value but 
also bear no relation to the product in question, sin ce they are calculated on the basis of those applied 
to another product, namely, wheat;  (2) the way in  which Chile determined the factor 1,56 is not 
transparent, since in its legislation Chile has neith er explained nor justified in any way the basis on 
which it was established;  (3) the 1,56 factor is baseless from a technical or price-based point of view. 
Therefore, it is an argument that support the cl aim of inconsistency of  the amended PBS with 
Article 4.2 of the Agreement on Agriculture . 
99. Chile has not argued that the claim related to Article 4.2 of the Agreement on Agriculture  is 
not within the terms of reference of this Panel. Thus, this Panel is completely free to accept and 
analyse Argentina's arguments in relation to the factor of 1,56106 in order to find that the amended 
PBS is inconsistent w ith Article 4.2 of the Agreement on Agriculture .  
100. In the alternative, even if the Panel found that  Argentina's arguments in relation to the factor 
of 1,56 are a new "claim", those arguments are within  the terms of reference of this Panel. As Chile 
itself admits, the arguments regarding the factor of 1,56 are new ones. Therefore, the fact that there 
has been "… no finding of inconsistency (or of consistency) forcing Chile to amend that particular aspect 
                                                      
102 First Written Submission by Chile, paragraph 62. 
103 WT/DS98/AB/R, paragraph 139 
104 First Written Submission by Ar gentina, Section C.I.2.7. 
105 First Written Submission by Argentina, paras. 228 to 234. 
106 Consequently, it is not applicable to the fa ctor of 1,56 what was said in the cases EC – Bed Linen 
(Article 21.5 – India) and US – Countervailing Measures on Certain EC Products (Article 21.5 – EC)  as  those 
cases dealt with the admissibility of entertaining claims and not arguments. WT/DS207/RW 
Page D-20  
 
  of the PBS…"
107 does not prevent this Panel to consider the new arguments in relation to the factor of 
1,56.  
101. Only a few months ago the Appellate Body estab lished three scenarios in which the scope of 
proceedings under Article 21.5 may be limited by the scope of the original proceedings108, therefore 
precluding the complaining party from raising certain claims in a compliance proceeding:  (1) a party 
cannot make the same claim of in consistency against the same measu re (or component of a measure) 
in an Article 21.5 proceeding if the original Pa nel and Appellate Body found the measure to be 
consistent with the obligation at issue, (2) if the original Panel found that the complaining party had 
not made out its claim with respect to the measure  (or component of a measure) and, (3) a party may 
not, in proceedings under Article 21.5 of the DS U, seek to have the Appellate Body "revisit the 
original Panel report" when that report was not appealed. As this Panel can clearly observe, those 
scenarios do not exist in the present case. 
102. The new arguments raised by Argentina will fa cilitate this Panel to examine the amended 
PBS in its integrity. They refer to an aspect of th e measure taken to comply that was modified with 
respect to the original measure. In the amended PB S the factor of 1,56 is applied to a completely 
different basis from that to which it was applied in the original measure. 
103. Even when in the amended PBS the factor of 1,56 formally remains, the arguments in relation 
to this factor are within the terms of reference of this Panel because Chile modified the basis and 
consequently the result of its application. 
104. The specific duties applied to wh eat are the basis of calculation to which the factor of 1,56 
will be applied to determine the specific duties of wheat flour. The former duties are calculated as the 
difference between floor and reference prices, multiplied by 1 plus the ad valorem duty. As Chile has 
modified the way in which floor prices are calculated109, the way in which reference prices are 
established110, and the way to calculate the specific duties (due to the product by 1 plus the ad valorem 
duty)111, then the basis to which the factor of 1,56 is  applied has necessarily been modified and also 
have the results of its application.112  
105. The application of the factor of 1,56 in the amended PBS leads to a different  amount of duties 
than the amount of duties resulting from the original  PBS. In other words, the consequences of the 
application of the factor of 1,56 in the ame nded PBS are different from the consequences of its 
application in the original PBS .  
106. Chile maintains that Argentina's arguments rega rding the different basis and consequences for 
the application of the factor of 1,56 is a new argument that was not raised in the first submission.113 
According to Chile, Argentina originally questioned the factor 1,56 itself and afterwards it changed its 
position questioning the base to which it is applied.114 That is incorrect. Argentina's has always 
questioned the factor 1,56 itself.115 Argentina never changed its position. Argentina's arguments 
regarding the different basis and consequences of the application of the factor of 1,56 were developed 
                                                      
107 First Written Submission by Chile, para. 62. (Underlining added). 
108 Appellate Body Report  US – Softwood Lumber VI (Article 21.5 – Canada) ; WT/DS277/AB/RW, 
13 April 2006, footnote 150. 
109 First Written Submission by Argentina, Section B.3.3. 
110 First Written Submission by Argentina, Section B.3.4. 
111 First Written Submission by Ar gentina, Section B.3.5.2. 
112 Contrary to Chile's assertion, this was the case in US – Countervailing Mea sures on Certain EC 
Products (Article 21.5 – EC) , as Argentina stated in its Written Submission, paras. 269-278. 
113 Rebuttal by Chile, paras. 188-190. 
114 Rebuttal by Chile, paras. 191. 
115 First Written Submission by Ar gentina, Section C.I.2.7.  WT/DS207/RW 
 Page D-21 
 
 
  only after Chile argued that Argentina's original arguments were not within the Panel terms of 
reference. The arguments included in Argentin a's Rebuttal are simply not Argentina's main 
arguments. Those arguments were developed in Argentina's First Written Submission. 
107. Furthermore, Chile's due process rights are not  impaired in these proceedings. Argentina has 
not had a "second chance" to bring these argument s to the DSB because Chile has modified the 
factual basis on which the factor of 1,56 is applied a nd the results of its application, turning it into a 
modified aspect of the measure taken to comply. This was the first chance for Argentina to raise these 
arguments. Chile could have foreseen that new argume nts in relation to the factor of 1,56 would be 
raised when it modified the basis a nd the consequences of its application.116  Additionally, Argentina's 
arguments in relation to that factor were not rai sed in an advanced stage of these DSU Article 21.5 
proceedings. Evidence of that is that Chile was ab le to raise its arguments concerning Argentina's 
arguments in its First Written Submission. 
108. It is telling that Chile has not argued in its submissions that the factor of 1,56 does not distort 
the transmission of international prices. Indeed, after Argentina showing how, for many reasons, the 
factor of 1,56 insulates the entry price for wheat flour from international price developments, Chile's 
only justification for its application is that the factor has been fixed at 1,56 since 1996 because 
"between January 1986 and December 1995, the averag e ratio of the price of flour to the price of 
wheat was 1,566".  Therefore, as Chile recognizes, that  was the factor that was "built into" the Chilean 
legislation and it has remained "unchanged" ever since.117 
109. Thus, in addition to not having any relation to the transaction value, to the product in 
question, and to the technical production ratio betw een wheat and wheat flour, Chile applies a factor 
that, at the time of the entry into force of the ame nded PBS, reflected a price relation that was, at least, 
eight years old, and at the time of these complia nce proceeding the delay with regard to any 
meaningful price relation has reached a decade. This is how Chile purports to ju stify the application of 
the factor of 1,56 and the reason behind Chile's argument to leave the factor far away from the 
scrutiny of the Panel. 
IV. THE AMENDED PBS IS INCONSISTENT WITH THE SECOND SENTENCE OF 
ARTICLE II.1(B) OF THE GATT 1994 AND ARGENTINA'S CLAIM IN RELATION 
TO THAT PROVISION IS WITHIN TH E TERMS OF REFERENCE OF THIS 
PANEL 
110. During all these proceedings Argentina has clai med that the amended PBS violates the second 
sentence of Article II:1(b) of the GATT 1994, inasmuc h as it constitutes "other duties or charges" not 
recorded in the appropriate column of Chile's Schedule of Concessions (No. VII).118 That fact is so 
obvious that Chile cannot counter nor refute it. In stead of that,  in order to avoid addressing 
Argentina's claim, Chile introduced a procedural i ssue deviating the focus of the discussion: that the 
amended PBS is inconsistent with the second sen tence of Article II:1(b) of the GATT 1994.  
111. As Argentina previously stated "all that is re quired for a measure to be an ordinary customs 
duty is that "… be expressed in the form  of 'ad valorem or specific rates' ".119 A plain reading of the 
legislation enforcing the amended PBS shows that this measure is not expressed in the form  of 
                                                      
116 As it was stated in US – Countervailing Measures on Certai n EC Products (Article 21.5 – EC) , Panel 
Report, paragraph 7.71 . 
117 Rebuttal by Chile, paras. 200-201. 
118 First Written Submission by Argentina, paras. 289 to 295 (Section C.II); Rebuttal by Argentina, 
para. 241, 287 and 288. 
119 Chile – Price Band System,  Report of the Appellate Body, para. 277. WT/DS207/RW 
Page D-22  
 
