PERU – ADDITIONAL DUTY ON IMPORTS OF CERTAIN AGRICULTURAL PRODUCTS REPORT OF THE PANEL
Document: Addendum
Date: 27 November 2014
Document codes: WT/DS457/R/Add.1; WT/DS457/R.
Complainant: Guatemala
Respondent: Peru
Third parties: Argentina, China, El Salvador, EU, India, U.S., Brazil, Ecuador, South Korea, Honduras, Colombia
Dispute stage: Appellate Body
Agreements cited: Art. 4.2  AgricultureArt. II:1, XI:1, X:1, X:3(a)  GATT 1994Art. 1, 2, 3, 5, 6, 7  Customs valuationArt. 3.8  Dispute Settlement Understanding (DSU)

PERU – ADDITIONAL DUTY ON IMPORTS
OF CERTAIN AGRICULTURAL PRODUCTS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A Working Procedures of the Panel A-1
ANNEX B
ARGUMENTS OF THE PARTIES
GUATEMALA
Contents Page
Annex B-1 First part of the executive su mmary of the arguments of Guatemala B-2
Annex B-2 Second part of the executive summary of the arguments of Guatemala B-13

PERU
Contents Page
Annex B-3 First part of the executive summary of the arguments of Peru B-25
Annex B-4 Second part of the executive summary of the arguments of Peru B-38
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Argentina C-2
Annex C-2 Executive summary of the arguments of Brazil C-5
Annex C-3 Executive summary of the arguments of Colombia C-6
Annex C-4 Executive summary of the arguments of Ecuador C-8
Annex C-5 Executive summary of the arguments of the United States C-10
Annex C-6 Executive summary of the arguments of the European Union C-15

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Adopted on 8 October 2013
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules
and Procedures Governing the Settlement of Disput es (DSU). In addition, the following Working
Procedures shall apply.
General
2. The deliberations of the Panel and the documents submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. Following consultations with the parties, the Panel may adopt procedures for the protection of
business confidential information in addition to those contained in these Working Procedures.
During the interim review stage, either party may request the Panel to remove the business
confidential information from the final report.
4. The Panel shall meet in closed session. The parties, and Members having notified their interest
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter
"third parties"), shall be present at the meetings only when invited by the Panel to appear before
it.
5. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure th a t e a c h m e m b e r o f s u c h d e l e g a t i o n a c t s i n
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions
6. Before the first substantive meeting of the Pa nel with the parties, each party shall submit a
written submission in which its presents the facts of the case and its arguments, in accordance
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable
adopted by the Panel.
7. Should a party wish to request a preliminary ruling of the Panel, it shall do so at the earliest
possible opportunity and in any event no later than in its first written submission to the Panel. If
Guatemala requests such a ruling from the Panel, Peru shall respond to the request in its first
written submission. If Peru requests such a rulin g, Guatemala shall submit its response to the
request prior to the first substantive meeting of the Panel, at a time to be determined by the Panel
in the light of the request. The Panel may grant ex ceptions to this rule upon a showing of good
cause.
8. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evidence necessary for purposes of rebuttals, answers
to questions or comments on answers provided by the other party. The Panel may grant
exceptions to this rule where good cause is sh own. Where such exception has been granted, the

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Panel shall accord the other party a period of time for comment, as appropriate, on any new
factual evidence submitted after the first substantive meeting.
9. Where the original language of exhibits submitted to the Panel is not a WTO working language,
the submitting party or third party shall submit a translation into the WTO working language of the
submission to which the exhibits are annexed at the same time. The Panel may grant reasonable
extensions of time for the translation of such exhibits upon a showing of good cause. Any objection
as to the accuracy of a translation shall be raised promptly in writing, no later than the next filing
or meeting (whichever occurs earlier) following the submission which contains the translation in
question. Any objection shall be accompanied by a detailed explanation of the grounds of objection
and an alternative translation.
10. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions, attached in annex,
to the extent that it is practical to do so.
11. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by Guatemala could be numbered GUA-1,
GUA-2, etc. If the last exhibit in connection with the first submission was numbered GUA-5, the
first exhibit of the next submission would be numbered GUA-6.
Questions
12. The Panel may at any time pose questions to the parties and third parties, orally or in writing,
including prior to each substantive meeting.
Substantive meetings
13. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 5 p.m. on the previous working day.
14. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall first invite Guatemala to ma ke an opening statement to present its case.
Subsequently, the Panel shall invite Peru to present its point of view. Before each party
takes the floor, it shall provide the Panel and other participants at the meeting with a
provisional written version of its statement. Subsequently, the Panel may grant each
party time to make a brief oral rebuttal of the statement of the other party. The Panel
may, after consultation with the parties, establish time-limits for the opening statements
and the oral rebuttals of the parties, an d the parties shall be informed of these
time-limits prior to the first substantive meet ing. In the event that interpretation is
needed, each party shall provide additional copies to the interpreters through the Panel
secretariat. Each party shall supply the Panel and the other party with a final written
version of its statement and its rebuttal, preferably at the end of the meeting, and in any
event no later than 5 p.m. on the first working day following the meeting.
b. After the conclusion of the statements and rebuttals, the Panel shall give each party the
opportunity to ask the other party questions or to make comments through the Panel.
Each party shall then have an opportunity to answer those questions orally. Each party
shall send in writing, within a time-frame to be determined by the Panel, any questions
to the other party to which it wishes to receive a response in writing. Each party shall
respond in writing to the questions of the other party within a deadline to be determined
by the Panel.

c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The panel shall send in writing, within a
time-frame to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall respond in writing to such questions
within a deadline to be determined by the Panel.

