MEXICO – TAX MEASURES ON SOFT DRINKS AND OTHER BEVERAGES
Document: Report of the Appellate Body
Date: 6 March 2006
Document codes: WT/DS308/AB/R
Complainant: U.S.
Respondent: Mexico
Third parties: Canada, China, EU, Guatemala, Japan
Dispute stage: Appellate Body
Agreements cited: Art. III  GATT 1994

MEXICO – TAX MEASURES ON SOFT DRINKS
AND OTHER BEVERAGES

AB-2005-10

Report of the Appellate Body

APPELLATE BODY

Mexico, Appellant
United States, Appellee

Canada, Third Participant
China, Third Participant
European Communities, Third Participant
Guatemala, Third Participant
Japan, Third Participant
 AB-2005-10

 Present:

 Taniguchi, Presiding Member
 Janow, Member
 Sacerdoti, Member

I. Introduction
1. Mexico appeals certain issues of law and legal interpretations developed in the Panel Report,
Mexico – Tax Measures on Sof t Drinks and Other Beverages (the "Panel Report").
1 The Panel was
established to consider a complaint by the Un ited States concerning certain tax measures and
bookkeeping requirements imposed by Mexico on soft drinks and other beverages that use sweeteners
other than cane sugar.
2. The measures challenged by the United States include: (i) a 20 per cent tax on the transfer or,
as applicable, the importation of soft drinks and ot her beverages that use any sweetener other than
cane sugar (the "soft drink tax"); (ii) a 20 per cent tax on specific services (commission, mediation,
agency, representation, brokerage, consignment, and distribution), when such services are provided
for the purpose of transferring products such as soft drinks and other beverages that use any sweetener
other than cane sugar (the "distribution tax"); and (iii) a number of requirements imposed on
taxpayers subject to the soft drink tax and to th e distribution tax (the "bookkeeping requirements"). 2
Before the Panel, the United States claimed that these measures are inconsistent with paragraphs 2
and 4 of Article III of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994").
3. In its first written submission to the Panel, Mexico requested that the Panel decide, as a
preliminary matter, to "decline to exercise its jurisdiction in this case" 3 and that it "recommend to the

1WT/DS308/R, 7 October 2005.
2These measures are described in more detail in paragraphs 2.2-2.5 of the Panel Report.
3Panel Report, para. 4.2.

parties that they submit their respective grievances to an Arbitral Panel, under Chapter Twenty of the
NAFTA[
4], which can address both Mexico's concern with respect to market access for Mexican cane
sugar in the United States under the NAFTA and the United States' concern with respect to Mexico's
tax measures."5 Mexico also stated that, in the event the Panel decided to exercise jurisdiction, the
Panel should find that the measures are justified pursuant to Article XX(d) of the GATT 1994.6
4. On 18 January 2005, the Panel issued a prelim inary ruling in which it rejected Mexico's
request.7 In doing so, the Panel concluded that, "under the DSU[ 8], it had no discretion to decide
whether or not to exercise its jurisdiction in a case properly before it." 9 The Panel added that, "even if
it had such discretion, the Panel did not consider that there were facts on record that would justify the
Panel declining to exercise its jurisdiction in the present case."10
5. In its Report, circulated to Members of the World Trade Organization (the "WTO") on
7 October 2005, the Panel concluded that:
(a) With respect to Mexico's soft drink tax and distribution tax :
(i) As imposed on sweeteners, im ported beet sugar is subject
to internal taxes in excess of those applied to like
domestic sweeteners, in a manner inconsistent with
Article III:2, first sentence, of the GATT 1994;
(ii) As imposed on sweeteners, imported HFCS 11 is being
taxed dissimilarly compared with the directly competitive
or substitutable products, so as to afford protection to the
Mexican domestic production of cane sugar, in a manner
inconsistent with Article III:2, second sentence, of the
GATT 1994;
(iii) As imposed on sweeteners, imported beet sugar and
HFCS are accorded less favourable treatment than that
accorded to like products of national origin, in a manner
inconsistent with Article III:4 of the GATT 1994;
(iv) As imposed on soft drinks and syrups, imported soft
drinks and syrups sweetened with non-cane sugar
sweeteners (including HFCS and beet sugar) are subject
to internal taxes in excess of those applied to like
domestic products, in a ma nner inconsistent with
Article III:2, first sentence, of the GATT 1994.

4North American Free Trade Agreement (the "NAFTA").
5Panel Report, para. 3.2.
6Ibid.
7The Panel's preliminary ruling is reproduced as Annex B to the Panel Report.
8Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU").
9Panel Report, para. 7.1.
10Ibid.
11High-fructose corn syrup ("HFCS").

(b) With respect to Mexico's bookkeeping requirements : As imposed
on sweeteners, imported beet sugar and HFCS are accorded less
favourable treatment than that accorded to like products of
national origin, in a manner inconsistent with Article III:4 of the
GATT 1994.
12

The Panel rejected Mexico's defence under Article XX(d) of the GATT 1994, concluding that "the
challenged tax measures are not justified as measures that are necessary to secure compliance by the
United States with laws or regulations which ar e not inconsistent with the provisions of the
GATT 1994."13 The Panel therefore recommended "that the Dispute Settlement Body request Mexico
to bring the inconsistent measures … into conf ormity with its obligations under the GATT 1994."14
6. On 6 December 2005, Mexico notified the Dis pute Settlement Body (the "DSB") of its
intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations
developed by the Panel, pursuant to Article 16.4 of the DSU, and filed a Notice of Appeal 15 pursuant
to Rule 20(1) of the Working Procedures for Appellate Review (the " Working Procedures ").16 O n
13 December 2005, Mexico file d an appellant's submission. 17 In its appeal, Mexico challenges the
Panel's preliminary ruling rejecting Mexico's request that the Panel decline to exercise jurisdiction in
this case, as well as the Panel's findings concerning Article XX(d) of the GATT 1994. Mexico did not
appeal the Panel's findings under Article III of the GATT 1994. On 6 January 2006, the United States
filed an appellee's submission.18 On the same day, China, the European Communities, and Japan each
filed a third participant's submission. 19 Also on the same day, Canada and Guatemala each notified
the Appellate Body Secretariat of its intention to appear at the oral hearing as a third participant.20
7. By letter dated 5 January 2006, Mexico requested authorization to corr ect certain clerical
errors in its appellant's submissi on pursuant to Rule 18(5) of the Working Procedures . On
9 January 2006, the Appellate Body Division hearing the appeal ("the Division") invited all
participants and third participants to comment on Mexico's request, in accordance with Rule 18(5).
On 11 January 2006, the United States responded that, although some of the requested corrections are

12Panel Report, para. 9.2. (original underlining)
13Ibid., para. 9.3.
14Ibid., para. 9.5.
15WT/DS308/10 (attached as Annex I to this Report).
16WT/AB/WP/5, 4 January 2005.
17Pursuant to Rule 21(1) of the Working Procedures . A courtesy English translation of Mexico's
appellant's submission, prepared by Mexico, was provid ed to the participants and third participants on 16
December 2005.
18Pursuant to Rule 22(1) of the Working Procedures.
19Pursuant to Rule 24(1) of the Working Procedures.
20Pursuant to Rule 24(2) of the Working Procedures.

not "clearly clerical", within the meaning of Rule 18(5), "[i]n the circumstances of this dispute", the
United States did not object to Mexico's request. No other comments were received. By letter dated
16 January 2006, the Division authorized Mexico to correct the clerical errors in its appellant's
submission but emphasized, however, that it had not been requested, and did not make, a finding "as
to whether all of the corrections requested by Mexico are 'clerical' within the meaning of Rule 18(5)
of the Working Procedures."
8. On 13 January 2006, the Appellate Body received an amicus curiae brief from Cámara
Nacional de las Industrias Azucarera y Alcoholera (National Chamber of the Sugar and Alcohol
Industries) of Mexico.
21 The Division did not find it necessary to take the brief into account in
resolving the issues raised in this appeal.
9. The oral hearing in this appeal was held on 18 January 2006. The participants and third
participants presented oral arguments (with the ex ception of Guatemala) and responded to questions
posed by the Members of the Division hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Claims of Error by Mexico – Appellant
1. Exercise of Jurisdiction
10. Mexico argues that the Panel erred in rejecting Mexico's request that it decline to exercise
jurisdiction in the circumstances of the present disput e. According to Mexico , the Panel's decision
was primarily based on the Panel's view that Article 11 of the DSU "compels a WTO [p]anel to
address the claims" on which a finding is necessary to enable the DSB to make sufficiently precise
recommendations or rulings to the parties to the dispute and that, therefore, a WTO panel has no
discretion to decline to exerci se validly established jurisdiction.
22 Mexico submits that this is
incorrect and ignores the fact that, like other inte rnational bodies and tri bunals, WTO panels have
certain "implied jurisdictional powers" 23 that derive from their nature as adjudicative bodies.
According to Mexico, such powers include the power to refrain from exercising substantive

21At the oral hearing, Mexico stated that its ar guments are set out in its appellant's and oral
submissions. Mexico added, however, that it would not object should the Appellate Body decide to accept the
amicus brief. The United States noted that the amicus brief had been received late in the proceedings and that
it presented new arguments and claims of error that were not part of Mexico's Notice of Appeal. Accordingly,
while taking the view that the Appellate Body had the authority to accept the brief, the United States argued that
it should decline to do so in the circumstances of this dispute.
reclamaciones").