  "ad valorem  or specific rates". To the contrary, the amended PBS is a complex mechanism that, as a 
border measure, has no resemblance with an ordinary customs duty. 
112. By not being an ordinary customs duty, th e amended PBS constitutes "other duties or 
charges" in the sense of the sec ond sentence of Article II:(1)(b) of the GATT 1994. By not being 
recorded in the corresponding column of Chile's Sc hedule of Concessions (No. VII), as it is mandated 
by paragraph 1 of the Understanding on the Interp retation of Article II:1(b) of the GATT 1994, the 
amended PBS violates the second sentence of that Article. 
113. As Chile explicitly recognized
120, Argentina did not raise nor pursued a claim in relation to 
that provision during the original proceedings. It is indeed a new claim  that Argentina has the right to 
raise in the frame of a proceeding under Article 21.5 of the DSU.  
114. On the other hand, Argentina's claim in relati on to the second sentence of Article II:1(b) of 
the GATT 1994 is within the terms of reference of this  Panel as it is a new claim with respect to a new 
measure , as Chile itself admitted.121 
115. Chile faces a curious dilemma: Argentina could ne ver have raised this same claim during the 
original proceedings as Chile states122, because the amended PBS is a new measure, different from the 
original measure. As Chile has properly established, it is a "new" PBS.123 However, if Chile argues 
that the amended PBS is not a different measure, it would auto matically be recognizing the amended 
PBS is equally inconsistent as the original PBS was.  
116. Chile's last attempt to convince the Panel that this new claim is not within of its terms of 
reference is twofold. First , Chile comes up with the now familiar argument that Argentina should 
have made this claim in the original proceedi ng because, following Argentina's reasoning, if the 
GATT violation follows the violation of Article 4.2 of the Agreement on Agriculture , Argentina had 
to make this claim in the original proceeding. But, in this sense, the original proceeding is irrelevant 
because we are now in front of a new measure, a "new PBS".124 Therefore, Argentina could not have 
raised this claim in the original proceeding b ecause the claims necessarily have to be different.125 
117. Second , Argentina has made its claims at the earliest  possible stage in these proceedings. 
Therefore, Chile has had the chance to rebut Argentina's clai m in its First Submission, the Panel has 
had a sufficient evidentiary basis on which to rule and has had enough time to deliberate. Chile's 
arguments are unsustainable: its due process rights have not been impaired at all.126 
                                                      
120 First Written Submission by Chile, para. 48. 
121 See Status Reports by Chile WT/DS207/15/Add.1, dated on 28 October 2003, third paragraph, and 
WT/DS207/15/Add.3, dated on 14 January 2004, second paragraph. Rebuttal by Argentina, para. 292. 
122 First Written Submission by Chile, para. 50 y 56. 
123 See footnote 122 above. 
124 First Written Submission by Argentina, para. 292. 
125 That was so established by the Appellate Body. Canada – Aircraft (Article 21.5 – Brazil),  Report of 
the Appellate Body, para 41. 
126 Chile argues that footnote 294 of the Panel Report  in US – Countervailing Measures on Certain EC 
Products (Article 21.5 – EC)  is related to arguments and not to clai ms, and therefore is not relevant as a 
precedent to show that Chile's due process rights are im paired (Rebuttal by Chile, para 205). However, that is 
not an accurate reading of the footnote. In fact, the Panel did refer to the new claims  on the likelihood of injury 
determinations, stating that, as a consequence of the Un ited States' only  chance to make its rebuttal during the 
meeting with the parties, it could not consider the new injury claim because of the limited evidentiary basis on 
which to rule and the limited amount of time to interact with the parties and for the Panel to deliberate ( US – 
Countervailing Measures on Certain EC Products (Article 21.5 – EC),  Report of the Panel, footnote 294 in 
fine). Thus, in that dispute, contrary to what Chile asserts, the Panel did refer to new claims , as in the present 
case.  WT/DS207/RW 
 Page D-23 
 
 
  118. Third , it is true that a violation of Article II: 1(b), second sentence, of GATT 1994  follows a 
breach of Article 4.2 of the Agreement on Agriculture . In fact, it is obvious that if the Panel finds the 
amended PBS not to be an ordinary customs duty,  then, the amended PBS is an "other duties or 
charges" that, by not being record ed in Chile's list (VII), is a measu re inconsistent with the second 
sentence of Article II:1(b) GATT 1994. However, Ar gentina's claim regardi ng the second sentence of 
Article II:1(b) stands by its own. The amended PBS is also  inconsistent with this provision, insofar as 
it is not expressed in ad valorem  or specific rates, and therefore is not an ordinary customs duty.127 
V. CONCLUSIONS 
119. Chile did not comply. It has "cosmetically" amended the old PBS while maintaining its 
distortive effects and fully preserving its lack of tran sparency and predictability. The measure taken to 
comply is not consistent with its obligations as a Member of the WTO. 
120. First , the Appellate Body established that "…all th at is required is that 'ordinary customs 
duties' be expressed in the form of ' ad valorem  or specific rates '. By not being expressed in the form  
of 'ad valorem  or specific rates, Chile's amended PBS is not an ordinary customs duty.  
121. Second , in addition to not being an ordinary cu stoms duty - because it is not expressed in the 
form of ad valorem or specific rates-, Chile's amended PBS insulates Chile's market from the 
transmission of international prices. As Argentin a has lengthily demonstrated along its Submissions, 
the disconnection of Chile's market from internationa l price developments results from the fact that 
the amended PBS: 
 – continues to elevate the entry price of imports to Chile above the price band floor; 
 
 – continues to "overcompensate" for the e ffect of decreases in international prices on 
the domestic market when reference prices are set below the price band floor;  
  – continues to make the entry price of Ch ilean imports higher than if Chile applied a 
minimum import price at the level of the price band floor, and  
 
 – continues to fail to ensure that the entry price of imports to Chile falls in tandem with 
falling world market prices.  
 122. That disconnection is the obvious and unavoidable consequence of the existence of: 
 – a formula that precludes the entry price of  imports from falling below the price band 
floor; 
  – floor and ceiling values determined on ce for the entire period from 16 December 
2003 to 15 December 2014 and, established from 2007 on the basis of a fixed coefficient of 0,985; 
 
 – reference prices staying unchanged for two months, established on the basis of the 
average of the daily prices recorded on onl y two predetermined markets, on only two 
predetermined qualities of concern and during only 90 out of 365 days; 
  – a multiplier consisting of 1 plus the general ad valorem duty added to the formula 
used to calculate the duty levels; 
 
                                                     
 
127 Chile – Price Band System,  Report of the Appellate Body, para. 277. WT/DS207/RW 
Page D-24  
 
   – the factor of 1,56 applied to the duties a nd rebates determined fo r wheat in order to 
calculate the duties and rebates applicable to wheat flour. 
  – the complete irrelevance of the transaction value.  
All of them are insulating features inherent to the amended PBS. 
 123. Similarly, the insulation of Chile's market from the transmission of international prices results 
from: 
 – the lack of transparency in the establis hment of fixed floor and ceiling values for the 
entire period from 16 December 2003 to 15 December 2014; 
  – the lack of transparency in the estab lishment of the floor and ceiling values on the 
basis of fixed coefficients from 2007 onwards;  
 
 – the lack of transparency in the way in which the factor of 0,985 was determined;  
  – the lack of transparency in the re ference prices sources and selection process –
involving, inter alia , the selection of only two predetermined markets and the 
qualities of concern;  
 
 – the lack of transparency in the establishmen t of a factor of 1,56 in order to calculate 
the duties and rebates applicable to wheat flour; 
  – the lack of transparency and predictabilit y in the existence of a formula that causes 
import duties to vary automatically and continuously;  
 
 – the lack of predictability in the level of such duties;    – the lack of predictability in the freque ncy and the extent to which those duties 
fluctuate. 
 