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d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Guatemala presenting its statement first.
15. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask Peru if it wishes to avail itself of the right to present its case first. If
so, the Panel shall invite Peru to present it s opening statement, followed by Guatemala.
If Peru chooses not to avail itself of that right, the Panel shall invite Guatemala to
present its opening statement first. Before each party takes the floor, it shall provide the
Panel and other participants at the meeting with a provisional written version of its
statement. Subsequently, the Panel may grant each party time to make a brief oral
rebuttal of the statement of the other party. The Panel may, after consultation with the
parties, establish time-limits for the openin g statements and the oral rebuttals of the
parties, and the parties shall be informed of these time-limits prior to the second
substantive meeting. In the event that interp retation is needed, each party shall provide
additional copies to the interpreters through the Panel secretariat. Each party shall
supply the Panel and the other party with a final written version of its statement and its
rebuttal, preferably at the end of the meeting, and in any event no later than 5 p.m. on
the first working day following the meeting.
b. After the conclusion of the statements and rebuttals, the Panel shall give each party the
opportunity to ask the other party questions or to make comments through the Panel.
Each party shall then have an opportunity to answer those questions orally. Each party
shall send in writing, within a time-frame to be determined by the Panel, any questions
to the other party to which it wishes to receive a response in writing. Each party shall
respond in writing to the questions of the other party within a deadline to be determined
by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
time-frame to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall respond in writing to such questions
within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the party that presented its opening statement
first presenting its closing statement first.
Third parties
16. The Panel shall invite each third party to tr ansmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
17. Each third party shall also be invited to present its views orally during a session of this first
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5 p.m. the previous
working day.

18. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third-party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. The Panel may, after
consultation with the parties, establish time-limits for the third party statements, and
the parties and third parties shall be informed of these time-limits prior to the third party
session. In the event that interpretation is needed, each third party shall provide

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additional copies for the interpreters through the Panel secretariat. The third party shall
make available to the Panel, the parties and other third parties the final written versions
of their statements, preferably at the end of the session, and in any event no later than
5 p.m. on the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a time-frame to be determin ed by the Panel, any questions to a third
party to which it wishes to receive a response in writing.
d. The Panel may subsequently pose questions to the third parties. Each third party shall
then have the opportunity to answer these questions orally. The Panel shall send in
writing, within a time-frame to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall respond in writing
to such questions within a deadline to be determined by the Panel.
Descriptive part
19. The description of the arguments of the partie s and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and the third parties,
which shall be attached as annexes to the repo rt. These executive summaries shall not serve in
any way as a substitute for the submissions of the parties and the third parties in the Panel's
examination of the case.
20. Each party shall provide executive summaries of the facts and arguments as presented to the
Panel, in accordance with the timetable adopted by the Panel. These summaries may also include a
summary of the replies to questions. These summaries shall not exceed 15 pages each. The Panel
shall not summarize the parties' replies to the questions in the descriptive part, nor shall it annex
them to its report.
21. Each third party shall submit an executive summary of its arguments as presented to the
Panel in its written submission and its declaration of conformity with the timetable adopted by the
Panel for its work. This summary may also include a summary of the replies to questions, where
applicable. The executive summary to be provided by each one of the third parties shall not
exceed six pages.
Interim review
22. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
23. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
24. The interim report, like the final report prior to its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents
25. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file six paper copies of all documents it submits to the
Panel. However, when exhibits are provided on CD-ROMS/DVDs, seven CD-ROMS/DVDs

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and at least five paper copies of those exhibits shall be filed. The DS Registrar shall
stamp the documents with the date and time of the filing. The paper version shall
constitute the official version for the purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD-ROM, a DVD or as an email attachment. If the electronic
copy is provided by email, it should be addressed to *****@wto.org, and cc'd to
*****.*****@wto.org, *****.*****@wto.org, and *****.*****@wto.org. If a
CD-ROM or DVD is provided, it shall be filed with the DS Registry.
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance
of the first substantive meeting with the Panel. Each third party shall serve any
document submitted to the Panel directly on the parties and all other third parties. Each
party and third party shall confirm, in writing, that copies have been served as required
at the time it provides each document to the Panel.
e. Each party and third party shall file its do cuments with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5 p.m. (Geneva time) on the
due dates established by the Panel. A party or third party may transmit its documents to
the other party or third party in electronic form only, subject to prior written consent of
the notified party or third party and provided the Panel secretariat is informed.
f. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.

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ANNEX B
ARGUMENTS OF THE PARTIES
GUATEMALA
Contents Page
Annex B-1 First part of the executive su mmary of the arguments of Guatemala B-2
Annex B-2 Second part of the executive summary of the arguments of Guatemala B-13

PERU
Contents Page
Annex B-3 First part of the executive summary of the arguments of Peru B-25
Annex B-4 Second part of the executive summary of the arguments of Peru B-38

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ANNEX B-1
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF GUATEMALA
1 THE MEASURE AT ISSUE
1.1. The measure at issue is the variable additional duty imposed by Peru, which is calculated
under the rules of the price band system (PBS ) established by Supreme Decree No. 115-2001-EF
and other amending instruments. This is clear from the way in which Guatemala characterized the
measure in its panel request.
1 This implies that the measure at issue is not only the variable
additional duty, but also the underlying method of its calculation. A proper examination of the
measure concerned necessarily requires an analysis of the functioning of the price band system
and its constituent elements. It is not possible to separate the variable additional duty from the
PBS: the one does not exist without the other.
2
1.2. Although Guatemala characterized the measure at issue differently from the way in which the
Chilean measure was characterized in Chile – Price Band System (which refered to "Chile's PBS"),
this does not mean that the legal criteria established by the Appellate Body in that dispute cannot
be applied in the present case.3
2 FACTUAL DESCRIPTION OF THE MEASURE AT ISSUE
2.1. The variable additional duty is calculated in accordance with the PBS. This system functions
on the basis of a "price band", which consists of an area defined by a lower threshold and an upper
threshold. The lower threshold is referred to as the "floor price", and the upper threshold as the
"ceiling price". Both prices consist of a figure expressed in United States dollars and both are
based on international prices for the past 60 days.
2.2. As stated in Supreme Decree No. 115-2001-EF itself, the purpose of the PBS is "to neutralize
fluctuations in international prices and limit the negative effects of falls in such prices".
4
2.3. The PBS operates on the basis of a simple logic5:
(i) When recent international prices (reflect ed in the "reference price") are below the
floor price, the system imposes a special ch arge on imports, known as the "variable
additional duty".