jurisdiction in circumstances where "the underlying or predominant elements of a dispute derive from
rules of international law"24 under which claims cannot be judicially enforced in the WTO, such as the
NAFTA provisions or when one of the disputing parti es refuses to take the matter to the "appropriate
forum".25 Mexico contends, in this regard, that th e United States' claims under Article III of the
GATT 1994 are inextricably linked to a broader dispute 26 concerning the conditions provided under
the NAFTA for access of Mexican sugar to the Unit ed States market, and that only a NAFTA panel
could resolve the dispute between the parties.
11. Mexico further emphasizes that there is nothi ng in the DSU that explicitly rules out the
existence of a WTO panel's power to decline to exer cise its jurisdiction even in a case that is properly
brought before it. Mexico adds that the applicati on by panels of the principle of "judicial economy"
illustrates that notwithstanding the requirement of Article 7.2 of the DSU that panels address the
relevant provisions in any covered agreement or agreements cited by the parties to the dispute, WTO
panels can decide not to address certain claims. Thus, according to Mexico, there is no question that
WTO panels have an implicit or inherent comp etence. As other examples of panels' "implied
jurisdictional powers", Mexico points, inter alia, to the power of panels to determine whether they
have substantive jurisdiction over a matter and the powe r to decide all matters that are inherent to the
"adjudicative function"27 of panels.
12. Finally, referring to the ruling of the Permanent Court of International Justice (the "PCIJ") in
the Factory at Chorzów case, Mexico calls into question the "a pplicability" of its WTO obligations
towards the United States in the context of this dispute.28
2. Article XX(d) of the GATT 1994
13. Mexico appeals the Panel's finding that the m easures at issue are not justified pursuant to
Article XX(d) of the GATT 1994. In addition, Mexi co requests the Appellate Body to complete the
analysis and find that its tax measures are jus tified under Article XX(d) of the GATT 1994, because

reglas del derecho internacional").
25Ibid. ("foro adecuado").
26Ibid.
27Ibid., para. 67 ("función jurisdiccional").
28See ibid., paras. 73-74. The passage of the ruling that Mexico refers to reads as follows:
… one party cannot avail himself of the fact that the other has not fulfilled
some obligation … if the former party has … prevented the latter … from
having recourse to the tribunal which would have been open to him.
(Permanent Court of International Justice, Factory at Chorzów (Germany v. Poland) (Jurisdiction), 1927, PCIJ
Series A, No. 9, p. 31) (underlining added by Mexico omitted)

the measures are necessary "to secure compliance" by the United States of its obligations under the
NAFTA.
14. Mexico asserts that the Panel erred in finding that the measures at issue are not designed "to
secure compliance" within the meaning of Article XX (d). According to Mexico, this finding is based
on an erroneous interpretation of the terms "to se cure compliance" as involving enforcement action
within a domestic legal system. Mexico argues that there is no basis to exclude action taken to
enforce international treaty obligations from the scope of Article XX(d). Mexico adds that, in the
broader context of international law, counter measures are measures aimed at securing compliance
with international obligations. Mexico further subm its that the Panel erred by equating the concept of
"enforcement" with that of "coercion". In Mexico 's view, the Panel's effort to distinguish between
actions at the domestic level and at the international level based on its understanding of the concept of
coercion in this dispute has no textual basis, because Article XX(d) simply does not refer to the use of
coercion.
15. Moreover, Mexico asserts that the Panel erred by confusing the issue of the "design" of the
measure under Article XX(d) with the issue of its "outcome".
29 Rather than examining whether
Mexico's measures were put in place in order to secure the United States' compliance with its NAFTA
obligations, the Panel considered the effectiveness of those measures. Mexico emphasizes that "even
if the outcome of a measure is completely uncerta in or unpredictable, the measure in question can,
nevertheless be 'designed to secure compliance with laws and regulations' within the meaning of
Article XX(d)".30 Contrary to the Panel's finding, the issu e of the likely outcome of a given measure
is not legally relevant to the assessment of the design of the measure under Article XX(d). Thus,
Mexico takes issue with the Panel's finding th at the "uncertain outcome of international
countermeasures is a reason for disqualifying them as measures eligible for consideration under
Article XX(d)".31 Mexico notes, in this regard, that nothi ng in the text of Article XX(d) suggests that
any measure is a priori ineligible as a measure "to secure comp liance with laws and regulations" on
the basis of its "uncertain outcome".
16. Turning to the meaning of the terms "laws a nd regulations" in Article XX(d), Mexico notes
that the Panel's interpretation of these terms is ba sed on the erroneous conclusions reached by the
Panel with respect to the terms "to secure complian ce". Mexico submits that the words "laws" and

29Mexico's appellant's submission, para. 98 ("destino"; "resultado").
(quoting Panel Report, para. 8.187).

"regulations" are expressly qualified in other provis ions of the covered agreements; the absence of
qualifying language in Article XX(d) thus supports the view that the terms are not limited to domestic
laws or regulations, but include international ag reements. Mexico adds that a review of the
Article XX exceptions reveals that only three—(parag raphs (c), (g), and (i))—are, expressly or by
implication, concerned with an activity that would occur within the territory of the Member seeking to
justify its measures. This position, according to Mexico, is supported by the Appellate Body's
findings in US – Shrimp (Article 21.5 – Malaysia).32
17. Mexico further requests, in the event th e Appellate Body should reverse the Panel's
conclusion, that it complete the Panel's analysis and find that the Mexican measures are "necessary"
within the meaning of Article XX(d) and meet th e requirements of the chapeau of that Article.
According to Mexico, the uncontested facts and evidence in the Panel record, and the Panel's
acknowledgement that Mexico's measures have "attract ed the attention" of the United States, provide
an ample basis on which to complete the analysis and conclude that the measures are "necessary"
within the meaning of Article XX(d).
18. Mexico observes that, before the Panel, the United States could not identify any alternative
measure that Mexico could and should have used in or der to attain its legitimate objective. It further
explains that the fact that a measure does not or has not yet achieved its objective does not mean that
it is not "necessary" within the meaning of Article XX(d). It may mean that it is insufficient to secure
compliance, or that it is insufficient to secure immediate compliance, but can do so over time;
however, it says nothing about whether the measure is "necessary". Moreover, Mexico submits that
the evidence on the record demonstrates that the measures at issue have contributed to securing
compliance in the circumstances of this case by changing the dynamics of the NAFTA dispute and
forcing the United States to pay attention to Mexi co's grievances, and also contradicts the Panel's
finding that Mexico's measures do not contribute to securing compliance in this dispute.
19. As regards the chapeau of Article XX of th e GATT 1994, Mexico asserts that its measures
neither arbitrarily nor unjustifiably discriminate betw een countries where the same conditions prevail.
Rather than constituting "arbitrary or unjustifiable discrimination", the measures constitute "limited

32Mexico's appellant's submission, paras. 174 and 177-178 (referring to Appellate Body Report,
US – Shrimp (Article 21.5 – Malaysia), paras. 123-124 and 128-130).

sectoral retaliation in the relevant market segment ( i.e., the sweeteners market)."
33 Nor can the
measures be said to be a "disguised restriction on [international] trade" because they constitute "a
proportionate, legitimate and legally justified response to actions and omissions of the United
States"34, and, furthermore, the measures have been published.
20. Finally, Mexico argues that the Panel, "separately and in addition" 35 to the previous errors,
failed to make "an objective assessment of the facts" , as required by Article 11 of the DSU, in finding
that "Mexico has not established that its me asures contribute to securing compliance in the
circumstances of this case."36 According to Mexico, the Panel's finding is based solely on the Panel's
view that attracting the attention of the United States is not equivalent to securing compliance with a
law or regulation and ignores that "achieving the objectives sought by the countermeasures can take
time".
37
B. Arguments of the United States – Appellee
1. Exercise of Jurisdiction
21. The United States submits that the Panel properly rejected Mexico's request for the Panel to
refrain from exercising jurisdiction in the present dispute.
22. Referring to Article 11 of the DSU, the United St ates observes that, if the Panel had declined
to exercise jurisdiction over this dispute, or had agr eed to Mexico's request that it refrain from issuing
findings and recommendations, the Panel would have made no findings on the United States' claims
that Mexico's tax measures are inconsistent with Article III of the GATT 1994. This would have
left the DSB "unable to give any rulings or ( as is appropriate in this dispute) to make any

33Mexico's appellant's submission, para. 173 (" retorsiones sectoriales limitadas al segmento del
mercado relevante (i.e., el mercado de los edulcorantes)"). Mexico asserts that the facts of this case are similar
to the situation examined by the Appellate Body in US – Shrimp (Article 21.5 – Malaysia) . Mexico explains
that, in that dispute, the Appellate Body found that a United States unilateral measure was not inconsistent with
the chapeau of Article XX of the GA TT 1994. According to Mexico, in that case, the Appellate Body did not
require the United States to conclude an international agreement with the disputing parties, but rather required it
to have made good faith efforts in that direction. In this case, Mexico argues that it has sought to resolve the
dispute through NAFTA and bilateral negotiations, but "the United States has essentially blocked Mexico's
ability to have its grievance resolved." (Mexico's appellant's submission, paras. 174-181 (" Estados Unidos
esencialmente ha bloqueado la posibilidad de México para resolver su agravio."))
omisiones de Estados Unidos").
35Ibid., heading III.E ("independiente y adicional").
puede llevar tiempo").

recommendations"38 in accordance with the rights and obligations under the DSU and the
GATT 1994. The United States emphasizes that such a result is incompatible with the text of the
DSU and would have required the Pa nel to disregard the mandate give n to it by the DSB. Moreover,
the United States observes that the Panel's own terms of reference in this dispute instructed the Panel
to examine the matter referred to the DSB by the United States and to make such findings as will
assist the DSB in making the recommendations and rulings provided for under the DSU.
23. Referring to Articles 3.2 and 19.2 of the DSU, th e United States adds that, if a panel were to
decline to exercise jurisdiction over a particular dispute, it would diminish the rights of the
complaining Member under the DSU and other covere d agreements. The United States further notes
that prior reports of panels and the Appellate Body also support the Panel's findings. In this regard,
the United States refers to Mexico – Corn Syrup (Article 21.5 – US) , where the Appellate Body stated
that "panels are required to address issues that are put before them by the parties to a dispute."39
24. The United States observes that Mexico has refe rred to the principle of judicial economy as
an example of "situations where WTO panels ha ve refrained from exercising validly established
substantive jurisdiction on certain claims that are before them."40 However, the United States submits
that, "when a panel exercises judicial economy, it do es not decline to exercise substantive jurisdiction
either over a dispute or certain claims in a dispute. Rather, the panel … declines to make findings on
certain claims when resolution of such claims is not necessary for the panel to fulfill its mandate
under Article 11 of the DSU and its terms of reference." 41 In other words, judicial economy "does not
relieve a panel from its duty to carry out its mandate under Articles 7 and 11 of the DSU to resolve the
dispute"42 before it.
2. Article XX(d) of the GATT 1994
25. The United States submits that the Panel properly found that Mexico's tax measures are not
designed "to secure compliance" and, thus, are not justified as measures "to secure compliance with
laws or regulations" within the meaning of Article XX(d) of the GATT 1994. It notes that previous
GATT and WTO disputes in which Article XX(d) has been invoked have invol ved domestic laws or
regulations.

39Ibid., para. 127 (quoting Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36).
41Ibid. (referring to Appellate Body Report, US – Wool Shirts and Blouses , p. 19, DSR 1997:I, 323,
at 340; and to Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 133).
42Ibid., para. 130.