All of them are features inherent to the amende d PBS that create intransparent and unpredictable 
market access conditions.  124. Therefore, this Panel should find that th e amended PBS violates Article 4.2 of the Agreement 
on Agriculture  also because the particular configurati on and interaction of all these amended PBS 
features create intransparent and unpredictable ma rket access conditions and have the effect of 
disconnecting Chile's market from international pri ce developments. Thus, the amended PBS insulates 
Chile's market from the transmission of internationa l prices, and prevents enhanced market access for 
imports of wheat and wheat flour. 
125. Chile should have dismantled its  PBS applied to wheat and wheat flour as Chile did with 
respect to edible vegetable oils. The explicit wording of Article 4.2 of the Agreement on Agriculture 
mandates that Members "… shall not maintain … measures of the kind which have been required to 
be converted into ordinary customs duties …".
128 
126. Thus, according to Article 4.2 of the Agreement on Agriculture , Chile could not maintain its 
PBS after a WTO inconsistency ruling. As the Appe llate Body established "… Article 4.2 was drafted 
in the present perfect tense to ensure that measures that were required to be converted as a result of 
                                                      
128 Emphasis added.  WT/DS207/RW 
 Page D-25 
 
 
  the Uruguay Round—but were not conve rted—could not be maintained, by virtue of that Article 
…".129 Indeed, that interpretation is confirmed by the wording of footnote 1 to the Agreement on 
Agriculture . That footnote gives meaning to Article 4. 2 by enumerating examples of measures other 
than ordinary customs duties which, according to the Appellate Body, "… Members must not maintain, revert to, or resort to, from th e date of the entry into force of the WTO Agreement ".
130  
Moreover, the Appellate Body established that the obligation "not [to] maintain" such measures 
underscores the fact that "… Members must not continue to apply  measures covered by Article 4.2 
from the date of entry into force of the WTO Agreement ".131 
127. However, the fact that a measure prohibited by Article 4.2 of the Agreement on Agriculture  
could not be maintained was completely ignored by  Chile and it is the reason why Argentina had to 
resort to the WTO dispute settlement proceedings for the second time.  
128. The result is that Chile has evaded its multilate ral obligations maintaining a border measure 
other than an ordinary customs duty that Chile did no t even include in its List . Thus, more than three 
years and a half after the adoption of the Panel a nd Appellate Body reports by the DSB, the dispute 
remains unsolved, and Chile continues to give wheat and wheat flour an illegal protection. This result 
is especially serious when the very provision at issu e  -aimed to "achie[ving] improved market access 
conditions for imports of agricultural produc ts by permitting only the application of ordinary customs 
duties "132 requires the Member not to maintain the prohibited measure. 
129. In addition to all this, by not being and ordi nary customs duty, the amended PBS constitutes 
"other duties or charges" not recorded in the corresponding column of Chile's Schedule of 
Concessions (Nro. VII), and violates the second sen tence of Article II:1(b) of the GATT 1994. 
130. Therefore, Argentina requests the Panel to find that Chile's Price Band System, as amended 
by Law No. 19.897 and Supreme Decree No. 831/2003: 
• Is inconsistent with Article 4.2 of the Agreement on Agriculture , since it is not an 
ordinary customs duty and, in addition, it constitutes a border measure similar to a 
variable import levy and a minimum import price; 
• is inconsistent with the second sentence of  Article II:1(b) of the GATT 1994, since it 
constitutes "other duties or charges" not reco rded in the appropriate column of Chile's 
Schedule of Concessions (No. VII); 
• is in breach of Article XVI:4 of the Marrakesh Agreement Est ablishing the World 
Trade Organization  since, while it remains in for ce, Chile is not ensuring the 
conformity of its laws, regulations and ad ministrative procedures with its obligations 
under the WTO Agreements. 
131. Consequently, Argentina respectfully request s the Panel to find that Chile has not 
implemented the recommendations and rulings of the DSB and continues to infringe its obligations 
under the WTO. 
Thank you. 
                                                      
129 Chile – Price Band System , Report of the Appellate Body, para. 207. 
130 Chile – Price Band System , Report of the Appellate Body, para. 209. 
131 Chile – Price Band System , Report of the Appellate Body, para. 212. (Underlining added). 
132 Chile – Price Band System , Report of the Appellate Body, para. 234. (Emphasis added). WT/DS207/RW 
Page D-26  
 
  ANNEX D-2 
 
CLOSING STATEMENT BY ARGENTINA  
(2 AUGUST 2006) 
  
Mr. Chairman, Members of the Panel:   1. As stated yesterday, this dispute has a very  straightforward solution:  a finding that the 
amended PBS cannot be maintained because it is not an ordinary customs duty.  
 
2. To consistently implement the DSB´s reco mmendations and rulings, Ch ile had to dismantle 
the PBS. The explicit wording of Article 4.2 of the Agreement on Agriculture  (AoA) mandates that 
Members "… shall not maintain … measures of the kind which have been required to be converted 
into ordinary customs duties …" 
 
3. However, Chile maintained the PBS arguing th at nowhere in the Appellate Body Report it is 
mandated that Chile had to eliminate it. Chile insist s in ignoring an explicit finding of the Appellate 
Body, who stated that a finding that Chile's PBS is inconsistent with Article 4.2 of the AoA means that 
the duties resulting from the application of that PB S cannot longer be levied because such PBS cannot 
longer exist.
1 
 
4. In fact, the Appellate Body found that Chile's  PBS was a measure prohibited by Article 4.2 of 
the AoA, but Chile confidently ignores that finding, continues to levy the resulting duties and 
maintains the PBS in force.   
5. Even if that explicit finding were not enoug h, the Appellate Body went on and found that if 
Chile's PBS fell within any one of the categories of  measures listed in footnote 1, it could not be 
maintained. The Appellate Body established that " A plain reading of Article 4.2 and footnote 1 makes 
clear that, if Chile's price band system falls within any one of the categories of measures listed in 
footnote 1, it is among the 'measures of the kind  which have been required to be converted into 
ordinary customs duties', and thus must not be main tained, resorted to, or reverted to, as of the date 
of entry into force of the WTO Agreement."
2 
 6. Evidently, the reading Chile made of Article 4.2 AoA and footnote 1 was not as plain as 
required. Nor it was as clear to Chile  as it was for the Appellate Body that if the PBS fell within any 
one of the categories of the measures listed in f ootnote 1, it was a measure not to be maintained. 
Indeed, contrary to the Appellate Body's explic it finding, Chile maintained  its PBS although it fell 
within one of the categories of measures listed in footnote 1.   7. Article 4.2 of the AoA explicitly provides that  "[m]embers shall not maintain … any measures 
of the kind …". Thus Chile could not maintain its  PBS after the DSB established it was inconsistent 
with the Agreement on Agriculture . The object and purpose of Article 4.2 circumscribe Chile's options 
to comply. Chile agrees to that when it states th at it may be accurate that if a measure violates 
Article 4.2 AoA the resulting duties could no longer be levied
3.   
 
                                                      
1 Chile – Price Band System, Report of the Appellate Body, paragraph 190: "[A] finding that Chile's 
price band system as such is a measure prohibited by Article 4.2 would mean that the duties resulting from the 
application of that price band system  could no longer be levied—no matter what the level of those duties may 
be. Without a price band system, there could be no price band duties." 
2 Chile – Price Band System, Report of the Appellate Body, para. 221. 
3 Rebuttal by Chile, para. 9.  WT/DS207/RW 
 Page D-27 
 
 
  8. The Appellate Body stated that: "… the object and purpose of Article 4 … is to achieve 
improved market access conditions for imports of agricultural products by permitting only the 
application of ordinary customs duties ".4  Furthermore, the Appellate Body said "… all that is 
required is that 'ordinary customs duties' be expressed in the form of 'ad valorem or specific rates' "5. 
The legislation enforcing the amended PBS show s that this measure is not expressed in the form  of 
"ad valorem  or specific rates".  There is no ad valorem or specific rate expressed in those measures. 
The amended PBS is a complex "mechanism"6 that, as a border measure, has no resemblance with an 
ordinary customs duty.  9. If this was not clear enough, the Appellate Body also stated that "[o]rdinary customs 
duties…are subject to discrete changes in applied tar iff rates that occur independently, and unrelated 
to such an underlying scheme or formula."
7  It is undisputed that the amended PBS contains a 
formula, that is, the underlying formula to calcula te the specific duties for wheat and wheat flour.8   
 10. The possibility of the resulting  duties taking the form of ad-valorem  or specific duties is 
meaningless regarding of whether the underlying measure  is consistent. In this respect, the Appellate 
Body established that "… the fact that the duties that result from the application of Chile's PBS take 
the same form as "ordinary customs duties " does not imply that the underlying measure is consistent 
with Article 4.2 of the Agreement on Agriculture ".
9 
 11. Regarding Argentina's claim about the ame nded PBS inconsistency with the second sentence 
of Article II:(1)(b) of GATT 1994, Ch ile has recurred to a last minute resort, cl aiming that Argentina 
has not made a prima facie case under DSU Article 3.8 w ith respect to its claim.
10  Argentina is 
surprised by this argument.   12. In the case US – Wool Shirts and Blouses , the Appellate Body stated that: "… the burden of 
proof rests upon the party, whether complaining or defending, who asserts the affirmative of a 
particular claim or defence.  If that party adduces evidence sufficient  to raise a presumption that what 
is claimed is true, the burden then shifts to the other party, who will fail  unless it adduces sufficient 
evidence to rebut the presumption".
11 
 13. Argentina submitted ample evidence to make a prima facie  case.  First, regarding the 
violation of the second sentence of Article II:1(b) of GATT 1994 as a result of an inconsistency with 
Article 4.2, Chile has persistently stated that the term "ordinary customs duti es" has the same meaning 
in Article 4.2 of the AoA as it has in Article II:1(b) of GATT 1994.
12 Argentina has dedicated large 
parts of its submissions and oral statement, in cluding 36 Exhibits, to demonstrate why the amended 
PBS is inconsistent with Article 4.2 and therefore is a measure other than an ordinary customs duty. 
Argentina wonders if for Chile that is not "sufficient" to make a prima facie  case. So, given that 
Argentina submitted sufficient evidence as to make a prima facie  case regarding the Article 4.2, and 
that Chile agreed that the "ordinar y customs duties" of Article 4.2 ar e the "ordinary customs duties" of 
                                                      