(ii) On the other hand, recent international prices are above the ceiling price, the PBS
generates a "tariff rebate", which consists of a discount on the amount payable by the
importer by way of ordinary customs duties. In most cases, the tariff rebate has no
practical effect since most products subject to the PBS attract an ordinary customs
duty of 0%.

(iii) If the international prices are at a level between the floor price and the ceiling price,
the PBS generates neither an additional duty nor a tariff rebate. In such cases,
only the ordinary customs duty is applied.

2.4. Guatemala has detected a series of anomalie s characterizing the PBS. Some of these aspects
directly contradict the rules or formulas established in Supreme Decree No. 115-2001-EF.
Other aspects bear witness to a bias in the administration of the PBS. Guatemala will come back to
those anomalies later in this executive summary, when it addresses its claims under Articles X:1
and X:3(a) of the GATT 1994.

1 Request for the Establishment of a Panel by Guatemala, Peru – Additional Duty on Imports of Certain
Agricultural Products, WT/DS457/2, circulates on 14 June 2013.
2 Response of Guatemala to Panel question 41, para. 87.
3 Response of Guatemala to question 41 from the Panel, para. 88.
4 Supreme Decree No. 115-2001-EF, second preambular paragraph.
5 First written submission of Guatemala, para. 3.9.

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3 LEGAL CLAIMS
3.1 Order of analysis
3.1. In accordance with a well-established principle of jurisprudence, legal analysis must begin
with the provision that deals with a matter more specifically and in greater detail.
6 With regard to
agricultural products, it has been found previously that Article 4.2 of the Agreement on Agriculture
is more specific than Article II:1(b) of the GATT 1994. Thus, Guatemala considers that the
approach most in harmony with existing case law would be to start the legal analysis with
Article 4.2.
7
3.2. Contrary to Peru's allegation, the fact that both Article 4.2 and Article II:1(b) refer to an
ordinary tariff is no justification for initiating the analysis on the basis of Article II:1(b). 8 The two
provisions are different in their legal scope and their scope of application. The fact that both
provisions share a common concept has no bearing on their nature, specificity and detail, which
are precisely the factors that determine the appropriate analytical sequence.
3.3. Regardless of the approach that the Panel de cides to adopt, Guatemala respectfully requests
the Panel to make findings under both provisions. Guatemala acknowledges that the Panel would
be entitled to exercise judicial economy, but re spectfully requests the Panel not to adopt that
approach. It is common practice for panels to resolve more claims than are technically necessary
to "resolve the dispute", with a view to facilitating the Appellate Body's work of completing the
analysis in case it rejects one or more panel findings. The Appellate Body has explicitly approved
that practice.
9
3.2 The measure at issue is inconsistent with Article 4.2 of the Agreement on
Agriculture
3.2.1 The measure at issue constitutes a variable import levy or similar measure
3.4. In order to constitute a variable levy or similar measure under Article 4.2, a measure must
meet three criteria, as previously explained by the Appellate Body.10
3.5. The measure is inherently variable: a levy is "variable" when it is "liable to vary" and
"inherently variable".11 The measure itself must impose the variability of the duties. This happens
when the measure "incorporates a scheme or formula that causes and ensures that levies change
automatically and continuously". 12 In contrast, ordinary duties vary by virtue of discrete changes
that occur independently and as a result of specific acts.13
3.6. Lack of transparency and lack of predicta bility: variable import levies are characterized
by their lack of transparency and lack of predicta bility with regard to the level of the resulting
duties. If an exporter cannot reasonably predict th e amount of the duties to be paid, that exporter
is less likely to ship to a market. The Appellate Body made it explicitly clear that lack of
transparency and lack of predictability are not independent or absolute characteristics of a variable

6 See the first written submission of Guatemala, para. 4.2. See also Appellate Body Report, Chile - Price
Band System, para. 191; Appellate Body Report, EC – Bananas III, para. 204; Appellate Body Report, Canada
– Renewable Energy/Canada – Feed-in Tariff Program, para. 5.6; Panel Report, Indonesia - Autos,
paras. 14.61–14.63; Panel Reports, Canada – Autos, paras. 10.63 and 10.64; and India - Autos,
paras. 7.157-7.162.
7 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
para. 5. Response of Guatemala to Panel question 55, paras. 128-129.
8 First written submission of Guatemala, para. 5.4. Opening statement by Peru at the first substantive
meeting of the Panel with the parties, para. 35.
9 Response of Guatemala to question 55 from the Panel, paras. 130-133.
10 First written submission of Guatemala, paras. 13.17-13.21.
11 Appellate Body Report, Chile – Price Band System, paras. 232 and 233.
12 Appellate Body Report, Chile – Price Band System, para. 233.
13 First written submission of Guatemala, para. 4.18. Opening statement by Guatemala at the first
substantive meeting of the Panel with the parties, para. 11. See also Guatemala's response to question 64,
para. 228.