26. The United States agrees with the Panel's analys is of the terms "laws or regulations" and,
therefore, supports the Panel's finding that these terms refer only to domestic laws or regulations and
not to obligations under international agreements . The United States explains that Article XX(d)
refers to "laws" and "regulations" in the plural, while the singular "law" is used when referring to
"international law".
43 The United States further observes that the terms "laws or regulations" precede
the words "which are not inconsistent" in Article XX(d) and explains that the term "inconsistent"
appears elsewhere in the GATT 1994 in connection w ith domestic measures. In contrast, the WTO
agreements use the word "conflict" when referring to international obligations.
27. The United States further submits that Mexico's interpretation of the terms "laws or
regulations" would undermine Articles 22 and 23 of the DSU, as it would permit action, including the
suspension of concessions, by any Member "outside the rules of the DSU". 44 The United States
observes that Article XX(d) was not intended to provide the basis for suspending concessions under
the WTO agreements upon a mere allegation of a breach of a non-WTO international agreement.
Otherwise, according to the United States, "this would effectively convert WTO dispute settlement
into a forum of general dispute resolution for all international agreements."45 Furthermore, the United
States argues that, if the terms "laws or regulations " are read to include obligations under non-WTO
agreements, the WTO dispute settlement system "would become a forum for WTO Members to allege
and obtain findings as to the consistency of another Member's measure with any non-WTO
agreement."46 The United States, therefore, disagrees w ith Mexico's arguments that the phrase "laws
or regulations" in Article XX(d) refers to international agreements.
28. With respect to the Panel's interpretation of the phrase "to secure compliance", the United
States notes that the references to coercion were inte nded "merely [to] reinforce the Panel's view that
'enforcement' does not refer to the international level" 47 and not, as Mexico argues, to create an
additional requirement for justifying a measure unde r Article XX(d). The United States therefore
agrees with the Panel that the terms "to secure co mpliance" do not apply to measures taken by one
Member to induce another Member to comply with obligations under a non-WTO treaty.
29. The United States also rejects Mexico's subm ission that the "Panel wrongly found that
measures with an 'uncertain outcome' are ' a priori ineligible' as measures to secure compliance with

43The United States observes that Article 3.2 of the DSU and Article 17.6 of the Anti-Dumping
Agreement also use the term "law" in the singular when referring to "public international law".
45Ibid., para. 85. (footnote omitted)
46Ibid., para. 41.
47Ibid., para. 54 (referring to Panel Report, paras. 8.175 and 8.178).

laws or regulations." 48 While the United Stat es concedes that the Panel's analysis "could have
admittedly been clearer" 49, it also notes that the Panel did not require certainty, and argues that the
Panel's remarks on this point simply characterized Mexico's failure to "put forth any evidence that its
tax measures were designed to [secure] compliance." 50 The United States agrees with Mexico that
"Article XX(d) does not require the party invoking the defense to establish that its measure will,
without a doubt or with certainty, secure compliance with laws or regulations." 51 Nevertheless, the
United States submits that Mexico has to provide some evidence that the m easure is "designed" to
secure such compliance.
30. For all these reasons, the United States submits that the Appellate Body should uphold the
Panel's conclusion that Mexico's tax measures are not designed to secure compliance and, thus, are
not justified as measures "to secure compliance with laws or regulations" within the meaning of
Article XX(d) of the GATT 1994.
31. In the event the Appellate Body should re verse the Panel's finding and accept Mexico's
request to complete the analysis, the United St ates asserts that Mexico's measures are neither
"necessary" for purposes of Article XX(d), nor do they meet the requirements of the chapeau of that
Article. According to the United States, Mexico has not demonstrated that the measures at issue
contribute to compliance by the United Stat es with its NAFTA obligations and "ignores" 52 the fact
that the trade impact of a measure is one of the factors that must be weighed and balanced when
determining whether a measure is "necessary". The impact of Mexico's measures was "essentially
[to] prohibit the use of imported HFCS in Mexican soft drinks and other beverages and to reduce
import volumes". 53 The United States adds that "[i]t is difficult to understand how discriminating
against imports from potentially every WTO Member is 'necessary' to secure [the United States']
compliance with [its] obligations under the NAFTA."
54 The United States further observes that the
absence of alternative measures that could be reasona bly available does not, in itself, mean that the
challenged measures are "necessary". In any event, the United States submits that if Mexico's
objective was to attract the attention of the United States, it could have pursued a variety of other
actions, including pursuing the diplomatic avenues available under the NAFTA.

48United States' appellee's submission, para. 70 (quoting Mexico's appellant's submission,
paras. 104-105).
49Ibid., para. 71.
50Ibid. (original emphasis)
51Ibid., para. 72. (footnote omitted)
52Ibid., para. 96.
53Ibid., para. 97.
54Ibid.

32. The United States submits, furthermore, that Me xico's measures do not meet the requirements
of the chapeau of Article XX of the GATT 1994. Th e only evidence that Mexico offers to support its
contention that the measures do not constitute arb itrary or unjustifiable discrimination is the
characterization of the measures as international countermeasures.
55 This is insufficient, argues the
United States, for Mexico to meet its burden of proof . Moreover, the fact that Mexico may have been
transparent about its measures is not sufficient to establish that such measures are not a "disguised
restriction on trade".56
33. Lastly, the United States requests the Appellate Bo dy to reject Mexico's contention that the
Panel did not make an objective assessment of the facts, as required by Article 11 of the DSU.
According to the United States, the Panel did not "ignore" arguments or evidence submitted by
Mexico. The United States further explains that, in any event, the errors alleged by Mexico in support
of its claim under Article 11 of the DSU "relate to the interpretation of Article XX, and do not support
a conclusion that the Panel breached Article 11."57
C. Arguments of the Third Participants
1. China
34. Referring to Articles 7 and 11 of the DSU, Chin a argues that a WTO panel does not have an
implied power to refrain from performing its "statutory function".58 China submits that, if a panel that
is "empowered and obligated" 59 to assist the DSB in the settlement of a dispute declines to exercise
jurisdiction, such a decision would create legal unc ertainty and be contrary to the aim of providing
security and predictability to the multilateral trad ing system as well as the prompt settlement of
disputes as provided for in Article 3.3 of the DSU. China argues, moreover, that the notion of judicial
economy is "relevant and applicable" 60 only if a panel has assumed the jurisdiction defined by its

55According to the United States, the Appellate Body rulings in US – Shrimp (Articles 21.5 – Malaysia)
do not support Mexico's position, because that dispute did not involve a disagreement about the commitments
made under an international agreement. (United States' appellee's submission, paras. 109-110)
56Ibid., para. 114.
57Ibid., para. 118.
58China's third participant's submission, para. 5.
59Ibid., para. 6.
60Ibid., para. 7.

terms of reference and has made "such findings as will assist the DSB" within the meaning of
Article 11 of the DSU.
35. China asserts that the terms "laws or regulations" in Article XX(d) do not encompass
international agreements. China states that Article X of the GATT 1994 provides contextual
guidance for the interpretation of Article XX( d). Article X expressly distinguishes between
"[l]aws, regulations, judicial decisions and admi nistrative rulings" and "[a] greements … between the
government or a governmental agency of any Member and the government or governmental agency of
any other Member". China adds that interpretin g "laws or regulations" to include international
agreements would allow a WTO Member to justif y under Article XX(d) its deviation from its WTO
obligations in the name of any remedial measure in response to any alleged breach of any non-WTO
international agreement. Such a scenario, according to China, is not consistent with the object and
purpose of the GATT 1994.
2. European Communities
36. The European Communities subm its that the Appellate Body should uphold the Panel's
finding that it did not have the discretion to decline to exercise jurisdiction in this case. The European
Communities submits that "the functions and obligat ions of WTO Panels must be established on the
basis of the DSU, and particularly Article 11 thereof." 61 On this basis, the European Communities
agrees that a panel has an inherent power to establish whether it has jurisdiction, and whether a
particular matter is within its jurisdiction. Ho wever, the European Communities argues that a panel
may not freely, or by "the notion of 'judicial economy'", decide to refrain from exercising its
jurisdiction "in a case properly brought before it under the DSU."
62
37. The European Communities asserts, furthermore, that the Appellate Body should uphold the
Panel's finding that only measures made applicable in the domestic legal order of a WTO Member
constitute "laws or regulations" within the meani ng of Article XX(d). The European Communities
disagrees, however, with the Panel's finding that "i nternational agreements, even when incorporated
into the domestic law of a WTO Member, can neve r be regarded as 'laws or regulations' for the
purposes of Article XX(d)". 63 In addition, the European Comm unities takes issue with the Panel's
interpretation of the terms "to secure compliance" as requiring a degree of certainty in the results that
may be achieved through the measure.

61European Communities' third participant's submission, para. 8.
62Ibid., paras. 10-11.
63Ibid., para. 44.

3. Japan

38. Japan disagrees with the Panel's interpretati on of the terms "to secure compliance" in
Article XX(d). In this regard, Japan submits that Article XX(d) does not necessarily exclude
measures that have, as a purpose, to secure comp liance, but are not accompanied by compulsory
enforcement. According to Japan, compliance can be secured by a request or a command without
being accompanied by any coercion. Japan consider s that the Panel erred by indicating that the
determination of whether a measure is designed "t o secure compliance" should be analyzed based on
the degree of certainty of its outcome. Neverthel ess, Japan agrees with the Panel's finding that
Article XX(d) does not cover international agreemen ts. Japan explains that the terms "laws or
regulations", read together with the phrase "t o secure compliance", "presuppose a hierarchical
structure that is associated with the relation between the state and its subjects" 64 and, therefore,
excludes international agreements.
III. Issues Raised in This Appeal
39. The following issues are raised in this appeal:
(a) whether the Panel erred in concluding th at a WTO panel "has no discretion to decide
whether or not to exercise its jurisdiction in a case properly before it" 65 and, if so,
whether the Panel erred in declining to exercise that discretion in the circumstances of
this dispute;
(b) whether the Panel erred in concluding that Mexico's measures do not constitute
measures "to secure compliance with laws or regulations", within the meaning of
Article XX(d) of the GATT 199466; and
(c) whether the Panel failed to make an objec tive assessment of the facts of the case, as
required by Article 11 of the DSU, in concl uding that "even if the assumption were to
be made in the abstract that internatio nal countermeasures are potentially capable of
qualifying as measures designed to secure compliance", within the meaning of
Article XX(d) of the GATT 1994, "Mexico has not established that its measures
contribute to securing compliance in the circumstances of this case."67

64Japan's third participant's submission, para. 22.
65Panel Report, para. 7.18.
66Ibid., para. 8.198.
67Ibid., para. 8.186.

IV. The Panel's Exercise of Jurisdiction
A. Introduction
40. In its first written submission to the Panel, Mexico requested that the Panel decide, as a
preliminary matter, to decline to exercise ju risdiction "in favour of an Arbitral Panel under
Chapter Twenty of the North American Free Trade Agreement (NAFTA)." 68 In a preliminary ruling,
the Panel rejected Mexico's request and found inst ead that, "under the DSU, it had no discretion to
decide whether or not to exercise its jurisdiction in a case properly before it." 69 The Panel added that
even if it had such discretion, it "did not consider th at there were facts on record that would justify the
Panel declining to exercise its jurisdiction in the present case."70
41. In its reasoning, the Panel opined that "discreti on may be said to exist only if a legal body has
the freedom to choose among several options, all of them equally permissible in law." 71 According to
the Panel, "such freedom ... would exist within th e framework of the DSU only if a complainant did
not have a legal right to have a panel decide a case properly before it."72 Referring to Article 11 of the
DSU and to the ruling of the Appellate Body in Australia – Salmon, the Panel observed that "the aim
of the WTO dispute settlement system is to resolve the matter at issue in particular cases and to secure
a positive solution to disputes" and that a panel is required "to address the claims on which a finding
is necessary to enable the DSB to make sufficiently precise recommendations or rulings to the
parties."73 From this, the Panel concluded that a WTO panel "would seem therefore not to be in a
position to choose freely whether or not to exercise its jurisdiction." 74 Referring to Articles 3.2
and 19.2 of the DSU, the Panel further stated that "[ i]f a WTO panel were to decide not to exercise its
jurisdiction in a particular case, it would diminish the rights of the complaining Member under the
DSU and other WTO covered agreements."
75 The Panel added that Article 23 of the DSU "make[s] it
clear that a WTO Member that considers that any of its WTO benefits have been nullified or impaired
as a result of a measure adopted by another Member has the right to bring the case before the WTO
dispute settlement system."76

68Panel Report, para. 7.1.
69Ibid.
70Ibid.
71Ibid., para. 7.7.
72Ibid.
74Ibid.
75Ibid., para. 7.9.
76Ibid.