4 Chile – Price Band System,  Report of the Appellate Body, para. 234. 
5 Chile – Price Band System,  Report of the Appellate Body, para. 277. 
6 In its Oral Statement Chile referred to its PBS as a "mechanism", para. 2. 
7 Chile – Price Band System,  Report of the Appellate Body, para. 233. 
8 Law 19.897, Art 1 (ARG-1), and Decree 831/2003, Art.14 (ARG-2). 
9 Chile – Price Band System,  Report of the Appellate Body, para.  279. 
10 Oral Statement by Chile, para. 14. 
11 WT/DS33/AB/R, WT/DS33/AB/R/Corr.1, page 16. (Emphasis added; footnote omitted) 
12 See Panel Report, para. 4.84 "Chile considers that the term "ordinary customs duties" has the same 
meaning in Article 4.2 of the Agreement on Agriculture as it has in Article II:1(b) of the GATT"; para. 4.85: 
"Chile points out that all parties to the dispute agree that "ordinary customs duties" has the same meaning in Article 4.2 and its footnote as in Article II:1(b) of  the GATT 1994." In fact, th e Panel agreed with Chile 
(para. 7.49) and its finding was not reversed by the Appellate Body. WT/DS207/RW 
Page D-28  
 
  Article II:1(b), it therefore results that sufficient evidence has been provided for the Article II:1(b) 
claim, and a prima facie case has been made.   14. Indeed, it is evident that if, under these circ umstances, the Panel finds the amended PBS not 
to be an ordinary customs duty, then it is an "oth er duties or charges" that, by not being recorded in 
Chile's list (VII) – a fact that remains uncontested- is a measure inconsistent with the second sentence 
of Article II.1(b) of GATT 1994.   15. Second, Argentina also stated that the sec ond sentence of Article II:1(b) of GATT 1994 claim 
stands by its own.
13 In fact, Argentina has given th e arguments to support this claim14, the main one 
being the obvious: that " all that is required for a measure to be an ordinary customs duty is that it '… 
be expressed in the form of " ad valorem or specific rates".15 Therefore it constitutes "other duties or 
charges" within the meaning of Article II:1(b) of GATT 1994.  16. The fact is that, to put it in the Appellate Body words, Argentina has adduced evidence more 
than sufficient to raise a presumption that what is claimed is true and the burden was shifted to Chile 
who has failed to adduce sufficient evidence to rebut  the presumption. In fact, Chile has never argued 
that the amended PBS is expressed in the form  of an ad valorem or specific duty rate. 
 17. Chile did not comply. In addition to not being an ordinary customs duty the PBS, continues to 
insulate Chile's market from fluctuations in intern ational prices in a way that is inconsistent with 
Article 4.2 of the AoA. Chile has "cosmetically" amended the old PBS while maintaining its distortive 
effects and fully preserving its lack of  transparency and predictability.  
 18. If Chile gave some meaning to Article 4.2 of the AoA and Article II:(1)(b) of GATT 1994, 
Chile could not have made a statement affirming th at the only obligation the WTO imposes to Chile is 
not establishing customs duties in excess of those set in its schedule of concessions.
16  That is simply 
incorrect and should be undisputed at this stage.   Nevertheless, yesterday Chile went further and 
stated: "… any WTO Member can do what it wants to up to the level of its binding commitments".17  
 19. Chile has more obligations than merely "d oing what it wants". Chile is bound by all the 
covered agreements and especi ally by Article 4.2 of the Agreement on Agriculture . However, it is 
evident that in the implementation of the recommenda tions and rulings in this dispute Chile has done 
what it wanted: it has maintained a border measure ot her than an ordinary customs duty with all the 
distortive, intransparent and unpredictable features inherent to measure similar to a minimum import 
price or a variable import levy as  Argentina has lengthily described along its submissions and oral 
statement. 
 
20. With respect the so called "variability" com ponent, Chile has claimed to have abolished it 
because now "… the duty is fixed by a legal directive in  the form of a decree issued by the Ministry of 
Finance …".  The automatic variability still remains.  Chile has no discretion not to impose the duties 
if the reference price falls below the band floor
18 and has not argued otherwise. In fact, the exporter 
can count with the guarantee that it will face a different duty every two months. In this respect, as the 
                                                      
13 Oral Statement by Argentina, para. 118. 
14 Oral Statement by Argentina, para. 111. 
15 Chile – Price Band System,  Report of the Appellate Body, para.  277. 
16 Rebuttal by Chile, para. 65 in fine : "… All it is obliged to do (a Member of the WTO) is to honour its 
commitments, that is to say, not to exceed the bound tariff level". 
17 Oral Statement by Chile, para. 45. 
18 First Written Submission by Argentina, paras. 263 and 264.  WT/DS207/RW 
 Page D-29 
 
 
  US asserted this morning, there is no basis to discer n a distinction between a variation occurring every 
two months rather than one week.19 
 21. As regards to the similarity between the amended PBS and a minimum import price, 
Argentina would like to stress that it has mathemati cally demonstrated that the amended PBS provides 
an end to any transmission when the entry price appro aches the band floor. Due to the formula, the 
PBS will not allow any transmission of international prices in the case that the entry price falls below 
the floor price20. That was the "internal political agreement" Chile referred to yesterday.21 
 22. Evidently, Article 4.2 of the Agreement on Agriculture  is meaningless for Chile. If that were 
not the case Chile could not have stated that: "… no violation of Article 4.2 can exist on the sole basis 
that a measure does not allow the transmission of in ternational prices". According to Chile, insulation 
from the transmission of international prices is not a problem.  However, for the Appellate Body it is more than a problem: it is a breach of Article 4.2. Chile has went further and stated that "… it is difficult to argue that the requirements of transparen cy and predictability are part of the 'spirit' or 
'requirements' derived from Article 4 of the Agreement on Agreement on Agriculture"
22 because "[it] 
does not contain the words transparency and predictabilit y".  It is unworthy to repeat again the lack of 
basis of these assertions and Argentina would just lim it itself to kindly request the Panel to review its 
submissions and oral statements. Argentina is cer tain that the Appellate Body would be, at least, 
surprised about these statements, especially taking into account its Report in this dispute .  
23. It was the Chilean Executive itself who stated  that "… Through this bill (Law 19.897) the 
Government has corrected … formal aspects cha llenged [by the WTO] while fully protecting the 
spirit of the bands …"
23. Argentina does not see what can be more explicit than this statement from 
the Government of Chile itself. Given the clarity of Article 4.2 of the AoA and the second sentence of 
Article II:(1)(b) of GATT 1994, this should be enough for the Panel to find that Chile did not comply 
with the recommendations and rulings of the DSB. 
 24. The Appellate Body has stated that " interpretation must give meaning and effect to all the 
terms of a treaty. An interpreter is not free to ad opt a reading that  would result in reducing whole 
clauses or paragraphs of a treaty to redundancy or inutility ."
24 This Panel has now the opportunity to 
enforce a two main provisions of the WTO Agreemen ts.  In fact, Article II:(1)(b) of GATT 1994 and 
Article 4.2 AoA would have no meaning if Chile could impl ement the recommendations and rulings of 
the DSB by merely "cosmetically" modifying its PB S while, at the same time maintaining a border 
measure other than an ordinary customs duty, pr eserving its insulating and distorting effects and its 
lack of transparency and predictability.  This is the precedent Chile seeks to est ablish in this dispute. 
This is how Chile's violation con tinues to nullify and impair Argen tina's benefits accruing to it under 
the WTO Agreements.  
 Thank you  
                                                     
 
19 Oral Statement by the US, para. 13. 
20 First Written Submission by Argentina, C.I.2.1 
21 Oral Statement by Chile, para. 25. 
22 Rebuttal by Chile, para 30. 
23 First Written Submission by Argentina, footnote 75. 
24 United States – Standards for Reformulated and Conventional Gasoline , Appellate Body Report, 
WT/DS2/AB/R, adopted 20 May 1996, at 23. WT/DS207/RW 
Page D-30  
 
  ANNEX D-3 
 
OPENING STATEMENT BY CHILE 
(1 AUGUST 2006) 
  