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levy. Rather, they are natural and inherent conseque nces of the very nature of variable levies and
their application.14
3.7. Distortion of import prices and impossibility of transmitting international price developments:
variable import levies are measures that distort import prices. Thus, they impede the transmission
of international price developments to the domestic market (developments as reflected in the
prices of imports subject to the measure). This may happen when variable duties are calculated on
the basis of the difference between two parameters whose purpose is to disconnect the domestic
market from international price developments.15
3.8. The measure at issue satisfies these three criteria.
3.9. First, Peru's variable duty is calculated by means of a series of mathematical formulas
enshrined in the regulations. Both the variable duty itself and its inputs (reference price, floor price
and ceiling price) are based on those formulas. The operation of the formulas is automatic and
continuous. The reference price and the variable duty are updated automatically every 15 days,
using prescribed legal instruments and on the basis of data gathered in the international markets.
The floor and ceiling prices are updated automatically every six months.
16 The Peruvian authorities
have no power of discretion in this process. An empirical analysis confirms that the variable duties
have almost always varied in relation to the previous two weeks.
17 At no time has Peru sought to
refute the fact that the PBS contains mathematical formulas which cause the variable duty to vary
automatically and continuously.
3.10. In addition, and contrary to Peru's cont ention, the variable duty does not cease to be
variable by virtue of any attempt by the economic operators to estimate its level. The variability -
and the consequent lack of transparency and pred ictability - are characteristics inherent in the
design of the measure and are not dependent on whether or not the economic operators attempt
to adjust to the variability. In any event, it is impossible to estimate the variable duty precisely
because its level is linked to international prices which are in constant flux. Guatemala has used
specific examples to show that, in both the short and the long term, economic operators cannot
reasonably predict reference prices and the variable duty.
18 The uncertainty is particularly
pronounced in the long term - which is precisely the context in which most world sugar trade is
conducted.19 Guatemala submitted an example of a contra ct in which an exporter, on the basis of
prices on futures markets, estimates a variable duty of zero for a specific month in the future and,
18 months after his initial estimation, the same operator is faced with an estimated variable duty
of more than US$200 per metric tonne, for the same month in the future.
20
3.11. In any event, Guatemala does not deem it necessary to conduct this type of analysis.
Actions whereby private entities may seek to mitigate the trade impact of measures that are in
violation of a rule do not remedy that violation. Peru owes it to the Government of Guatemala and
other WTO Members to comply with Article 4.2. In the context of inter-governmental relations, the
actions of private parties are irrelevant.
21 Peru's argument that, in the final analysis, all measures
are variable, because they can be changed by sovereign decision of the Government, must also be
rejected. The variable duty is characterized by a variability that is distinct from, and additional to,
the ordinary variability characteristic of government measures in general.
22
3.12. Second, inasmuch as they are generated by the above-mentioned mathematical formulas,
variable duties are characterized by lack of transparency and predictability. 23 This lack of
transparency and predictability is a natural and inherent consequence of the variable nature of the
duties. Moreover, Guatemala has demonstrated, using concrete examples, that not only is there a
general level of uncertainty, but that this uncertainty also affects specific consignments, taking

14 First written submission of Guatemala, para. 4.19.
15 First written submission of Guatemala, para. 4.20.
16 First written submission of Guatemala, paras. 4.36-4.53.
17 First written submission of Guatemala, paras. 4.54-4.57.
18 Response of Guatemala to question 53 from the Panel, paras. 107-122.
19 Response of Guatemala to question 7 from the Panel, para. 6.
20 Response of Guatemala to question 53 from the Panel, para. 115.
21 Response of Guatemala to question 53 from the Panel, paras. 118-120.
22 Response of Guatemala to question 53 from the Panel, para. 122 and response of Guatemala to
questions 46 and 57 from the Panel, footnote 125.
23 First written submission of Guatemala, paras. 4.58-4.63.

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into account the duration of transportation by sea. 24 It was also demonstrated that it is impossible
for economic operators to foresee or estimate prices and variable duties in both the short and the
long term. As was pointed out, the uncertainty is particularly pronounced in the long term, which
is the mode that normally governs transactions on the world sugar market.
25
3.13. Third, variable additional duties and the PB S distort the prices of imports, thereby impeding
the transmission of trends in the prices of such imports to the Peruvian market. This is the express
purpose and the practical effect of the Peruvian regulation. 26 The variable duties are precisely
calibrated to bridge the gap between two parameters, namely the reference price and the floor
price.27 The measure artificially raises the price of en try for imports, and thus impedes or seeks to
impede entry of the goods at a price below the floor price.
3.14. Guatemala rejects the "isolation" analysis proposed by Peru. That analysis contradicts the
text of Article 4.2 and the other covered agreem ents. When the negotiators wished to link the
legal characterization of a measure to its economic effects, they said so explicitly. 28 Peru's analysis
also contradicts the case law under Article 4.2. 29 The Appellate Body has attached importance to
the fact that variable levies neutralize fluctuations in the prices of imports subject to such levies .
This impedes the transmission of such prices to the national market. 30 Contrary to what is alleged
by Peru, the criterion used by the Appellate Body does not concern whether there is a correlation
between average price trends in the domestic market and international prices.
3.15. In addition, there is no economic logic in the mere presentation by Peru of the correlation or
lack of correlation. Peru takes no account of the wide range of factors that impact and determine
the domestic price.
31 Peru also ignores the fact that there are various factors other than imports
under the PBS which affect the transmission of international trends to the domestic market. For
example, even if the PBS impedes such transmissi on, the transmission can be effected by imports
entering Peru without being subject to the PBS. 32 The measure at issue does not control these
factors and is not applicable to them. 33 Guatemala has illustrated these methodological failings in
the light of concrete examples in the Peruvian analysis.34
3.16. The "isolation" analysis proposed by Peru would also result in a meaningless legal criterion,
devoid of any legal certainty. Depending on fluctuations in economic circumstances, the same
measure could be an offending measure in one Member but not in another, or its WTO consistency
could vary in the same Member according to the period analysed.
35 Moreover, in some Members,
the characteristics of the domestic market would not at all permit the application of such an
analysis.36
3.17. In substance, the "isolation" analysis prop osed by Peru is an attempt to introduce through
the back door a trade effects test which has been repeatedly rejected – over a period of
decades - under the GATT and the WTO, even by the Appellate Body itself, by virtue of a series of
provisions of the GATT and the Agreement on Technical Barriers to Trade. 37 The logic underlying
that rejection also applies under Article 4.2 of th e Agreement on Agriculture: the provisions of the
covered agreements provide protection not for trade volumes or price trends but for the