42. On appeal, Mexico contends that the Panel erre d in rejecting Mexico's request that it decline
to exercise jurisdiction in the circumstances of the present dispute. Mexico submits that WTO panels,
like other international bodies and tribunals, "have certain implied jurisdictional powers that derive
from their nature as adjudicative bodies."
77 Such powers include the power to refrain from exercising
substantive jurisdiction in circumst ances where "the underlying or predominant elements of a dispute
derive from rules of international law under which cl aims cannot be judicially enforced in the WTO,
such as the NAFTA provisions" or "when one of the dis puting parties refuses to take the matter to the
appropriate forum."78 Mexico argues, in this regard, that the United States' claims under Article III of
the GATT 1994 are inextricably linked to a broader dispute 79 regarding access of Mexican sugar to
the United States' market under the NAFTA. Mexico further emphasizes that "[t]here is nothing in
the DSU ... that explicitly rules out the existence of" 80 a WTO panel's power to decline to exercise
validly established jurisdiction and submits that "the Panel should have exercised this power in the
circumstances of this dispute."81
43. In contrast, the United States argues that, "[t]he Panel's own terms of reference in this dispute
instructed the Panel 'to examine ... the matte r referred to the DSB by the United States'" 82 and
"to make such findings as will assist the DSB" in making the recommendations and rulings provided
for under the DSU. China and the European Commun ities agree with the United States that the Panel
had no discretion to decline to exercise jurisdiction. China submits that if a panel declines to exercise
jurisdiction over a dispute, such a decision will create legal uncertainty, contrary to the aim of
providing security and predictability to the multilatera l trading system and the prompt settlement of
disputes as provided for in Article 3.3 of the DSU. 83 The European Communities agrees with the
Panel's finding that it did not have discretion to d ecline to exercise jurisdiction in this case, and
emphasizes that "the functions and obligations of WTO Panels must be established on the basis of the
DSU, and particularly Article 11 thereof."84

77Mexico's appellant's submission, para. 65 (" tienen ciertas facultades implícitas en relación con su
competencia, las cuales derivan de su propia naturaleza como órganos jurisdiccionales").
TLCAN"; "cuando una de las partes contendientes se rehúsa a someterse al foro adecuado").
79Ibid.
disputa").
83China's third participant's submission, para. 6.
84European Communities' third participant's submission, para. 8.

B. Analysis
44. Before addressing Mexico's arguments, we note that "Mexico does not question that the Panel
has jurisdiction to hear the United States' claims." 85 Moreover, Mexico does not claim "that there are
legal obligations under the NAFTA or any other in ternational agreement to which Mexico and the
United States are both parties, which might raise legal impediments to the Panel hearing this case". 86
Instead, Mexico's position is that, although the Panel had the authority to rule on the merits of the
United States' claims, it also had the "imp lied power" to abstain from ruling on them 87, and "should
have exercised this power in the circumstances of this dispute." 88 Hence, the issue before us in this
appeal is not whether the Panel was legally preclud ed from ruling on the United States' claims that
were before it, but, rather, whether the Panel coul d decline, and should have declined, to exercise
jurisdiction with respect to the United States' claims under Article III of the GATT 1994 that were
before it.
45. Turning to Mexico's arguments on appeal, we note, first, Mexico's argument that WTO
panels, like other international bodies and tribunals, "have certain implied jurisdictional powers that
derive from their nature as adjudicative bodies" 89, and thus have a basis for declining to exercise
jurisdiction. We agree with Mexico that WTO pane ls have certain powers that are inherent in their

competencia para resolver la reclamac ión que Estados Unidos ha interpuesto ") (quoting Mexico's response to
Question 35 posed by the Panel; Panel Report, p. C-16). Mexico confirmed this point in response to
questioning at the oral hearing.
86Panel Report, para. 7.13. In response to questioning at the oral hearing, Mexico argued that the panel
in Argentina – Poultry Anti-Dumping Duties "at least contemplated the exis tence of a situation where an
impediment found in another agreement might give rise to declining jurisdiction". The panel in Argentina –
Poultry Anti-Dumping Duties referred to Article 1 of the Protocol of Olivos, which provides that, once a party
decides to bring a case under either the MERCOSUR or WTO dispute settlement forum, that party may not
bring a subsequent case regarding the same subject-matter in the other forum, and went on to state:
The Protocol of Olivos ... does not change our assessment, since that
Protocol has not yet entered into force, and in any event it does not apply in
respect of disputes already decide d in accordance with the MERCOSUR
Protocol of Brasilia. Indeed, the fact that parties to MERCOSUR saw the
need to introduce the Protocol of Olivos suggests to us that they recognised
that (in the absence of such Protocol) a MERCOSUR dispute settlement
proceeding could be followed by a WTO dispute settlement proceeding in
respect of the same measure.
(Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.38) (footnote omitted)
87Thus, Mexico suggested that, in the circumstances of this dispute, it would not have been
"appropriate" for the Panel "to issue findings on the merits of the United States ' claims." (Panel Report,
para. 7.11 (referring to Mexico's first written submission to the Panel, paras. 102-103))
88Mexico's appellant's submission, para. 72 (" debió haber ejercido esa facultad en las circunstancias
de esta disputa").
derivan de su propia naturaleza como órganos jurisdiccionales").

adjudicative function. Notably, panels have the right to determine whether they have jurisdiction in a
given case, as well as to determine the scope of their jurisdiction. In this regard, the Appellate Body
has previously stated that "it is a widely accepted rule that an international tribunal is entitled to
consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has
jurisdiction in any case that comes before it."
90 Further, the Appellate Body has also explained that
panels have "a margin of discr etion to deal, always in accordan ce with due process, with specific
situations that may arise in a particular case and that are not explicitly regulated." 91 For example,
panels may exercise judicial economy, that is, refrain from ruling on certain claims, when such rulings
are not necessary "to resolve the ma tter in issue in the dispute". 92 The Appellate Body has cautioned,
nevertheless, that "[t]o provide only a partial resolution of the matter at issue would be false judicial
economy."93
46. In our view, it does not necessarily follow, ho wever, from the existence of these inherent
adjudicative powers that, once jurisdiction has been validly established, WTO panels would have the
authority to decline to rule on the entirety of the cl aims that are before them in a dispute. To the
contrary, we note that, while recognizing WTO pane ls' inherent powers, th e Appellate Body has
previously emphasized that:

90Appellate Body Report, US – 1916 Act , footnote 30 to para. 54. See also Appellate Body Report,
Mexico – Corn Syrup (Article 21.5 – US), para. 53. In that dispute, the Appellate Body also stated that:
… panels have to address and dispose of certain issues of a fundamental
nature, even if the parties to the di spute remain silent on those issues. ...
[P]anels cannot simply ignore issues which go to the root of their
jurisdiction—that is, to their authority to deal with and dispose of matters.
Rather, panels must deal with su ch issues—if necessary, on their own
motion—in order to satisfy themselves that they have authority to proceed.
(Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36)
91Appellate Body Report, EC – Hormones, footnote 138 to para. 152. See also Appellate Body Report,
US – FSC (Article 21.5 – EC), paras. 247-248.
92Appellate Body Report, US – Wool Shirts and Blouses , p. 19, DSR 1997:I, 323, at 340. Mexico
referred, in its appellant's submission, to a panel's discretion to apply judicial economy as "an example of
situations where WTO panels have refrained from exerci sing validly established jurisdiction on certain claims
especiales de la OMC se han abstenido de resolver ciertas reclamaciones sobre las cuales tienen competencia
sustantiva validamente establecida")) Mexico clarified at the oral hearing, however, that "it is clear that in the
context of the exercise of judicial economy a panel cannot decline entirely to exercise jurisdiction." The United
States noted, in this regard, that the doctrine of judicial economy "does not relieve a panel from its duty to carry
out its mandate under Articles 7 and 11 of the DSU to re solve the dispute" before it. (United States' appellee's
submission, para. 130)

Although panels enjoy some discretion in establishing their own
working procedures, this discretion does not extend to modifying the
substantive provisions of the DSU. … Nothing in the DSU gives a
panel the authority either to disr egard or to modify ... explicit
provisions of the DSU.
94 (emphasis added)

47. With these considerations in mind, we examine the scope of a panel's jurisdictional power as
defined, in particular, in Articles 3.2, 7.1, 7.2, 11, 19.2, and 23 of the DSU. Mexico argues that
"[t]here is nothing in the DSU ... that explicitly rules out the existence of" 95 a WTO panel's power to
decline to exercise its jurisdiction even in a case that is properly before it.
48. We first address Article 7 of the DSU, which governs the terms of reference of panels.
Article 7 of the DSU states, in its first paragra ph, that panels shall ha ve the following terms of
reference:
"To examine, in the light of the relevant provisions in (name of the
covered agreement(s) cited by the parties to the dispute), the matter
referred to the DSB by (name of pa rty) in document … and to make
such findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in that/those agreement(s)."