I. INTRODUCTION 
1. Thank you Mr. Chairman and members of the Panel for giving Chile a new opportunity to 
express its views on this important and long dispute.   One should first ask why we are meeting today 
on a National holiday and in the middle of the Europ ean Summer.  It is not Chile who requested this 
meeting nor these procedures. We complied with the rulings and recommendations of the DSB 
adopting important legislative changes concerning the way specific duties are established for wheat 
and wheat flour. 
2. It is Argentina who, based on a wrong readi ng and interpretation of the Appellate Body's 
conclusions, decided to question those changes.  Changes that Argentina seems not to understand.  
We have tried to explain in detail how the system adopted in 2003 operates and we are going to do it 
today once again with the help of graphs so no doubt can remain on how it works, and on how different it is from the PBS.  These are two comp letely different mechanisms, even though some 
names remain the same. 
3. Argentina throughout this process
1 and in bilateral discussions has been demanding Chile to 
eliminate the PBS because in its opinion it is the only way to comply and also because allegedly the 
AB so established it.  Even though precedents in this house are clear, "the implementing Member has 
a measure of discretion in selecting the means of implementation that it deems most appropriate"2, 
nothing in the AB report obliges or even recommends Chile to implement in one way or another.   
4. Argentina's argument is based on the conclusion of  the AB that no duties can be levied from 
the application of a measure inconsistent with Ar ticle 4.2 of the Agreement on Agriculture. The same 
is true for duties or charges resulting from measures that violate other provisions of that Agreement or 
any other Covered Agreement for that sake.  But if a measure is not inconsistent with the WTO, duties 
can be levied.  And Argentina hasn't been able to  prove that the current system based on Law 19.897 
and its Regulations is inc onsistent with Article 4.2 or any othe r provision.  Furthermore, Chile has 
demonstrated that the system is consistent with su ch provision, so it can levy the specific duties up to 
the bound level in its Schedule. 
5. During this presentation we will first address Argentina's claims that are outside the terms of 
reference of this Panel.  Then, we will focus on  the correct reading and interpretation of the AB 
findings and conclusions and how the changes we re made to the PBS taking into account those 
findings and conclusions, resulting in full and timely implementation of the rulings and 
recommendations of the DSB.  Through graphs we will show how the PBS worked and how the 
current system operates.  This will certainly help  to eliminate once and forever the confusion that 
Argentina still seems to have and will clearly de monstrate that the regime applicable since 2003 
doesn't have certain  characteristics and features of the PBS questioned by the AB and consequently 
doesn't produce the effects common to the measures enumerated in Article 4.2 of the Agriculture 
Agreement. We will finish this presentation dem onstrating why Law 19.897 a nd its Regulations are 
not a variable import duty or similar to it nor a minimum import price or similar to it.  
                                                      
1 For example, paragraph 317 of the Rebuttal from Argentina. 
2 EC – Chicken Cuts (Article 21.3) , Award of the Arbitrator (WT/DS269/13 and WT/DS286/15), 
paragraph 49.  WT/DS207/RW 
 Page D-31 
 
 
  II. SOME OF ARGENTINA'S CLAIMS ARE OUTSIDE THE TERMS OF REFERENCE 
OF THIS PANEL 
6. Using semantics Argentina tries to argue that its claims regarding the factor 1.56 used to 
determine the duties or rebates applicable to whea t flour are properly within this Panel.  First, 
Argentina has acknowledged that it never raised this point during the original proceeding.  Secondly, 
by trying to make a distinction between claims a nd arguments Argentina tries to avoid the application 
of well known precedents, even th ough throughout its submission Ar gentina challenges the factor 
using different arguments.  The refe rence in paragraph 261 of Argentina' s rebuttal to what the AB said 
in the EC – Bed Linen (Article 21.5 – India)  is out of context.  The AB is not opening the door to the 
possibility to challenge the implementing measure on the basis of new arguments or claims that could 
have been raised in the original  proceedings.  Argentina's reading would lead to the absurd that a 
measure or an aspect of a measure determined to be  consistent could be ch allenged in a 21.5 Panel 
based on a different argument.   
7. Applying the approach in Korea – Dairy Products we showed the difference between 
Argentina's claim regarding how "The factor of 1. 56 ... insulates the entry pr ice of wheat flour from 
international price developments", from its ar guments "the specific duties on wheat flour are 
calculated on the basis of those applied to another product3 and the way in which that factor was 
established is not transparent".4  Clearly we are in front of an independent claim that Argentina did 
not make in the original dispute although it coul d have done so, since Ar gentina itself acknowledges 
that that factor had already been in effect for more than ten years. 
8. In its presentations Argentina has recognized that  the price of wheat flour is higher than the 
price of wheat5 and this price relationship could be based on a technical production ratio  between both 
products. Moreover, in Argentina's opinion, not only "this relationship is valid at international level"6 
but it should be approximately 1.3 ("that is, the pr ice of wheat flour is approximately 30 per cent 
higher than that of wheat"). In other words, a mathematical formula applied to one product to 
determine the price of another. 
9. But in its Rebuttal, Argentina adds a new elem ent never mentioned before, that is that the 
factor is applied on a completely different basis. Consequently, it is a modified aspect of the measure 
taken to comply. Curious that during the original proceeding Argentina never questioned the basis for 
the application of the factor in circumstances that that basis was the PBS itself. If it would have done 
so, and Argentina would have prevailed, Chile wo uld have been under the obligation to implement 
those rulings, but certainly that w asn't the case. The factor for determining the duties and rebates for 
wheat flour was never found in violation of Article  4.2 so no obligation to comply was established. 
Only now Argentina finds that the basis for the application of the factor is a relevant element that 
deserves a challenge.  We have shown that the pr emises of this claim are not well founded and Chile 
should not be burdened with the obligation to address a claim that clearly Argentina could have made 
in the original Panel.    
10. If the Panel decides that this new claim is within  its term of reference, Chile has demonstrated 
with numbers the reasons to use what Argentina calls an "international valid technical production 
ratio".   
11. Let me turn to the second sentence of Article II:1(b) of GATT 1994.  
                                                      
3 Paragraph 228 of the Rebuttal. 
4 Paragraph 229 of the Rebuttal. 
5 For example, paragraph 171 of Ar gentina's First Written Submission. 
6 Paragraph 231 of the Rebuttal. WT/DS207/RW 
Page D-32  
 
  12. Needless to say that this was an important issue during the Appeal.  As you may remember 
during the original Panel, Argentina claimed that th e PBS was inconsistent with Article 4.2 of the Ag 
Agreement and with Article II:1(b). of GATT of 1994.  After concluding that the PBS was 
inconsistent with 4.2., hence it was one of the measu res that had to be converted into an ordinary 
customs duty, the challenge under th e first sentence of Article II:1(b) . (that Chile exceeded the bound 
rate) was essentially a contradicti on.  From a logical point of view, it could have been correct your 
conclusion that the PBS was inconsistent with th e second sentence of that provision.  But from the 
point of view of Chile's due process rights that conclu sion could not sustain, so the AB reversed it.   
13. For similar reasons, Argentina cannot bring back as its own new claim your original 
conclusion.  It could have raised it during the or iginal proceeding but wrongly it focused on the first 
sentence of Article II:1(b). 
14. And even if the Panel considers that it could rai se in this late stage of this dispute such an 
important claim, Argentina hasn't shown in whic h way the current system in force since 2003 is 
inconsistent with the second sentence of Article II:1(b). of GATT 1994.  The mere claim that a 
violation of Article 4.2 of the Agreement on Agriculture automatically involves a violation of the 
second sentence of II.1.b is not enough.  Automatic violations of WTO provisions do not exist.  
Argentina has to fulfill its burden of proof under Article 3.8 of the DSU establishing a prima facie  
presumption.  And it hasn't done so! 
III. CORRECT UNDERSTANDING OF THE AB FINDINGS AND CONCLUSIONS 
15. Let me start by recalling what the Appellate  Body stated in the 21.5 proceedings in Softwood 
Lumber IV .  The determination of the scope of "mea sures taken to comply" should include the 
examination of the recommendations and rulings in the original report or reports adopted by the DSB.  
In other words, this Article 21.5 Panel must nece ssarily study first the scope of the recommendations 
and rulings of the DSB before analysing the system in  force since 2003.  Only in that way, it can be 
clarified what was Chile obliged to implement and on ly in that way the chan ges introduced by virtue 
of Law 19.897 and its Regulations can be fully understood. 
16. Broad interpretations of the findings and conclu sions of the original Panel and AB reports 
would result in imposing to the Member obligations to implement that didn't exist, thereby impairing 
its due process rights.  In its written submissi ons Argentina has given a broad and erroneous 
interpretation of the conclusions of the AB, claimi ng inconsistencies where the AB didn't find one, or 
reading requirements that the AB never put in its re port.  We have no time to go through all of them 
but let me give you one example.  
17. Regarding the liberalization process introduced to  the system by virtue of a gradual reduction 
of the values of the parameters floor and ceiling, Argentina claims
7 that Chile hasn't explained how 
the reduction process through a factor was calculated.  First, not only the AB could have never questioned the reduction process but most important, it is one aspect of the measure taken to comply that Chile freely and unilaterally decided to introduc e to gradually reduce the border protection of the 
products concerned and not because it was pa rt of the implementation requirements. 
18. Examples like this are many but Chile shall con centrate on what the AB said and not on what 
Argentina says the AB said. 
                                                     