24 First written submission of Guatemala, paras. 4.64-4.68.
25 Response of Guatemala to question 53 from the Panel, paras. 107-122.
26 First written submission of Guatemala, para. 4.74.
27 First written submission of Guatemala, paras. 4.75 and 4.78. Opening statement by Guatemala at
the first substantive meeting of the Panel with the parties, paras. 17-20.
28 Response of Guatemala to Panel questions 46 and 57. paras. 140-144.
29 Response of Guatemala to Panel questions 46 and 57, paras. 140-153.
30 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 17-20. Response of Guatemala to Panel questions 46 and 57, paras. 146-151.
31 Response of Guatemala to Panel questions 46 and 57, paras. 159-165.
32 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
para. 22. Response of Guatemala to Panel questions 46 and 57, paras. 163-169.
33 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
para. 21. Response of Guatemala to Panel questions 46 and 57, paras. 155-157.
34 Response of Guatemala to Panel questions 46 and 57, paras. 162 and 167.
35 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 173-174.
36 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 175-177.
37 Response of Guatemala to Panel questions 46 and 57, paras. 178-186.

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expectations of Members concerning conditions of competition. Under Article 4.2, Members have
legitimate expectations that their exports could compete without being subject to customs charges
that are not ordinary customs duties. In additi on, the purpose of Article 4.2 is to enable
governments to negotiate the gradual liberalization of agricultural trade solely on the basis of
ordinary customs duties. In this context, the correlation of prices is irrelevant.
3.18. If the Panel were to decide to consider Peru's analysis, Guatemala would claim that that
analysis is invalid. Peru does not take into account the many factors that complicate the
analysis38; it fails to analyse what it claims to analyse 39; it does not disclose essential elements of
the analysis40; and it presents ambiguous results at best, results that can also be interpreted as
running directly counter to Peru's interpretation, depending on the approach taken. 41 The Panel
would also have to analyse the fact that the Peruvian measure has completely eliminated
Guatemalan imports and that the origin of imports has been changed to origins not covered by the
PBS.42
3.2.2 The measure at issue constitutes a minimum import price or similar measure
3.19. The Appellate Body found that the concept of "minimum import price" refers "to the lowest
price at which imports of a certain product may enter a Member's domestic market". 43 The
characteristics of a minimum import price include: (i) the imposition of a specific additional duty
when the reference price falls below the lower band threshold 44; (ii) the lower the reference price
relative to the lower threshold, the higher the specific duty 45; and (iii) the measure distorts the
transmission of declines in world prices to the domestic market.46
3.20. Guatemala maintains that, in the light of the criterion enunciated by the Appellate Body, the
measure at issue is a minimum import price since the floor price of the PBS operates as a
minimum level of imports. 47 When the reference price is below the floor price, the system orders
the imposition of a specific duty equal to the difference between those two parameters. The size of
the specific duty will augment in line with the difference between the floor price and the reference
price. In addition, the measure at issue distorts the transmission of falls in international prices to
the domestic market. In the short term, the system completely precludes the transmission of a
decline in prices to the Peruvian domestic market. In the long term, although it does not
completely preclude the transmission of international prices to the international market, the
Peruvian system severely distorts such transmission owing to its cushioning effect.
48
3.21. Peru's observations concerning the lack of a target price in its measure 49 are inaccurate
and, in any event, of no relevance to resolvin g the issue of whether that measure is a minimum
import price.
3.22. Guatemala maintains that the PBS is in fa ct a target price or an objective price, which
consists in the floor price. 50 Moreover, the possibility that some shipments enter Peru with a final
cost (i.e. CIF import price plus variable additional duty) lower than the floor price is not a factor
conducive to resolving the legality of the Peru vian measure. There are a number of reasons for
this: (i) this approach would ignore the design, structure and architecture articulated by the
measure itself, that is to say, the neutralization of fluctuations in international prices; (ii) the
reference price is calculated in accordance with the average of the prices quoted in the reference
markets, which implies that, for consignments with a typical or average price, the floor price does
operate as a minimum price; (iii) Peru's argument could be turned round to reach a contrary

38 Response of Guatemala to Panel questions 46 and 57, para. 190.
39 Response of Guatemala to Panel questions 46 and 57, para. 191.
40 Response of Guatemala to Panel questions 46 and 57, para. 192.
41 Response of Guatemala to Panel questions 46 and 57, para. 167.
42 Response of Guatemala to Panel questions 46 and 57, paras. 194-195.
43 Appellate Body Report, Chile – Price Band System, para. 236.
44 Appellate Body Report, Chile – Price Band System (Article 21.5), para. 202.
45 Appellate Body Report, Chile – Price Band System (Article 21.5), para. 202.
46 Appellate Body Report, Chile – Price Band System (Article 21.5) para. 202.
47 First written submission of Guatemala, para. 4.88.
48 First written submission of Guatemala, paras. 4.88–4.93.
49 First written submission of Peru, paras. 5.61–5.68; Opening oral statement by Peru at the first
substantive meeting of the parties with the Panel, para. 41.
50 Response from Guatemala to question 59, para. 201.