The Panel in this dispute was established with standard terms of reference
96, which instructed the
Panel to "examine" the United States' claims that were before it and to "make findings" with respect to
consistency of the measures at issue with Article III of the GATT 1994.
49. The second paragraph of Article 7 further stipulat es that "[p]anels shall address the relevant
provisions in any covered agreement or agreements cited by the parties to the dispute." The use of the
words "shall address" in Article 7.2 indicates, in our view, that panels are required to address the
relevant provisions in any covered agreement or agreements cited by the parties to the dispute.97

94Appellate Body Report, India – Patents (US), para. 92.
existan").
96The Panel's terms of reference in this dispute were as follows:
To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document WT/DS308/4, the
matter referred to the DSB by the United States in that document, and to
make such findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in those agreements.
(WT/DS308/5/Rev.1, para. 2)
97In this regard, we further note the Appellate Body's statement that, "as a matter of due process, and
the proper exercise of the judicial function, panels are re quired to address issues that are put before them by the
parties to a dispute." (Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36)

50. We turn next to Article 11 of the DSU, which provides that:
The function of panels is to assist the DSB in discharging
its responsibilities under this U nderstanding and the covered
agreements. Accordingly, a panel should make an objective
assessment of the matter before it, including an objective assessment
of the facts of the case and the applicability of and conformity with
the relevant covered agreements, and make such other findings as
will assist the DSB in making the r ecommendations or in giving the
rulings provided for in the covered agreements. …

51. Article 11 of the DSU states that panels should make an objective assessment of the matter
before them. The Appellate Body has previously held that the word "should" can be used not only "to
imply an exhortation, or to state a preferen ce", but also "to express a duty [or] obligation".
98 T h e
Appellate Body has repeatedly ruled that a panel would not fulfil its mandate if it were not to make an
objective assessment of the matter.99 Under Article 11 of the DSU, a panel is, therefore, charged with
the obligation to "make an objective assessment of th e matter before it, including an objective
assessment of the facts of the case and the applicability of and co nformity with the relevant covered
agreements." Article 11 also requires that a panel "make such other findings as will assist the DSB in
making the recommendations or in giving the rulings pr ovided for in the covered agreements." It is
difficult to see how a panel would fulfil that obliga tion if it declined to exercise validly established
jurisdiction and abstained from making any finding on the matter before it.
52. Furthermore, Article 23 of the DSU states that Members of the WTO shall have recourse to
the rules and procedures of the DSU when they "seek the redress of a violation of obligations ... under
the covered agreements". As the Appellate Body has previously explained, "allowing measures to be
the subject of dispute settlement proceedings ... is consistent with the comp rehensive nature of the
right of Members to resort to dispute settlement to 'preserve [their] rights and obligations … under the
covered agreements, and to clarify the ex isting provisions of those agreements'." 100 We also note in
this regard that Article 3.3 of the DSU provides th at the "prompt settlement of situations in which
a Member considers that any benefits accruing to it directly or indirectly under the covered
agreements are being impaired by measures taken by another Member is essential to the effective

98Appellate Body Report, Canada – Aircraft , para. 187 (quoting The Concise Oxford English
Dictionary (Clarendon Press, 1995), p. 1283).
99See, for instance, Appellate Body Report, EC – Export Subsidies on Sugar , paras. 329 and 335. See
also Appellate Body Report, Canada – Aircraft, paras. 187-188; and Appellate Body Report, EC – Hormones,
para. 133.
100Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 89. (footnote omitted)

functioning of the WTO". 101 The fact that a Member may initiate a WTO dispute whenever it
considers that "any benefits accruing to [that Member] are being impaired by measures taken by
another Member" implies that that Member is entitled to a ruling by a WTO panel.
53. A decision by a panel to decline to exercise validly established jurisdiction would seem to
"diminish" the right of a complaining Member to "seek the redress of a violation of obligations"
within the meaning of Article 23 of the DSU, and to bring a dispute pursuant to Article 3.3 of the
DSU. This would not be consistent with a pane l's obligations under Articles 3.2 and 19.2 of the
DSU.
102 We see no reason, therefore, to disagree with the Panel's statement that a WTO panel "would
seem … not to be in a position to choose freely whether or not to exercise its jurisdiction."103
54. Mindful of the precise scope of Mexico's appeal 104, we express no view as to whether there
may be other circumstances in which legal impedi ments could exist that would preclude a panel from
ruling on the merits of the claims that are before it. In the present case, Mexico argues that the United
States' claims under Article III of the GATT 1994 ar e inextricably linked to a broader dispute 105, and

101(emphasis added) Thus, the Appellate Body has explained that there is "little in the DSU that
explicitly limits the rights of WTO Members to bring an action". (Appellate Body Report, EC – Export
Subsidies on Sugar , para. 312) In a similar vein, the Appellate Body has also observed that a WTO "Member
has broad discretion in deciding whether to bring a case against another Member under the DSU." (Appellate
Body Report, EC – Bananas III, para. 135) Further, Article 3.7 of the DSU states that "[b]efore bringing a case,
a Member shall exercise its judgement as to whether action under these procedures would be fruitful." (emphasis
added) Finally, Article 3.10 of the DSU stipulates that "if a dispute arises, all Members will engage in these
procedures in good faith in an effort to resolve the dispute." (emphasis added)
102Article 3.2 of the DSU provides that "[r]ecommendations and rulings of the DSB cannot add to or
diminish the rights and obligations provided in the covered agreements."
Article 19.2 of the DSU states that "[i]n accordance with paragraph 2 of Article 3, in their findings and
recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided
in the covered agreements."
103Panel Report, para. 7.8.

that only a NAFTA panel could resolve the dispute as a whole.
106 Nevertheless, Mexico does not take
issue with the Panel's finding that "neither the subject matter nor the respective positions of the parties
are identical in the dispute under the NAFTA ... and the dispute before us." 107 Mexico also stated that
it could not identify a legal basis that would allow it to raise, in a WTO dispute settlement proceeding,
the market access claims it is pursuing under the NAFTA. 108 It is furthermore undisputed that no
NAFTA panel as yet has decided the "broader disput e" to which Mexico has alluded. Finally, we
note that Mexico has expressly stated that the so- called "exclusion clause" of Article 2005.6 of the
NAFTA109 had not been "exercised".110 We do not express any view on whether a legal impediment to

106In its appellant's submission, Mexico explains that, in 1998, it initiated NAFTA dispute settlement
proceedings because it was of the view that the United States was acting inconsistently with its obligation under
the NAFTA relating to market access for Mexican sugar to the United States ma rket. In 2000, Mexico
requested the establishment of a panel under Article 200 8 of the NAFTA. Subseque ntly, according to Mexico,
it appointed its panelists to the NAFTA panel; however, the United States failed to appoint its panelists and also
instructed the United States' Section of the NAFTA Secr etariat not to appoint panelists. (Mexico's appellant's
submission, paras. 15-27)
As a result, "[n]o further step could be taken by Mexico to form the NAFTA panel and have its
grievance heard." (Mexico's appellant's submission, para. 28 (" No había otros pasos que México pudiera dar
Mexico explains that it subsequently adopted the measures at issue in this dispute "to compel the United States
to comply with its obligations and [to] protect [Mexico's] own legal and commercial interests." ( Ibid., para. 42
jurídicos y comerciales [de México]"))
The United States disputes these arguments by Mexi co and argues that "the Appellate Body [should
not] undertake itself to assess the correctness of Mexico's assertions as to what the NAFTA requires." (United
States' appellee's submission, para. 18) It submits that, if the WTO dispute settlement were to "become a forum
for WTO Members to ... obtain findings as to the cons istency of another Member's measure with any non-WTO
agreement", this "would be a departure from the function the WTO dispute settlement system was established to
serve". (Ibid., para. 41) The United States also submits that "it is in full compliance with its obligations under
NAFTA's dispute settlement mechanism." (Ibid., para. 84)
While these NAFTA issues have been described by the parties by way of background to the WTO
dispute, neither the Panel or the Appellate Body was called upon to examine these issues.
107Panel Report, para. 7.14. The Panel noted, in this regard, that:
[i]n the present case, the complaini ng party is the United States and the
measures in dispute are allegedly impos ed by Mexico. In the NAFTA case,
the situation appears to be the reverse: the complaining party is Mexico and
the measures in dispute are allegedly im posed by the United States. As for
the subject matter of the claims, in the present case the United States is
alleging discriminatory treatment against its products resulting from internal
taxes and other internal measures imposed by Mexico. In the NAFTA case,
instead, Mexico is arguing that the United States is violating its market
access commitments under the NAFTA.
108Mexico's response to questioning at the oral hearing.
109Article 2005.6 of the NAFTA provides:
Once dispute settlement procedures have been initiated under Article 2007
or dispute settlement proceedings have been initiated under the GATT, the
forum selected shall be used to the exclusion of the other, unless a Party
makes a request pursuant to paragraph 3 or 4. (emphasis added)
110Mexico's response to questioning at the oral hearing.

the exercise of a panel's jurisdiction would exist in the event that features such as those mentioned
above were present.111 In any event, we see no legal impediments applicable in this case.
55. Finally, as we understand it, Mexico's positi on is that the "applicability" of its WTO
obligations towards the United States would be "call[ed] into question" 112 as a result of the United
States having prevented Mexico, by an illegal act (n amely, the alleged refusal by the United States to
nominate panelists to the NAFTA panel), from ha ving recourse to the NAFTA dispute settlement
mechanism to resolve a bilateral dispute between Mexico and the United States regarding trade in
sweeteners.113 Specifically, Mexico refers to the ruli ng of the Permanent Court of International
Justice (the "PCIJ") in the Factory at Chorzów case, and "calls into question the 'applicability' of its
WTO obligations towards the United States in the context of this dispute".114
56. Mexico's arguments, as well as its reliance on the ruling in Factory at Chorzów, is misplaced.
Even assuming, arguendo, that the legal principle reflected in the passage referred to by Mexico is
applicable within the WTO dispute settlement system, we note that this would entail a determination
whether the United States has acted consistently or inconsistently with its NAFTA obligations.
115 We
see no basis in the DSU for panels and the Appe llate Body to adjudicate non-WTO disputes.
Article 3.2 of the DSU states that the WTO disput e settlement system "serves to preserve the rights
and obligations of Members under the covered agreements, and to clarify the existing provisions of
those agreements". (emphasis added) Accepting Mexico's interpretation would imply that the WTO
dispute settlement system could be used to dete rmine rights and obligations outside the covered
agreements. In light of the above, we do not see how the PCIJ's ruling in Factory at Chorzów
supports Mexico's position in this case.

111In this context, Mexico has alluded to paragraph 7.38 of the Panel Report in Argentina – Poultry
Anti-Dumping Duties. See also supra, footnote 86.
112Mexico's appellant's submission, para. 73 ("[es] cuestion[able]").
113See Panel Report, para. 7.14.
Estados Unidos a la luz del siguiente principio general del derecho internacional "). The passage of the ruling
that Mexico refers to reads as follows:
… one party cannot avail himself of the fact that the other has not fulfilled
some obligation, or has not had recourse to some means of redress, if the
former party has, by some illegal act, prevented the latter from fulfilling the
obligation in question, or from having recourse to the tribunal which would
have been open to him.
(Permanent Court of International Justice, Factory at Chorzów (Germany v. Poland) (Jurisdiction), 1927, PCIJ
Series A, No. 9, p. 31) (underlining added by Mexico omitted)
115We also note that the ruling of the PCIJ in the Factory at Chorzów case relied on by Mexico was
made in a situation in which the party objecting to the exercise of jurisdiction by the PCIJ was the party that had
committed the act alleged to be illegal. In the present case, the party objecting to the exercise of jurisdiction by
the Panel (Mexico) relies instead on an allegedly illegal act committed by the other party (the United States).