 
7 Paragraph 199 of Argentina's First Written Submission.  WT/DS207/RW 
 Page D-33 
 
 
  IV. THE CURRENT SYSTEM 
19. On the basis of the DSB's recommendations and rulings Chile brought its measure into 
conformity with its WTO obligations through the enactment of Law 19.897 which is in force since 
December 16, 2003. This Law is supplemented by Supreme Decree No. 831 of the Chilean Ministry 
of Finance  
20. The Law applies to imports of wheat and wheat flour8 and provides for, by means of a 
Chilean Minister of Finance decree, the possibility of: 
(a) establishing the application of specific duties in US dollars per tariff unit, or 
(b) establishing rebates on the amounts payable as ad valorem  duties established in the 
Customs Tariff.   
(a) Determination of specific duties 
21. The Chilean Ministry of Finance decree establishes a specific duty consisting of an amount in 
USD per tariff unit (tonne) payable when the refere nce price established is less than USD128 per 
tonne.   
22. The specific duty plus the ad valorem  duty must not exceed the tariff rate bound by Chile 
under the World Trade Organization (31.5%). Each  import transaction shall be considered 
individually using the c.i.f. value of the goods concerned in the transaction in question as a basis for calculation.  
(b) Determination of rebates on amounts payable as ad valorem  duties 
23. The decree determines a reba te on the amount payable as ad valorem  duties established in the 
Customs Tariff when the reference price is over US$148 per tonne. 
24. The rebate on the amount payable as ad valorem  duties established for each import 
transaction may not exceed the amount corresponding to the ad valorem  duty calculated on the c.i.f. 
unit value of the goods. 
(c) Determination of the 'floor' and 'ce iling' values established under the Law 
25. Facing the need to adjust its legislation in accordance to the WTO ob ligations, Chile reached 
an internal political agreement which defined a framewo rk to afford some level of protection to this 
productive private sector up to 2014, which is est ablished by Law with these parameters: US$ 128 and 
US$ 148. These values will remain unchanged until the end of 2007. From thereon and until 2014, 
these amounts will be reduced on an annual basis.  
(d) Reference price  
26. The reference price for determining specific duti es (or rebates) is expressed as a f.o.b. value 
and consists of the average of the daily interna tional wheat prices recorded  in the markets most 
relevant to Chile
9 which is explained later on. 
                                                      
8 Law No. 19.897 also applies to imports of sugar, but the latter is not material to this dispute. 
9 The Regulations of the Law also establish the markets most relevant to Chile. WT/DS207/RW 
Page D-34  
 
  27. The Regulations
10 supplement those provisions of the Law, thereby providing full clarity to 
the determination of the specific duty (or tariff rebates) established in each Chilean Minister of Finance decree. It reiterates that all values applied by Law are to be expressed on a f.o.b. basis in US 
dollars. The Regulations also set out the period of  validity of each decree establishing a specific duty 
(or rebates) and the most relevant markets for wheat in Chile.  
V. CHILE HAS FULLY COMPLIED WI TH THE AB'S RULINGS AND 
RECOMMENDATIONS  
28. Pursuant to the provisions of Article 21.5 of th e DSU this Panel has to analyse the scope and 
conformity of the Chilean measure in light of the recommendations and rulings of the DSB which must be treated as a final  resolution  to a dispute between the parties.  
29. In view of the foregoing, Chile will review the conclusions of the Appellate Body as set out in 
its Report and not as construed by Argentina, and to  compare them with the changes introduced in 
Law 19.897 and its Regulations, thereb y demonstrating that Chile has complied, both in form and in 
substance, with these conclusions. 
30. The AB interpreted "variable import levies", conclu ding that the mere fact that an import duty 
can be varied cannot, alone, bring that duty within the category of "variable import levies" for 
purposes of footnote 1 of Article 4.2.
11 There is something more and that is the fact that the 
measure  itself—as a mechanism—must impose the variability of the duties.12  The presence of a 
formula causing automatic and continuous variability of duties is a necessary , but by no means a 
sufficient , condition for a particular measure to be a "variable import levy".13  In other words, an 
ordinary customs duty may also vary periodically, provided that the changed rates remain below  the 
tariff rates bound in the Member's Schedule.14  
31. Law 19.897 abolished the variability component . Now the specific duty is fixed by legal 
directive in the form of a decr ee issued by the Ministry of Finance and remains unchanged for two 
months, during which the duty applies on all import transactions, without the slightest variation and 
regardless of the amount of the transaction, until it is changed or cancelled by a more recent 
administrative act. 
32. Since the variability and automaticity is not suffici ent, the AB stated that an additional feature 
of variable levies was the lack of transparency and predictability  in the level of duties that will result 
from such measures.  
33. Why this was important for the AB?  Because it contributes to distorting the prices of imports 
by impeding the transmission of international prices to the domestic market.  
34. Here is worth noting that contrary to what Arge ntina keeps claiming, the isolation of domestic 
prices is not a characteristic per se  of variable import levies but the effect of the lack of transparency 
and predictability.  Hence no viola tion of Article 4.2 can exist on the sole basis that a measure doesn't 
allow the transmission of international prices to the domestic market.   
35. Then the Appellate Body analysed 'minimum im port prices' stating that they are not very 
different from variable levies, except that their mo de of operation is less complicated, but in both 
                                                      
10 Supreme Decree No. 831 of the Chilean Ministry of Finance. 
11 Paragraph 232 of the AB Report. 
12 Paragraph 233 of the AB Report. 
13 Paragraph 234 of the AB Report. 
14 Report of the Appellate Body in Argentina – Textiles and Apparel , footnote 56, para. 46.  WT/DS207/RW 
 Page D-35 
 
 
  cases the result is the same: to sust ain a domestic price.  In this case, variability is the difference 
between the governmentally determined threshold and the actual transaction value, which will differ 
from one transaction to another and will hence change the duty without any legislative or 
administrative action. 
36. With these conclusions in mind the AB analysed how the PBS is similar to a variable import 
levy and a minimum import price. During the appeal Argentina picked your finding that considerable 
lack of transparency and unpredictability  in the PBS and emphasized that the combination of a lack of 
transparency and a lack of predictability were the f eatures of the PBS that, most of all, make it similar 
to variable import levies.   
37. The AB disregarded to some extent the emphasi s of the Panel on the fact that whether the 
PBS was related to domestic target prices or domestic market prices.  For the AB there are other 
factors relevant to the assessment of the PBS.  
38. First, the fact that the highest 25 per cent as well as the lowest 25 per cent of the world prices 
from the past five years were discarded in selecting the highest and lowest f.o.b. prices for the determination of the annual price bands.
15  With the entry into force of Law No. 19.897, Chile 
abolished this calculation formul a introducing fixed parameters.  
39. Second, the AB places considerable importance  on the non-transparent and unpredictable way 
in which the "highest and lowest f.o.b. prices" selected were converted to a c.i.f. basis by adding 
"import costs".  Pursuant to the Law, all values ar e set as f.o.b., meaning that it is no longer necessary 
to add "import costs", making the system easier and fully transparent. 
40. Thirdly, the AB analysed how the reference price was determined, observing similar 
shortcomings. On one hand, the price was establis hed in a manner that was neither transparent nor 
predictable. Specifically, that nowhere was specified  how the international "markets of concern" and 
the "qualities of concern" were going to be selected.16 Thus, it was by no any means that the weekly 
reference price was representative of the current worl d market price. Additionally, since the reference 
price was not adjusted for import costs, as were th e price bands, it was likely to inflate the amount of 
specific duties applied under the PBS.  As we have e xplained previously, this last point is based on 
the failure of Chile to correctly explain how the system operated. 
41. Currently, the Regulations specify the calcula tion mechanism, the markets of concern and 
their qualities to be considered. Besides that , all prices are taken in a f.o.b. basis. 
42. On the other hand, the AB questioned the fact the reference price was established on a weekly 
basis. So even if the first one of the parameters  (the bands) did not distort —if not disconnect—that 
transmission, because it was determined on a weekly basis.17  This is the crux of the AB analysis .  The 
weekly and unpredictable determination of a refere nce price with no link to international markets 
resulted not only in specific duties that constantly  (and automatically) vary but with the specific 
objective to "sustain" a certain target price.  Mu ch to the contrary of Argentina's wishes, the 
sustainability of a certain target price is the ma in objective of measures similar to variable import 
levies and minimum import prices.  And that is why the PBS was condemned.   
43. Summing up, Argentina is wrong when it thinks that what it considers a lack of 
transparency/predictability and isolation of the domes tic market test can be applied to any feature of 
any measure that it doesn't like.  
                                                      
15 Paragraph 246 of the AB Report. 
16 Paragraph 246 of the AB Report. 
17 Paragraph 251 of the AB Report. WT/DS207/RW 
Page D-36  
 
  44. Having clarified how the original Panel and AB have to read, let me introduce our colleague 
who is going to show how the changes introduced  by Chile in 2003 apply in practice.    
Power Point Presentation  
 
45. This morning Argentina told us that they do  not understand how Chile can argue that the 
amended PBS does not disconnect Chile's market  from international price developments.
18  We will 
try once again to make Argentina un derstand this important element. 
46. Through this power point presentation we will hi ghlight the changes introduced in 2003 and 
how the current system operates.  But before that  let me describe the operation of the PBS and the 
main steps for the application of a specific duty.   
(Slide 1)  
 