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conclusion, that is, that the measure is in fact a minimum price because most consignments enter
Peru with a final cost equal to or above the floor price; (iv) even if many consignments entered
Peru with a price lower than the reference price, that situation would be temporary since it would
be corrected in the following two weeks by the upda ting of the reference price; and (v) even if the
measure at issue did not succeed in some cases in equalizing entry prices with the floor price, the
measure has the de facto effect of equalizing entry prices with another parameter: the price
resulting from the sum of the lowest international price and the variable additional duty.
51
3.23. It is evident from all of the above that the factual observations of Peru lead to no valid legal
result. An analysis of the design, structure and architecture reveals that the measure in question is
a minimum import price in terms of Article 4.2 of the Agreement on Agriculture.
3.3 The measure at issue is inconsistent wi th Article II:1(b), second sentence, of the
GATT 1994
3.24. Article II:1(b), second sentence, establishes disciplines for "other duties or charges".
52 The
sentence in question has been clarified by the Understanding, so that the two texts, read in
conjunction, provide that the other duty or charge must meet the following requirements: (a) the
duty or charge, or the mandatory legislation under which it is to be applied, must have existed at
15 April 1994; (b) it may not exceed the level of the duty or charge applied on 15 April 1994; and
(c) it must have been recorded in the sched ule of concessions of the importing Member.
53 These
three obligations are cumulative.54
3.25. Guatemala contends that the variable additional duty is one of the "other duties or charges"
and is not recorded in Peru's schedule of concessions; it was not applied at the date of entry into
force of the GATT 1994; nor was it stipulated in the binding Peruvian legislation in force on the
date of entry into force of the GATT 1994. Contrary to Peru's understanding, Guatemala has not
claimed that Peru's other duties and charges exceed those applied at the date of the GATT 1994.
55
An examination of that matter is unnecessary, since the measure in question entered into force in
2001.56
3.26. Peru, for its part, alleges that the variable additional duties are consistent with
Article II:1(b) of the GATT 1994 because they are "ordinary customs duties". 57 In support of this
allegation, Peru erroneously applies the legal standards established in the case law 58 and seeks to
define "ordinary customs duties" on the basis of positive criteria.59 In this way, Peru eliminates the
distinction between this concept and that of "other duties or charges".60
3.27. On the other hand, contrary to Peru's contention, the fact that Peru's offer was accepted
by some of the negotiating parties during the Uruguay Round does not imply any type of validation
of the measure that is challenged. Not all Memb ers even have the possibility of validating
measures that run counter to WTO Agreements, except where an exemption is concerned. 61 Nor is
it legitimate for Peru to contend that, based on its own "good faith understanding" that it was
negotiating in accordance with certain guidelines, the variable additional duties would have had to
be considered, automatically and unconditionally, as ordinary customs duties.
62
3.28. In other words, the fact that the additional variable duty "shares" some characteristics of
ordinary customs duties63; that there was no objection during the Uruguay Round negotiations 64;

51 Response from Guatemala to question 59, para. 203.
52 First written submission of Guatemala, para. 4.102.
53 First written submission of Guatemala, para. 4.114.
54 First written submission of Guatemala, para. 4.114; Response of Guatemala to Panel question 43,
para. 94.
55 First written submission of Peru, para. 5.97.
57 First written submission of Peru, paras. 5.2 and 5.4.
58 First written submission of Peru, paras. 5.26–5.41.
59 First written submission of Peru, para. 5.38.
60 Opening statement by Guatemala, paras. 48-50.
61 Opening statement by Guatemala, paras. 52 and 53.
62 First written submission of Peru, paras. 5.48 to 5.50; opening statement by Guatemala, paras. 54
to 57.
63 First written submission of Peru, section 5.1.3.

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or Peru's own opinions on its own conduct 65 fail to refute the prima facie case presented by
Guatemala.66 As was pointed out above 67, the variable additional duties have characteristics that
prevent them from being considered as "ordinary customs duties". 68 Guatemala also put forward
ten additional factors to confirm that the variable additional duty, in Peru's own legal system, is
different from an ordinary customs duty. 69 None of these factors was addressed or refuted by
Peru.70
3.29. Variable additional duties therefore constitute one of the "other duties or charges". It is an
undisputed fact that Peru did not record them as such in its schedule of commitments. 71 For that
reason alone, Peru violated Article II:1(b) of the GATT 1994 and its omission is irremediable.72
3.30. In addition, Guatemala has demonstrated, contrary to Peru's assertion 73, that the measure
challenged did not exist at 15 April 1994. 74 Guatemala not only described the characteristics that
distinguish the 1991 system from that of 2001 75, but it also produced two pieces of documentary
evidence which confirm that the Peruvian Government itself had concluded that the measure in
question abolished the 1991 system; that is to say that they are two distinct measures.
76 In the
course of the hearing, Peru did not even attempt to refute the arguments or the exhibits presented
by Guatemala. This also confirms a violation of Article II:1(b) of the GATT 1994.
3.31. In the light of the foregoing, the variable additional duty imposed by Peru is inconsistent
with the second sentence of Article II:1(b) of th e GATT 1994 and with paragraphs 1, 2, 3 and 4 of
the Understanding on the Interpretation of Articl e II:1(b) of the General Agreement on Tariffs and
Trade 1994.
3.4 Peru's actions are inconsistent with Ar ticle X:1 of the GATT 1994 given its failure to
publish various aspects of the measure at issue
3.32. The publication requirement under Article X:1 of the GATT 1994 applies not only to
administrative rulings of general application, but to any "essential element" forming part thereof.77
3.33. Peru is in breach of Article X:1 of the GATT 1994 since it has failed to publish the following
three essential elements of the measure in questi on: (i) the content of the 3% import costs that
are used to determine the variable additional duty; (ii) the methodology for determining the
amounts of freight and insurance that are used to determine the floor price and the reference
price; and (iii) the international prices used as a basis for calculating the floor price and the
reference price.
78
3.34. The foregoing elements come within the scope of Article X:1 inasmuch as, being
methodologies or data essential to the operation of the PBS, they are essential elements of the
measure in question.
3.35. Peru is in breach of its obligation to publicize these elements in a way that enables traders
and other governments to familiarize themselves with the content of the rules and the charges