57. For all these reasons, we uphold the Panel's conclusion, in para graphs 7.1, 7.18, and 9.1 of
the Panel Report, that "under the DSU, it ha[d] no di scretion to decline to exercise its jurisdiction in
the case that ha[d] been brought before it. " Having upheld this conclusion, we find it unnecessary to
rule in the circumstances of this appeal on the propriety of exercising such discretion.
116
V. Article XX(d) of the GATT 1994
A. Introduction
58. We turn now to Mexico's claim that the Pane l erred in finding that the challenged measures
are not justified under Article XX(d) of the GATT 1994. Before proceeding, we note that Mexico has
not appealed the Panel's conclusion that the challe nged measures are inconsistent with Article III of
the GATT 1994.
117
59. Mexico argued before the Panel that its "measu res are 'necessary to secure compliance' by the
United States with the United States' obligations und er the NAFTA, an international agreement that is
a law not inconsistent with the provisions of the GATT 1994." 118 The United States responded that
"the NAFTA is not a 'law or regulation,' and Mexico's taxes are not 'necessary to secure
compliance.'"119
60. The Panel began its analysis by looking at th e meaning of the terms "to secure compliance".
According to the Panel, "to secure compliance" means "to enforce compliance".120 The Panel noted
that "the notion of enforcement contains a concept of action within a hierarchical structure that is
associated with the relation between the state and its subjects". 121 It further observed that
Article XX(d) "is concerned with action at a domestic rather than international level." 122 Based on
this reasoning, the Panel concluded that "the phr ase 'to secure compliance' in Article XX(d) does not
apply to measures taken by a Member in order to i nduce another Member to comply with obligations
owed to it under a non-WTO treaty."123

116Panel Report, paras. 7.1 and 7.18.
117Therefore, we express no view on the Panel's interpretation of Article III in this case.
118Panel Report, para. 8.162 (referring to Mexico's first written submission to the Panel, paras. 117-118
and 125).
119Ibid., para. 8.163.
120Ibid., para. 8.175. (emphasis added)
121Ibid., para. 8.178.
122Ibid., para. 8.179.
123Ibid., para. 8.181.

61. Having interpreted the terms "to secure compliance", the Panel proceeded to examine whether
Mexico's measures are designed to secure compliance. The Panel explained that "when enforcement
action is taken within a Member's legal system th ere will normally be no doubt, provided the action is
pointed at the right target, that it will achieve that target." 124 In contrast, "the outcome of international
countermeasures, such as those adopted by Mexico, is inherently unpredictable". 125 Therefore, the
Panel reasoned, international countermeasures are " not eligible to be considered as measures 'to
secure compliance' within the meaning of Article XX(d)." 126 The Panel added that "even if the
assumption were to be made in the abstract that international countermeasures are potentially capable
of qualifying as measures designed to secure comp liance, the Panel's conclusion would be that
Mexico has not established that its measures contri bute to securing compliance in the circumstances
of this case." 127 Thus, the Panel rejected Mexico's argument that "the challenged tax measures are
designed to secure compliance by the United States with laws or regulations."128
62. The Panel then examined whether the challenge d measures would fall within the meaning of
the terms "laws or regulations" in Article XX(d). The Panel underscored the link between the terms
"to secure compliance" and the terms "laws and regulations" as set out in Article XX(d). It indicated
that the same reasoning that applies in determ ining whether Mexico's measures are measures "to
secure compliance" must also apply in determini ng whether the measures are "laws or regulations"
within the meaning of Article XX(d). 129 In the Panel's view, "the conclusion that these words refer to
enforcement action within a particular domestic legal system, and that they do not extend to
international action of the type taken by Mexi co, necessarily applies to both parts of this
expression."130 The Panel further observed that, "even if it were to assume that the expression 'laws or
regulations' in Article XX(d) could include interna tional agreements such as the NAFTA, it would in
any event conclude that, on the facts of the case, be cause of the uncertainty of their consequences, the
challenged measures are not designed 'to secure comp liance with laws or regulations which are not
inconsistent with the provisions' of GATT 1994."131
63. Therefore, the Panel concluded that "Mexico has not demonstrated that the challenged
measures are designed 'to secure compliance with la ws or regulations', within the meaning of

124Panel Report, para. 8.185.
125Ibid., para. 8.186.
126Ibid.
127Ibid.
128Ibid., para. 8.190. (original emphasis)
129Ibid., para. 8.194.
130Ibid.
131Ibid., para. 8.197.

Article XX(d) of the GATT 1994."
132 Having made this finding, the Panel did not consider that it
needed to examine whether Mexico's measur es are "necessary" within the meaning of
Article XX(d)133, and whether the measures satisfy the re quirements set out in the chapeau of
Article XX.134 Consequently, the Panel concluded th at "Mexico has not established that the
challenged measures are justified under Article XX of the GATT 1994."135
64. On appeal, Mexico seeks review of the Pane l's conclusion that Mexico's measures are not
justified under Article XX(d) of the GATT 1994. According to Mexico, the Panel incorrectly
interpreted the terms "to secure compliance" as excluding international countermeasures 136, and this
error led the Panel to incorrectly interpret th e terms "laws or regulations" in Article XX(d). 137 Mexico
argues that the terms "laws or regulations" are "broad enough to include international agreements such
as the NAFTA." 138 Mexico points out that "the use of the terms 'laws' and 'regulations' elsewhere in
the GATT 1994 and in other WTO agreements does not demonstrate that such terms exclude
international law rules."139
65. The United States responds that the Panel pr operly found that Mexico's measures are not
justified under Article XX(d). It asserts that "the ordi nary meaning of 'laws' and 'regulations' is that
these are rules (e.g., in the form of a statute) i ssued by a government and not obligations under an
international agreement." 140 The United States further explains that Mexico's interpretation of
Article XX(d) is in conflict with Article 23 of th e DSU, by allowing a WTO Member to take action
outside the rules of the DSU to secure complianc e with another Member's obligations under any
international agreement, including the WTO agreements. 141 It would also undermine Article 22 of the
DSU by "permit[ting] the suspension of concessions ... without DSB authorization and without any
requirement to adhere to the rules established" in that provision.142

132Panel Report, para. 8.198.
133Ibid., para. 8.202.
134Ibid., para. 8.203.
135Ibid., para. 8.204.
136Mexico's appellant's submission, para. 79 and footnote 49 thereto.
137Ibid., para. 126.
(footnote omitted)
140United States' appellee's submission, pa ra. 30 (referring to definitions in Black's Law Dictionary ,
(1990), p. 816).
141Ibid., para. 37.
142Ibid., para. 38. (footnote omitted)

B. Analysis
1. Are Mexico's Measures Justified under Article XX(d)?
66. Article XX(d) of the GATT 1994 reads:
General Exceptions
Subject to the requirement that such measures are not applied in a
manner which would constitute a mean s of arbitrary or unjustifiable
discrimination between countries wher e the same conditions prevail,
or a disguised restriction on international trade, nothing in this
Agreement shall be construed to pr event the adoption or enforcement
by any contracting party of measures:

(d) necessary to secure compliance with laws or regulations
which are not inconsistent with th e provisions of this Agreement,
including those relating to customs enforcement, the enforcement of
monopolies operated under paragr aph 4 of Article II and
Article XVII, the protection of patents, trade marks and copyrights,
and the prevention of deceptive practices[.]

67. The Appellate Body explained, in Korea – Various Measures on Beef , that two elements
must be shown "[f]or a measure, otherwise inconsistent with GATT 1994, to be justified provisionally
under paragraph (d) of Article XX".
143 The first element is that "the measure must be one designed to
'secure compliance' with laws or regulations that are not themselves inconsistent with some provision
of the GATT 1994", and the second is that "the measure must be 'necessary' to secure such
compliance."144 The Appellate Body also explained that "[a] Member who invokes Article XX(d) as a
justification has the burden of demonstrating that these two requirements are met."145
68. In our view, the central issue raised in this appeal is whether the terms "to secure compliance
with laws or regulations" in Article XX(d) of the GATT 1994 encompass WTO-inconsistent measures
applied by a WTO Member to secure compliance wi th another WTO Member's obligations under an
international agreement.

143Appellate Body Report, Korea – Various Measures on Beef, para. 157.
144Ibid.
145Ibid. (referring to Appellate Body Report, US – Gasoline , pp. 22-23, DSR 1996:I, 3, at 20-21;
Appellate Body Report, US – Wool Shirts and Blouses , pp. 14-16, DSR 1997:I, 323, at 335-337; and GATT

69. In order to answer this question, we consider it more helpful to begin our analysis with the
terms "laws or regulations" in Article XX(d) (which we consider to be pivotal here) rather than to
begin with the analysis of the terms "to secure co mpliance", as did the Panel. The terms "laws or
regulations" are generally used to refer to domestic laws or regula tions. As Mexico and the United
States note, previous GATT and WTO disputes in which Article XX(d) has been invoked as a defence
have involved domestic measures.
146 Neither disputes that the expression "laws or regulations"
encompasses the rules adopted by a WTO Member's legislative or ex ecutive branches of government.
We agree with the United States that one does not immediately think about international law when
confronted with the term "laws" in the plural. 147 Domestic legislative or regulatory acts sometimes
may be intended to implement an international agreemen t. In such situations, the origin of the rule is
international, but the implementing inst rument is a domestic law or regulation. 148 In our view, the
terms "laws or regulations" refer to rules that fo rm part of the domestic legal system of a WTO
Member.149 Thus, the "laws or regulations" with which the Member invoking Article XX(d) may seek
to secure compliance do not include obligations of another WTO Member under an international
agreement.
70. The illustrative list of "laws or regulations" provided in Article XX(d) supports the conclusion
that these terms refer to rules that form part of the domestic legal system of a WTO Member. 150 This
list includes "[laws or regulations] relating to cu stoms enforcement, the enforcement of monopolies
operated under paragraph 4 of Artic le II and Article XVII, the protection of patents, trade marks and
copyrights, and the prevention of deceptive practices ". These matters are typically the subject of
domestic laws or regulations, even though some of these matters may also be the subject of

146United States' appellee's submission, footnote 62 to para. 39; Mexico's response to questioning at the
oral hearing.
148In some WTO Members, certain international rule s may have direct effect within their domestic
legal systems without requiring implementing legislation. In such circumstances, these rules also become part
of the domestic law of that Member.
 149The European Communities notes that:
[i]t is entirely possible that international agreements may be incorporated
into the domestic legal order in such a way that they can be invoked as
against individuals, and enforce[d] against them. If this is the case, the
international agreement, albeit international in origin, may be regarded as
having become an integral part of the domestic legal order of such Member,
and thus a law or regulation within th e meaning of Article XX (d) [of the]
GATT [1994].
(European Communities' third participant's submission, para. 41)
150The participants agree that the list in Article XX (d) is not exhaustive. (See Mexico's response to
Question 67 posed by the Panel after the second Panel meeting; Panel Report, p. C-61; United States' response
to Question 31 posed by the Panel after the first Panel meeting; Panel Report, p. C-42; and United States'
response to Question 67 posed by the Panel after the second Panel meeting; Panel Report, pp. C-79-C-80)

international agreements. The matters listed as ex amples in Article XX(d) involve the regulation by a
government of activity undertaken by a variety of economic actors (e.g., private firms and State
enterprises), as well as by government agencies. For example, matters "relating to customs
enforcement" will generally involve rights and oblig ations that apply to importers or exporters, and
matters relating to "the protection of patents, trade marks and copyrights" will usually regulate the use
of these rights by the intellectual property right holders and other private actors. 151 T h u s , t h e
illustrative list reinforces the notion that the terms "laws or regulations" refer to rules that form part of
the domestic legal system of a WTO Member and do not extend to the international obligations of
another WTO Member.152
71. Our understanding of the terms "laws or regula tions" is consistent with the context of
Article XX(d). As the United States points out 153, other provisions of the covered agreements refer
expressly to "international obligations" or "internatio nal agreements". For example, paragraph (h) of
Article XX refers to "obligations under any inte rgovernmental commodity agreement". The express
language of paragraph (h) would seem to contradict Mexico's suggestion that international agreements
are implicitly included in the terms "laws or regulations". 154 The United States and China also draw
our attention to Article X:1 of the GATT 1994 155, which refers to "[l]aws, regulations, judicial
decisions and administrative rulings" and to "[a]gr eements affecting international trade policy which
are in force between a government … of any Member and the government … of any other Member".
Thus, a distinction is drawn in the same provision between "laws [and] regulations" and "international
agreements". Such a distinction would have been unnecessary if, as Mexico argues, the terms "laws"
and "regulations" were to encompass international ag reements that have not been incorporated, or do
not have direct effect in, the domestic legal system of the respective WTO Member. Thus,
Articles X:1 and XX(h) of the GATT 1994 do not le nd support to interpreting the terms "laws or