47. This chart shows domestic demand and offer curves for wheat.  International prices are far 
below the domestic equilibrium given by the inters ection of those curves, indicating that Chile is 
clearly an importing country.   
48. As any imported good, wh eat is taxed with an ad valorem duty of six percent.  In addition, the 
PBS provided for the possibility of applying specifi c duties in US dollars per unit when the import 
price (and we mean by import price the cost of the imported product at domestic level) was lower than 
a previously fixed target price.  
49. For establishing the target price, once a year mont hly data of international prices from the five 
preceding years was collected. These f.o.b. prices were  ranked from lowest to highest and adjusted 
using a price deflator, eliminating the extremes ( 25% each). The remaining values were used as the 
"base" to calculate the minimum import cost (" the floor") as well the maximum import cost ("the 
ceiling").  
50. All normal costs associated with import operation, such as ad valorem  duties, transport costs, 
insurance and customs charges were added to the floor price.  The objective of this exercise was 
precisely to express the floor price in terms of the cost of imports at domestic level.  
51. Then, the PBS needed a value to compare with th e floor. The international price used for this 
comparison was the lowest weekly average price availa ble, no matter the market of origin or type of 
wheat.  This average was the reference price and was informed once a week based on data available 
the week before.  
52. For the calculation of a specific duty the refere nce price was expressed at domestic level as 
well; that is, adding the same import costs used for the floor and ceiling prices. 
53. The specific duty was calculated as the differen ce between floor and reference prices, both 
expressed at domestic levels.  
54. As the reference price was informed every week  the determination of a specific duty, rebate, 
or none of them, was set 52 times a year. Furtherm ore there were no laws or regulations describing 
the procedures for calculating specific duties or reba tes. As a result the AB concluded that the PBS 
worked as a measure similar to a Import Variable Levy or a Minimum Import Price, i.e. through the support of a domestic target price. 
                                                     
 
18 Paragraph 69 of Argentina's Oral Statement.  WT/DS207/RW 
 Page D-37 
 
 
  (Slide 2) 
 
55. Law 19.897 and its Regulations provide for the application of a specific duty on a seasonal 
basis and depending on prices. A sp ecific duty applies when the intern ational price is below a fixed 
value. Both prices being expressed in f.o.b. terms.   
56. One of the parameters of the current system is  a fixed f.o.b. value: the "floor price". The 
objective of this value is just to allow the calcula tion of a specific duty under certain circumstances.  
So there is no more a domestic target price or a minimum price to support . Floor and ceiling 
prices were fixed at US$128 and US$148 per ton r espectively. These prices will remain unchanged 
until the end of 2007 and from there until 2014 they w ill be reduced by 1.5% per year.  The official 
values are set in the Law. 
(Slide 3) 
 
57. The other parameter is an international price used to make the comparison with the floor 
value.  This reference price is also expressed in f.o.b. terms. 
58. Reference prices come from the relevant market s for wheat: United States and Argentina.   
59. Let me divert a couple of minutes from the presentation and address some points raised by 
Argentina this morning. 
• The relevant markets used to establish th e reference price are not only the ones 
relevant to Chile but relevant for interna tional trade in wheat.  Even Argentina seems 
to recognize this in par. 53 of its pr esentation when it signals out Chicago and 
Kansas, exactly one of the prices used. 
 
• In its web page Argentina's Agriculture, Livestock, Fish and Food Secretary and 
under the section "Monthly Prices" publishes two international prices for wheat:  Fob 
Golfo  and Fob Puertos Argentinos .  Annex CHL-12 
 
• In paragraph 54 of its oral presentation Ar gentina through Annex ARG 31, tries to 
demonstrate that Canada was a relevant market because it has been the second import 
market for Chile.  First, the relevant market s are not just the relevant ones for Chile in 
terms of the origin of its imports but "relevant for wheat".19  Second, if the former 
would have been the case, Canada was not a relevant market during 2003 nor 2002, 
when the Regulations were enacted.  Anne x CHL-13   By the way as you can see the 
source of information is the same as ARG 31 and the statement that Argentina 
reproduced in paragraph 54. 
 
• Without prejudging intentions, we cannot accept the assertion of Argentina in 
paragraph 58 and 59 of its statement that Chile is "constructing" a price that is 
"intransparent".  Annex ARG 32 s hows a price series under the name " Precios FOB 
oficiales " (on a daily basis) printed "some days ago".  We have printed a couple of 
minutes ago , from the same source, the same series of prices but on a monthly basis, 
where the name " FOB Puertos Argent " (we assume it is Argentina) is used.  Another 
series printed from the same source under the name " Precios FOB oficiales " but on a 
monthly basis will show that we are talki ng about the same prices.  Annex CHL-14.  
When Chile enacted the Regulations in 2003 the daily series used the same name as 
in the monthly series.  Now seems to be some difference in terminology but clearly, 
                                                      
19 Article 8 of Supreme Decree 821. WT/DS207/RW 
Page D-38  
 
  the official Argentinean source still collects, publishes and uses " Trigo Pan Puerto 
Argentino ". 
 
• The AB questioned the PBS on the issue that the relevant market was not established 
in any regulation and the authority could use "any foreign market of concern".
20  
What Argentina suggested this morning is  that Chile should change the relevant 
market to determine the reference price accord ing to its trade patterns.  This not only 
would render the determination of the reference price non transparent and non 
predictable but very difficult to do because the use of a relevant markets doesn't 
preclude imports coming from other markets.  So Annex ARG 34 is not a surprise in that sense.  
 
60. As explained in the legislation, the reference price is an average of the daily international 
prices of " Trigo Pan f.o.b. Puerto Argentino " on one half of the 12 month period and " Soft Red Winter 
N° 2 FOB Gulf of Mexico " for the rest of the period.  The pri ce used is the officially published by 
Agriculture, Livestock, Fish and Food Secret ary of Argentina and the Chicago Board of 
Trade/Reuters, respectively.  
(Slide 4) 
 
61. Under the current regime the amount of specifi c duty equals the differe nce between the floor 
price and the reference price, multiplied by a factor of one plus the general ad valorem  duty (6%).  
62. In the case of wheat flour the applicable specifi c duty shall be that determined for wheat, 
multiplied by a factor of 1.56. 
63. Specific duties (or rebates) are applied by d ecree published six times a year in the periods 
established in the regulation.  The duties, rebate s or none of them, do not vary throughout the two 
month period of validity of the decree, that is: th e duty is the same irrespective of the transaction 
price, a governmentally determined  price or world price trends. 
64. The specific duty plus the ad valorem  duty must not exceed Chile's tariff bound rate (31.5%). 
65. Total tariffs levied by Chile on wheat and wheat flour behave in the same way as an ordinary 
customs duty.  This means that the price of imports in th e domestic market (import price) is the 
sum of the transaction f.o.b. value, tota l tariffs and the rest of import costs.   
(Slide 5) 
 66. The import price could result above the fixed f.o. b. value, as in this example. Or could be 
lower than the fixed f.o.b. value, depending on the transaction f.o.b. value.  
67. Although apparently Argentina doesn't like it (a nd they repeated it a couple of times this 
morning
21), duties currently are applied independently of the transaction value as is the case with any 
specific duty, thereby allowing goods to enter at any price subject to the application of a given 
specific duty.  That is to say, international prices may fall (or rise) during the application of a 
specific duty but the latter will remain the same , and therefore the entry price will necessarily 
reflect any fluctuation.  
                                                      
20 Paragraph 249 of the AB Report. 
21 For example paragraphs 26 and 56 of Argentina's Oral Presentation.  WT/DS207/RW 
 Page D-39 
 
 
  68. After 2003, the parameters floor, ceiling and reference prices ha ve the sole purpose of making 
possible the determination of the border protection th at will be applied to wheat and wheat flour in 
accordance with a pre-established schedule. 
(Slide 6) 
 69. The following graph compares the price of wh eat on the Chilean wholesale market (green 
line) with two international prices: the Trigo Pan Puerto Argentino  (blue line), and the Soft Red 
Winter Nº2  (orange line), from January 2004 to June 2 006. Also, the Floor value appears in red. 
70. The graph shows that: 
• The floor value is far below the wholesale market price, below Soft Red Winter Nº2 
price, and most of the time below the Trigo Pan Puerto Argentino  price. 
 
• Chilean wheat prices have varied. 
 
• Most of the time this variation is very similar to that of export prices of Argentine 
wheat, confirming the connection of Chilean  wheat prices to the f.o.b. price from 
Argentina. 
 