64 First written submission of Peru, para. 5.49.
65 First written submission of Peru, para. 5.50.
66 Opening statement by Guatemala, paras. 48 to 57.
67 See above, paras. 3.4 to 3.24.
68 First written submission of Guatemala, paras. 4.119 to 4.121.
69 First written submission of Guatemala, para. 4.125.
70 First written submission of Peru, para. 5.44; opening statement by Guatemala, para. 47; response of
71 First written submission of Peru, para. 5.49; opening statement by Guatemala, para. 65.
72 Response of Guatemala to Panel question 43, para. 94.
73 First written submission of Peru, para. 5.45.
74 Opening statement by Guatemala, paras. 58 to 62.
76 Opening statement by Guatemala at the first substantive meeting of the parties with the Panel,
paras. 61-62. Exhibit GTM-36 and Exhibit GTM-37.
77 First written submission of Guatemala, para. 4.148 (citing the Panel report, Dominican
Republic - Import and Sale of Cigarettes, para. 7.405).
78 First written submission of Guatemala, paras. 4.150-4.172.

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imposed on them. 79 Consequently, Peru's actions are inconsistent with Article X:1 of the
GATT 1994 with respect to each of these three elements of the measure.
3.36. Guatemala's claims under Article X:1 also originally included four anomalies of the measure
in question.80 Those claims were submitted by Guatemala in anticipation of the possibility of Peru
confirming that those four practices did in fact have a legal basis in Peruvian legislation; in which
case, Peru would be in violation of Article X:1 for not having published that provision of its
domestic legislation. Guatemala decided to abandon its claims concerning these four practices
since it concluded, on the basis of the assertions made by Peru in its first written submission, that
those practices had no valid legal basis and, therefore, that there was no provision or instrument
to be published in accordance with Article X:1 of the GATT 1994.
81 These four practices, however,
continue to be the subject of claims by Guatem ala under Article X:3(a) of the GATT 1994, as is
explained in the next section.
3.5 Peru's actions are inconsistent with Arti cle X:3 (a) of the GATT 1994 inasmuch as it
administers the measure in question in a manner that is not uniform, impartial or
reasonable
3.37. Article X:3(a) of the GATT 1994 provides that WTO Members shall administer their trade
regulations "in a uniform, impartial and reasonable manner". The requirements of uniformity,
impartiality and reasonableness are legally independent, so that failure to comply with any of them
would imply an independent breach of Article X:3(a) of the GATT 1994. 82 It has been found that,
if a country administers any trade regulation in a manner not provided for in its own internal
legislation, this would qualify as an unreasonable administration that would be in breach of
Article X:3(a).
83
3.38. Guatemala has identified four anomalies of the PBS which give cause for claims under
Article X:3(a) of the GATT 1994: (i) the decision to extend the validity of the customs tables
without applying the formulas required by the Peruvi an regulations; (ii) the calculation of the price
band for dairy products on the basis of reference price ranges; (iii) the establishment of reference
prices for dairy products at the same level for two consecutive two-week periods; and (iv) the
calculation of the variable additional duty for two different categories of rice.
84
3.39. On the basis of the assertions made by Peru in its first written submission, Guatemala
concludes that the practices mentioned have no vali d legal basis in the Peruvian regulations. Peru
mentions no legal authority for the first three practices. With regard to the fourth practice
(calculation of the variable additional duty fo r two different categories of rice), Guatemala
observes that the legal instrument cited by Peru does not constitute a proper legal basis, since it is
a 1993 instrument which belongs to the previous system of specific duties established in 1991
rather than the current price band system established in 2001.85
3.40. Consequently, by resorting to practices not provided for in its internal regulations,
Peru administers the measure at issue in a manner that is unreasonable under the terms of
Article X:3(a) of the GATT 1994.
3.41. In addition to the four above-mentioned pr actices, Guatemala identified a fifth anomaly in
the PBS, which consists in the rounding method used by Peru to calculate the variable additional
duty and the tariff rebate.86 Guatemala maintains that, owing to the irregularities in that rounding
method, Peru administers the measure in question in a manner that is not uniform or impartial.
This gives rise to an additional breach of Article X:3(a) of the GATT 1994.

79 Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.406-7.407.
80 First written submission of Guatemala, paras. 4.173-4.195.
81 Response of Guatemala to Panel question 79, para. 265.
82 Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.383.
83 Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.385-7.388.
84 First written submission of Guatemala, para. 3.88.
85 Opening statement by Guatemala at the first substantive meeting of the parties with the Panel,
para. 71.
86 First written submission of Guatemala, paras. 4.206-4.221.