151European Communities' third participant's submission, para. 38.
152The United States also points out that the terms "laws or regulations" are qualified by the
requirement that they not be "inconsistent" with the GATT 1994. The United States explains that the word
"inconsistent" appears elsewhere in the GATT 1994 in connection with domestic measures. In contrast, when
referring to treaty obligations, the WTO agreements use the word "conflict". (United States' appellee's
submission, para. 33) In our view, this distinction s upports the position that the terms "laws or regulations"
refer to the rules that are part of the domestic legal system of a WTO Member, including international rules that
have been incorporated or have direct effect in a particular domestic legal system.
154If an international commodity agreement contains GATT-inconsistent provisions, Article XX(h)
would still serve the purpose of justifying such an ag reement, even if it could not be justified under
Article XX(d).
155United States' appellee's submission, para. 35; China's third participant's submission, para. 21.

regulations" in Article XX(d) as including the interna tional obligations of a Member other than that
invoking the provision.
156
72. We turn to the terms "to secure compliance", which were the focus of the Panel's reasoning
and are the focus of Mexico's appeal. The term s "to secure compliance" speak to the types of
measures that a WTO Member can seek to justify u nder Article XX(d). They relate to the design of
the measures sought to be justified.157 There is no justification under Article XX(d) for a measure that
is not designed "to secure compliance" with a Memb er's laws or regulations. Thus, the terms "to
secure compliance" do not expand the scope of th e terms "laws or regulations" to encompass the
international obligations of another WTO Memb er. Rather, the terms "to secure compliance"
circumscribe the scope of Article XX(d).
73. Mexico takes issue with several aspects of th e Panel's reasoning related to the interpretation
of the terms "to secure compliance". We recall that , according to the Panel, "[t]he context in which
the expression is used makes clear that 'to secure co mpliance' is to be read as meaning to enforce
compliance."158 The Panel added that, in contrast to enforcement action taken within a Member's
legal system, "the effectiveness of [Mexico's] measures in achieving their stated goal—that of
bringing about a change in the behaviour of the United States—seems ... to be inescapably
uncertain."159 Thus, the Panel concluded that "the outcome of international countermeasures, such as
those adopted by Mexico, is inherently unpredictable".160
74. It is Mexico's submission that the Panel erred in requiring a degree of certainty as to the
results achieved by the measure sought to be justified. 161 Mexico also asserts that the Panel, in its
reasoning, incorrectly relied on the Appellate Body Report in US – Gambling .162 We agree with

156The Panel noted that there are examples of intern ational "regulations" within the WTO agreements
themselves. The Panel cited, as examples, Article VI of the Marrakesh Agreement Establishing the World
Trade Organization that refers to "regulations" to be adopted by the Ministerial Conference, and Article VII
that refers to "financial regulations " to be adopted by the General Council and to the "regulations" of the
GATT 1947. (Panel Report, footnotes 423 and 424 to para. 8.195) Article XXIV of the GATT 1994 also uses
the term "regulations" when referring to rules applied by free trade areas or customs unions. Nevertheless, we
agree with Japan that, in these inst ances, the context makes it clear that the regulations are international in
character. (Japan's third participant's submission, paras. 17-19)
157Appellate Body Report, Korea – Various Measures on Beef, para. 157.
158Panel Report, para. 8.175.
159Ibid., para. 8.185.
160Ibid., para. 8.186. See also Mexico's appellant's submission, paras. 104-116.
161The European Communities and Japan agree with Me xico that the Panel erred in implying that
whether a measure falls within the meaning of the phra se "to secure compliance" depends on the degree of
certainty that the measure will achieve its intended results. (European Communities' third participant's
162Panel Report, paras. 8.187-8.188 (referring to Appellate Body Report, US – Gambling, para. 317).

Mexico that the US – Gambling Report does not support the conclusion that the Panel sought to draw
from it. The statement to which the Panel referred w as made in the context of the examination of the
"necessity" requirement in Article XIV(a) of the General Agreement on Trade in Services , and did
not relate to the terms "to secure compliance". As the Appellate Body has explained previously,
"the contribution made by the compliance measure to the enforcement of the law or regulation at
issue"
163 is one of the factors that must be weighed and balanced to determine whether a measure is
"necessary" within the meaning of Article XX(d). A measure that is not suitable or capable of
securing compliance with the relevant laws or regul ations will not meet the "necessity" requirement.
We see no reason, however, to derive from the Appe llate Body's examination of "necessity", in
US – Gambling, a requirement of "certainty" applicable to the terms "to secure compliance".164 In our
view, a measure can be said to be designed "to secure compliance" even if the measure cannot be
guaranteed to achieve its resu lt with absolute certainty. 165 Nor do we consider that the "use of
coercion"166 is a necessary component of a measure designed "to secure compliance". Rather,
Article XX(d) requires that the design of the meas ure contribute "to secur[ing] compliance with laws
or regulations which are not inconsistent with the provisions of" the GATT 1994.
75. Nevertheless, while we agree with Mexico that the Panel's emphasis on "certainty" and
"coercion" is misplaced, we consider that Mexico's arguments miss the point. Even if "international
countermeasures" could be described as intended "t o secure compliance", what they seek "to secure
compliance with"—that is, the international oblig ations of another WTO Member—would be outside
the scope of Article XX(d). This is because "laws or regulations" within the meaning of
Article XX(d) refer to the rules that form part of the domestic legal order of the WTO Member
invoking the provision and do not include the international obligations of another WTO Member.

163Appellate Body Report, Korea – Various Measures on Beef, para. 164.
164We note that, at the request of the United States, the Panel clarified in the interim review phase that:
… its reasoning does not focus on wh ether the achievement of Mexico's
objective through the measures at issue is certain or uncertain . Rather, the
Panel considers that international countermeasures (as the ones allegedly
imposed by Mexico) are intrinsically unable to secure compliance of laws
and regulations. In contrast, national measures are, beyond particular
factual considerations, usually in a pos ition to achieve [] that objective,
through the use of coercion, if necessary.
(Panel Report, para. 6.12) (original italics; underlining added)
165The European Communities notes that "even within the domestic legal order of WTO Members,
enforcement of laws and regulations may not simply be taken for granted, but may depend on numerous
factors". (European Communities' third participant's submission, para. 28)
166Panel Report, para. 8.178.

76. Mexico finds support for its interpretation in the Appellate Body's rulings in US – Shrimp
and US – Shrimp (Article 21.5 – Malaysia) .
167 We fail to see how these rulings support Mexico's
position. In those cases, the United States sought to justify its measures under Article XX(g) of the
GATT 1994, and the measures at issue were domes tic laws and regulations of the United States. 168
The reference to the Inter-Ameri can Convention for the Protection and Conservation of Sea Turtles
(the "Inter-American Convention") was made in the context of the examination of whether the
measures constituted "a means of arbitrary or unj ustifiable discrimination between countries where
the same conditions prevail" for purposes of the chapeau of Article XX.169 The United States, in those
cases, did not argue that its measures were justif ied under Article XX(d) because they were intended
to secure compliance with the obligations of anot her Member under the Inter-American Convention.
In the present case, Mexico seeks to justify its me asures under paragraph (d) of Article XX, and not
under paragraph (g). Moreover, Mexico not only re fers to the NAFTA in relation to the chapeau of
Article XX, but also seeks justification for its meas ures under paragraph (d) on the basis that they are
allegedly intended to secure compliance with the United States' NAFTA obligations.
77. We observe, furthermore, that Mexico's interp retation of Article XX(d) disregards the fact
that the GATT 1994 and the DSU specify the actions that a WTO Member may take if it considers
that another WTO Member has acted inconsistent ly with its obligations under the GATT 1994 or any
of the other covered agreements. As the United States points out 170, Mexico's interpretation of the
terms "laws or regulations" as including internatio nal obligations of another WTO Member would
logically imply that a WTO Member could invoke Article XX(d) to justify also measures designed "to
secure compliance" with that other Member's WTO ob ligations. By the same logic, such action under
Article XX(d) would evade the specific and detaile d rules that apply when a WTO Member seeks to
take countermeasures in response to another Me mber's failure to comply with rulings and
recommendations of the DSB pursuant to Article XXIII:2 of the GATT 1994 and Articles 22 and 23
of the DSU. 171 Mexico's interpretation would allow WTO Members to adopt WTO-inconsistent
measures based upon a unilateral determination that another Member has breached its WTO
obligations, in contradiction with Articles 22 and 23 of the DSU and Article XXIII:2 of the
GATT 1994.