71. As we explained in our second submission it is impossible to claim a complete connection. 
Firstly, the price of wheat – and its fluctuations – on  the wholesale market is heavily influenced by the 
domestic wheat supply naturally available during the harvest months (December to March).  
Secondly, Argentina is not the only Chilean wheat supplier.  For example, in June 2006 the wholesale price falls, following the trend in Soft Red Winter Nº2  which is lower while the price in Argentina 
rises.  
(Slides 7, 8 and 9) 
 
CONCLUSIONS 
 
72. Mr. Chairman and members of the Panel thr oughout this long dispute we have always 
claimed that any WTO Member can do what it wants to up to the level of its binding commitments.  
In other words, no other Member can expect or request a tariff treatment different to the one 
consolidated in other Members' Schedule.  That is  their legitimate expectations.   That means that 
Argentina shouldn't expect from Chile a certain ta riff treatment for the products object of these 
procedures. 
73. Notwithstanding the above, the original Panel and the AB concluded that Article 4.2 prohibits 
certain type of measures that have in common the object and effect of restricting the volumes, and distorting the prices, of imports of agricultura l products, mainly through the disconnection of 
domestic prices from international price developments.
22  The particular configuration and interaction  
of all the specific features of the PBS addressed by  the AB created non transparent and unpredictable 
market access conditions insulating Chile's market  from the transmission of international prices, 
preventing enhanced market access for imports of wheat and wheat flour.   
74. Chile respected this decision and although none of the features of the PBS on its own has the 
effect of insulating our market as the AB stated , and conscious of the sovereign right of any WTO 
Member to establish the level of protection up to its bound level, it decided to radically modify the 
import regime for the products in question.   
                                                      
22 Paragraph 227 of the AB Report. WT/DS207/RW 
Page D-40  
 
  75. A central part of the Chilean trade policy lo oks for low and flat tariffs for every good, 
including agricultural products.  However, since wheat and wheat flour are sensitive products Law 
19.897 and its Regulations establish a mechanism to provide additional protection (above the 6%) 
under specific circumstances related to seasons and pr ices.  In our view the application of the bound 
level of 31.5% could mean unnecessar y over protection for producers.  
76. An example of the magnitude of this overprot ection is provided in the following chart where 
we simulated the application of an ad valorem duty equivalent to our bound rate in the period between 
January 2004 and June 2006 to the whear imported from Argentina.  This chart shows actual c.i.f 
values (white bars), the ad valorem  tariff of 6% (orange bars) and the specific duty effectively applied 
(yellow bars). The green bars represent the difference to reach a 31.5% tariff.  In other words, what 
Argentina is "saving" with the application of the system that it is challenging today.   
77. Clearly the alternative, still valid, to increase that protection to an ad valorem  duty of 31.5% 
is a scenario where Argentinean wh eat producers will be worse off.  
78. The current system allows the Executive Power to  establish six times a year duties or rebates 
or none of them (the level of protection) for a fi xed period of time based on parameters calculated on 
f.o.b. value.  During that period the specific du ties will not vary, allowing the transmission of 
international prices and trends into the Chilean ma rket.  Without mentioning that all the parameters 
and elements of the system are on legislation and hence well known by importers, producers and 
exporters including those from Argentina.  
79. Based on the arguments and evidence presented in  our submissions we respectfully request 
you to reject Argentina's claims.  First, because some of them are out of the terms of reference of this 
Panel and second, because Argentina h as not been able to establish a presumption of inconsistency of 
Law 19.897 and its Regulations with  Article 4.2 of the Agriculture Agreement or with any WTO 
provision.  On the contrary, Chile has demonstrated that the current system is not a variable import 
levy or a measure similar to it nor a minimum import price nor a measure similar to it.  
Thank you. 
  WT/DS207/RW 
 Page D-41 
 
 
  ANNEX D-4 
 
CLOSING STATEMENT BY CHILE 
(2 AUGUST 2006) 
  
1. Let me first make a couple of comments on the statements of the Third Parties this morning.  
First, we listen from some of them a good descripti on of how the current system is designed in the 
Law and its Regulations.  On that basis these Thir d Parties concluded that the current system is 
similar to the PBS and hence similar to a variable import duty or a minimum import price.  But it is 
not a comparison of names and parameters what th e Panel is requested to do but to look to the 
"de facto " operation of the system and especially its eff ects.  It is the interaction and configuration 
what matters.  As the US correctly pointed out, it is not transparency and predictability per se , but in 
the level of duties that will result from the measure. 
2. Our second point relates to the scope of these proceedings.  Chile doesn't deny that new 
measures can be challenged on new grounds and under  new provisions of the Covered Agreements.  
But that is not the case.  Factor 1,56 is a valid  ratio between wheat and wheat flour prices – as 
recognized by Argentina – that allows the determina tion of a duty.  The factor has been in place for 
more that 10 years.  We don't know why Argentina didn't challenge it during the original proceeding, but on taking that path you and the AB were neve r confronted with that element so you never ruled 
about this alleged inconsis tency.  Consequently, Chile was never requested to put the Factor 1.56 into 
conformity.  It is an element of the old measur e that Chile didn't changed because it was not obliged 
to do so.  And on the Article II:1(b) claim, let me just say that 21.5 Panels are not called to mend 
errors committed by the disputing par ties during the original proceedings.  
3. Our reading of paragraph 289 of the AB Report is clear.  Chile had to put the PBS into 
conformity with its WTO obligations.  That is ex actly what we have done and we have explained 
those changes and the implications of those changes.   
4. We have always understood that a WTO Member  can decide the level of protection that it 
considers appropriate for its market.  The only lim it of that protection being the bound tariff level 
scheduled in its list.  The AB added that unde r its bound commitments Members cannot maintain 
measures prohibited by Article 4.2.  These measure s restrict trade and distort prices disconnecting 
domestic markets from international price devel opment because they result in levies that vary 
continuous and automatically and lack transparency and predictability in the level of those duties.  
5. The AB pointed out specific features of the PBS concluding that the particular configuration 
and interaction of all these specific features were the determinative elements that made it a measure similar to a variable import levy or a minimum import price.  Logically, if those features are not present the measure in question cannot be similar to a variable import levy or a minimum import 
price.  Consequently no violation of Arti cle 4.2 of the AA can be established.   
6. With this in mind Chile put in place a mech anism that provides a legitimate level of 
protection below the bound tariff rate and in fu ll compliance with the DSB recommendations and 
rulings. 
7. Chile has eliminated all the negative features of  the PBS as singled out by the AB, namely the 
lack of transparency and predictability in the wa y the prices bands were established as well as the way 
the reference price was determined on a weekly basi s and also in an intransparent and unpredictable 
manner.  WT/DS207/RW 
Page D-42  
 
  8. The parameters established in the current system are an instrument that is used only for the 
purpose of determining the specific duties or the le vel of protection that Chile has decided for its 
market.  The duties, if any, are applied in the same  way to all the imports within a certain period of 
time (two months), without consideration of the act ual transaction value as all specific duties and with 
absolute transparency and therefore predictability.  As a matter of fact all the information about the 
present system provided by Argentina was obtained through Chilean web pages. 
9.   As any border protection measure the specific duty increases domestic prices because its 
objective is to provide for a certain level of prices that favour the domestic production.   The duty will 
directly affect the entry price of those imported goods that compete with the domestic product.   
10. But most importantly, being a fixed amount th at doesn't change during a two month period 
already known, the rise or fall of international pr ices will be transmitted through the entry prices to 
the domestic market without insulating domestic prices from the fluctuation of international markets.   
11. On Argentina's arguments that the parameters of the current system have to reflect or be 
related to international market, we emphasize – once again – that there is no need to do so because it 
is the behaviour of the specific duty that directly affects the possibility of price's transmission.  We 
have clearly shown how the current system does ex actly that.  Nevertheless, values related to the 
international market are used for the calculations in order to avoid undesired levels of protection.  
This may occur if the parameters are established in an arbitrary and non transparent manner.  
Furthermore public and easily available informatio n allows all market agents make their own 
commercial decisions based on the same informati on and don't have to wait for some administrative 
act that formalizes the level of protection that will be valid during a certain period. 
12. Argentina throughout this process has claimed th at the reference point to any measure that 
Chile could adopt is the application of a single ad valorem  duty fixed at a certain rate.  Naturally, they 
assume is not the bout tariff (31.5%) but a lower one.  That is not the reference point that has to be 
read from the AB Report.   
13. Argentina hasn't been able to demonstrate that the system established under Law 19.897 and 
its Regulations disconnects the Chilean market from th e evolution of internati onal prices, or what is 
the same, that the system is sustaining a certain ta rget price.  Moreover, Argentina tries to question 
only certain periods of application of the system, wh en a specific duty has been  applied as they stated 
yesterday, as if the application of the duty is the br eaking point to define if a measure is or is not 
inconsistent with 4.2.  Curiously, Argentina clai ms at the same time in paragraph 22 of its oral 
statement that the duties resulting from the applica tion of the system are not the subject of this 
proceeding. 
14. Mr. Chairman and members of the Panel.  It should be clear by now that Law 19.897 and its 
Regulations are not a measure similar to the meas ures listed in the footnote of Article 4.2 but an 
ordinary custom duty.  Mainly because the current system does not produce the effects identified by 
the AB.  Consequently, Argentina's claims should be  rejected confirming that Chile has implemented 
the rulings and recommendations of the DSB. 
Thank you.