167Mexico's appellant's submission, paras. 174-178.
168See Appellate Body Report, US – Shrimp, paras. 2-6.
169See ibid., paras. 169-172; and Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia ),
171Mexico's interpretation would also undermine the limitations in paragraphs 3 and 4 of Article 22 as
to the magnitude and the trade sectors in which such countermeasures could be taken. (Ibid., paras. 37-38)

78. Finally, even if the terms "laws or regulations" do not go so far as to encompass the WTO
agreements, as Mexico argues 172, Mexico's interpretation would imply that, in order to resolve the
case, WTO panels and the Appellate Body would have to assume that there is a violation of the
relevant international agreement (such as the NAFTA) by the complain ing party, or they would have
to assess whether the relevant international agre ement has been violated. WTO panels and the
Appellate Body would thus become adjudicators of non-WTO disputes. 173 As we noted earlier 174, this
is not the function of panels and the Appellate Body as intended by the DSU.175
79. For these reasons, we agree with the Panel that Article XX(d) is not available to justify WTO-
inconsistent measures that seek "to secure complia nce" by another WTO Member with that other
Member's international obligations. In sum, while we agree with the Panel's conclusion, several
aspects of our reasoning set out above differ from the Pa nel's own reasoning. First, we conclude that
the terms "laws or regulations" cover rules that form part of the domestic legal system of a WTO
Member, including rules deriving from international agre ements that have been incorporated into the
domestic legal system of a WTO Member or have direct effect according to that WTO Member's legal
system.
176 Second, we have found that Article XX(d) do es not require the "use of coercion" nor that
the measure sought to be justified results in secu ring compliance with absolute certainty. Rather,
Article XX(d) requires that the measure be designed "to secure compliance with laws or regulations
which are not inconsistent with the provisions of" the GATT 1994.
177 Finally, we do not endorse the
Panel's reliance on the Appellate Body's interpretation in US – Gambling of the term "necessary" to
interpret the terms "to secure compliance" in Article XX(d).178

172At the oral hearing, Mexico argued that the terms "laws or regulations" would not include the WTO
agreements because the latter are lex specialis.
173Article 3.2 of the DSU states that the WTO's disput e settlement system "serves to preserve the rights
and obligations of Members under the covered agreements , and to clarify the existing provisions of those
agreements". (emphasis added)
174See supra, para. 56.
175We note that, in its analysis, the Panel also referred to the negotiating history of the GATT 1947, and
particularly to the rejection of a proposal presented by India during the negotiations on the International Trade
Organization (the "ITO") Charter according to which Members would be permitted to justify, on a temporary
basis, retaliatory measures under Article XX. (See Panel Report, para. 8.176 (referring to ITO Doc. E/PC/T/180
(19 August 1947), p. 97; and "Havana Charter for an International Trade Organization", United Nations
Conference on Trade and Employment, Final Act and Related Documents (Lake Success, New York, April
1948), pp. 33-34)
176See supra, paras. 69-71.
177See supra, para. 74.
178See supra, para. 74.

80. Therefore, we uphold, albeit for different reasons, the Pane l's conclusion, in paragraph 8.198
of the Panel Report, that Mexico's measures do not constitute measures "to secure compliance with
laws or regulations", within the meaning of Article XX(d) of the GATT 1994.
2. Mexico's Request to Complete the Analysis

81. Mexico requests the Appellate Body to complete the analysis by examining whether Mexico's
measures are "necessary", within the meaning of Ar ticle XX(d) of the GATT 1994, and meet the
requirements of the chapeau of that Article. 179 Mexico's request is premised on the Appellate Body
reversing the Panel's conclusion that the measures are not designed "to secure compliance with laws
or regulations" within the meaning of Article XX(d ). We have upheld the Panel's conclusion that
Mexico's measures do not constitute measures "to secur e compliance with laws or regulations" within
the meaning of Article XX(d) of the GATT 1994. Th erefore, the premise on which Mexico's request
is predicated is not fulfilled and, consequently, it is not necessary for us to complete the analysis as
requested by Mexico.180
3. Mexico's Claim under Article 11 of the DSU 181
82. Mexico argues, "separately and in addition" 182 to the previous errors, that the Panel failed to
make "an objective assessment of the facts", as requi red by Article 11 of the DSU, in finding that
"Mexico has not established that its measures contri bute to securing compliance in the circumstances
of this case."183 Mexico argues that "[t]he evidence on the record demonstrates that the effects of the
measures at issue have contributed to securing co mpliance in the circumstances of this case, by
changing the dynamic of the NAFTA dispute and forcing the United States to pay attention to

180See, for example, Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes ,
para. 74.
181In its Notice of Appeal, Mexico claimed that the Panel "failed to make an objective assessment of
the matter before it, including the fact s of the case, inconsistently with its obligation under Article 11 of the
DSU, with respect to Mexico's request for determinatio ns of fact, status and relevance of the NAFTA dispute
between the parties." (Mexico's Notice of Appeal (attached as Annex I to this Report), para. 4 (referring to Panel
Report, paras. 8.231 and 8.232) (footnote omitted)) Mexico also asserted that "in concluding that international
countermeasures cannot qualify for co nsideration as measures designed to 'secure compliance' within the
meaning of Article XX(d) of the GATT 1994, the Panel improperly increased the obligations of WTO Members
and reduced the rights of Members under the covered agreements." ( Ibid., para. 5 (referring to Panel Report,
paras. 8.181 and 8.186) (footnote omitted)) Mexico did no t offer arguments to support these two claims in its
appellant's submission. In response to questioning at the oral hearing, Mexico confirmed that it did not intend to
pursue these claims further.
182Mexico's appellant's submission, heading III.E ("independiente y adicional").
183Panel Report, paragraph 8.186. See also, Mexico's Notice of Appeal, para. 3.

Mexico's grievances."184 The United States submits that, contrary to Mexico's contention, the Panel
did not "ignore" arguments or evidence submitted by Mexico. 185 The United States further explains
that, in any event, Mexico's claim under Article 11 of the DSU "appears to be no more than a
reiteration of its legal arguments that its ... measures are designed to 'secure compliance'".186
83. In Section B.1 above, we held that Mexico's measures do not constitute measures "to secure
compliance with laws or regulations", within th e meaning of Article XX(d) of the GATT 1994.
Therefore, Mexico's claim under Article 11 of th e DSU is predicated on an interpretation of
Article XX(d) of the GATT 1994 that we have found to be incorrect. Since Mexico's measures cannot
be justified under Article XX(d) as a matter of law, we reject Mexico's claim under Article 11 of the
DSU.
4. Conclusion
84. For the reasons set out above, we uphold the Panel's conclusion, in paragraphs 8.204 and 9.3
of the Panel Report, that "Mexico has not establishe d that the challenged measures are justified under
Article XX of the GATT 1994".
VI. Findings and Conclusions
85. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's conclusion, in paragraphs 7.1, 7.18, and 9.1 of the Panel Report,
that, "under the DSU, it ha[d] no discretion to decline to exercise its jurisdiction in
the case that ha[d] been brought before it";
(b) upholds
 the Panel's conclusion, in paragraph 8. 198 of the Panel Report, that Mexico's
measures do not constitute measures "to secure compliance with laws or regulations",
within the meaning of Article XX(d) of the GATT 1994;
(c) rejects Mexico's claim that the Panel failed to fulfil its obligations under Article 11 of
the DSU, in finding, in paragraph 8.186 of the Panel Report, that "Mexico has not
established that its measures contribute to securing compliance in the circumstances
of this case"; and

medidas en cuestión no están desprovistas de efectos que contribuyen a lograr la observancia en las
Estados Unidos a prestar atención a los agravios de México").
186Ibid.

(d) as a consequence, upholds
 the Panel's conclusion, in pa ragraphs 8.204 and 9.3 of the
Panel Report, that "Mexico has not established that the challenged measures are
justified under Article XX of the GATT 1994".
86. The Appellate Body recommends that the Dispute Settlement Body request Mexico to bring
the measures that were found in the Panel Report to be inconsistent with the General Agreement on
Tariff and Trade 1994 into conformity with its obligations under that Agreement.

Signed in the original in Geneva this 8th day of February 2006 by:

Yasuhei Taniguchi
Presiding Member

 _________________________ _________________________
 Merit E. Janow Giorgio Sacerdoti
 Member Member

ANNEX I

6 December 2005
 (05-5832)
 Original: Spanish

Notification of an Appeal by Mexico under Article 16.4 and Article 17 of the

Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU) and Rule 20(1) of the Working
Procedures for Appellate Review

 The following notification dated 6 December 2005, from the delegation of Mexico, is being
circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review ,
Mexico hereby notifies its decision to appeal to the Appellate Body certain issues of law dealt with in
the Report of the Panel on
(WT/DS308/R) (the "Panel Report") and certain legal interpretations developed by the Panel in this
dispute.

1. Mexico seeks review by the Appellate Body of the Panel's legal conclusion that it has no
discretion to decline to exercise jurisdiction in this case and its determination that, even if it had such
discretion, the facts in the record do not justify a re fusal by the Panel to exercise jurisdiction in this
case. This conclusion is in error and is based on erroneous findings on issues of law and related legal
interpretations concerning Articles 3, 7, 11 and 19 of the DSU and Articles XXII and XXIII of the
GATT 1994. These errors are contained, inter alia, in paragraphs 7.1 to 7.18, 8.215 to 8.230 and 9.1
of the Panel Report.

2. Mexico seeks review by the Appellate Body of the Panel's legal conclusion that the
challenged tax measures are not justified under Article XX of the GATT 1994 as measures necessary
to secure United States compliance with laws or regulations which are not inconsistent with the
provisions of the GATT 1994. This conclusion is in error and is based on erroneous findings on
issues of law and related legal interpretations c oncerning Article XX of the GATT 1994. Paragraphs
8.168 to 8.204 and 9.3 of the Panel Report, among others, contain such errors, including the
following:

(a) The Panel's interpretation and application of the expression "to secure compliance" in
Article XX(d) of the GATT 1994 and its conclusion that it does not apply to measures
taken by a Member in order to induce another Member to comply with obligations
owed to it under a non-WTO treaty.
1
(b) The Panel's conclusion that the challenged tax measures "are not designed to secure
compliance" within the meaning of Article XX(d) of the GATT 1994 and are not
eligible for consideration under Article XX(d) of the GATT 1994.2
(c) The Panel's interpretation and applica tion of the phrase "laws or regulations"
contained in Article XX(d) of the GATT 1994 and its conclusion that this phrase does
not cover international treaties such as NAFTA.
3
(d) The Panel's failure to consider whether the Mexican measures are "necessary" to
secure compliance with a law that is not inconsistent with the provisions of the
GATT 1994.4
3. Mexico seeks review by the Appellate Body, in the light of DSU Article 11, of the Panel's
conclusion that "Mexico has not established that its measures contribute to securing compliance in the
circumstances of this case".5 This conclusion does not reflect an objective approach to analysis of the
available evidence on the effects of the Mexican m easures, and is inconsistent with the treatment
given by the Panel to relevant evidence. Accordingl y, this conclusion is inc onsistent with the Panel's
duty to make an objective assessment of the matter before it.

4. Mexico considers that the Panel also failed to make an objective assessment of the matter
before it, including the facts of the case, inconsis tently with its obligatio n under Article 11 of the
DSU, with respect to Mexico's request for determin ations of fact, status and relevance of the NAFTA
dispute between the parties.
6

5. Mexico also considers that, in concluding that international countermeasures cannot qualify
for consideration as measures designed to "secure co mpliance" within the meaning of Article XX(d)
of the GATT 1994
7, the Panel improperly increased the obligations of WTO Members and reduced
the rights of Members under the covered agreements.

6. In the event that the Appellate Body reve rses the Panel's conclusion that Mexico's tax
measures are not justified under Article XX(d) of the GATT 1994, Mexico requests that the Appellate
Body complete the legal analysis under Article XX of the GATT 1994.

 Those provisions of the covered agreements which Mexico considers the Panel to have
interpreted or applied erroneously include Articles XX, XXII and XXIII of the GATT 1994 and
Articles 3, 7, 11 and 19 of the DSU.