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3.6 Claims under the Agreement on Customs Valuation
3.42. Guatemala is submitting its claims under the Customs Valuation Agreement in the
alternative, in case the Panel reaches the conclusion that the measure at issue is an ordinary
customs duty.
87
3.43. Under the Customs Valuation Agreement, WTO Members must base the customs value of
goods on the transaction value that is provided by the importer or, failing this, they may
determine the value in question on the basis of one of the methods established in Articles 1 to 7 of
the Agreement.
3.44. The variable additional duty is not determined on the basis of the weight of the imported
goods, but on the basis of a price for the goods. However, this price is not the transaction value
provided by the importer but the reference price pu blished by Vice-Ministerial Resolution of Peru's
Vice-Minister of the Economy. This means that, by virtue of the price band system, Peru totally
ignores the transaction value and, instead, uses minimum, arbitrary or fictitious customs values, in
violation of Articles 7.2(f) and 7.2(g) of the Customs Valuation Agreement.
3.45. Peru appears not to understand Guatemala's claims. In its opinion, the Customs Valuation
Agreement "only contains principles for situations in which duties are imposed on the basis of a
value, and which are not applicable to specific duties levied on the basis of quantity, item or
weight.
88 However, the variable additional duty is not calculated on the basis of "quantity, item or
weight" as alleged by Peru.89
3.46. Therefore, by determining the customs va lue of the goods subject to the measure through
the improper use of minimum, arbitrary or fictitious values, Peru is acting inconsistently with
Articles 1, 2, 3, 5, 6 and 7 of the Customs Valuation Agreement.
4 GUATEMALA HAS INSTITUTED PROCEEDINGS BEFORE THIS PANEL IN GOOD FAITH
AND IN STRICT CONFORMITY WITH THE RULES OF THE RELEVANT LEGAL INSTRUMENTS
4.1. Peru has requested the Panel not to consider Guatemala's claims since, in its opinion,
Guatemala has not acted in good faith in initiating this dispute settlement procedure. 90 In support
of its request, Peru ambiguously puts forward four erroneous arguments: (a) that Guatemala,
"either explicitly or by necessary implication", waived any rights it might have under the
WTO Agreements that were inconsistent with what had been agreed in the FTA 91; (b) that
Guatemala expressly accepted the Peruvian price band in the Guatemala-Peru Free Trade
Agreement (FTA) and that the initiation of this dispute settlement procedure defeats its object and
purpose
92; (c) that there has been an abuse of rights, because Guatemala considered the price
band system to be consistent with the framework of the WTO Agreements 93; and (d) that
Guatemala agreed to modify its rights and obligations in the WTO framework insofar as they might
be inconsistent with the FTA.94
4.2. None of these contentions has any basis in the facts, the rules or the jurisprudence.
First, Peru is invoking the estoppel principle in support of its request. Although this principle has
been invoked in previous WTO disputes, it has never been applied as a valid defence to limit the
rights of the complaining country. In fact, the Appellate Body has emphasized that "it is far from
clear that the estoppel principle applies in the context of WTO dispute settlement".
95
4.3. Even assuming that the estoppel principle is applicable in WTO disputes, the assertion that a
WTO Member has waived its rights under the DSU "cannot be lightly assumed". 96 If a

87 First written submission of Guatemala, para. 4.222.
88 First written submission of Peru, para. 5.142.
89 First written submission of Peru, para. 5.142.
90 First written submission of Peru, section 4.1.
91 First written submission of Peru, para. 4.26.
92 First written submission of Peru, para. 4.20; opening statement by Peru, para. 32.
93 First written submission of Peru, para. 4.11.
94 First written submission of Peru, paras. 4.22 and 4.28; opening statement by Peru, paras. 24 to 28.
95 Appellate Body Report, EC – Export Subsidies on Sugar, para. 310.
96 Appellate Body Report, EC – Bananas III (Article 21.5 - Ecuador II), para. 217.

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WTO Member has not clearly stated that it would not take legal action with respect to a certain
measure, it cannot be regarded as failing to act in good faith if it challenges that measure.97
4.4. Nor does Guatemala accept that such a statement can be made through the FTA. Rather, a
waiver of WTO rights would have to be made wi thin the legal framework of the WTO, for example
by means of a mutually agreed solution, under Article 3.5 of the DSU, in a dispute that has already
been initiated, or through a multilateral agreement. 98 Peru would also have to demonstrate that
the FTA clearly establishes that Guatemala waived its right under the DSU to challenge the price
band system before the WTO. The FTA simply contains no provision of that nature.99
4.5. Second, paragraph 9 of Annex 2.3, which Peru presents as the basis for its claims, should be
read in conjunction with Article 1.3.1 of the FTA whereby the Parties confirmed "the rights and
obligations existing between them in accordance with the WTO Agreement". The aforementioned
provisions indicate that, although Peru has the right to maintain its PBS for a limited number of
products, Peru also has the obligation to comply with the provisions of the WTO Agreement. Since
neither of the two sets of provisions contains mutually exclusive obligations, there is no conflict or
inconsistency between the FTA and the WTO Agreements.
100 Therefore, Peru is not exempted from
complying with its WTO obligations, and Guatemala is not impeded from exercising its WTO rights,
including the possibility of validly challenging the measure at issue.
101
4.6. Third, in contrast to Peru's assertions, the FTA contains no provisions indicating that
Guatemala recognized the price band system as consistent with WTO rules. This type of
interpretation simply does not accord with the ordinary meaning of the terms used in the
aforementioned provisions.
102
4.7. Fourth, contrary to Peru's assumption, the FTA is not a vehicle for modifying rights and
obligations under the WTO Agreements. These Ag reements can only be modified through the
procedures established in Article X of the Marrakesh Agreement.103
4.8. Guatemala also explained that Peru's subm issions would require the Panel to act outside its
terms of reference, since it would have to apply its jurisdiction in order to hear a non-WTO dispute
(i.e. to entertain disputes concerning the FTA and the Vienna Convention on the Law of Treaties,
which do not form part of the covered agreements).
104 Guatemala also made it clear that Peru's
submissions would oblige the Panel to interpret pr ovisions of the covered agreements on the basis
of a legal instrument to which not all WTO Members are parties.105
4.9. For all of these reasons, Peru lacks any justification for affirming that Guatemala has not
acted in good faith in challenging the price band system before the WTO.
5 REQUEST FOR RULINGS AND RECOMMENDATIONS
5.1. On the basis of the foregoing, Guatemala requests the Panel to issue findings and rulings on
the following:
 The measure at issue is inconsistent with Article 4.2 of the Agreement on Agriculture as
it constitutes a variable import levy or similar measure;
 The measure at issue is inconsistent with Article 4.2 of the Agreement on Agriculture as
it constitutes a minimum import price or similar measure;

97 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II), para. 228 (emphasis added).
98 Opening statement by Guatemala, para. 82; See also third party submission of the United States,
para. 50.
100 Response of Guatemala to Panel question 25, paras. 51 to 56.
101 Opening statement by Guatemala, paras. 84 and 85.
103 Response of Guatemala to Panel question 21, para. 35.
104 Response of Guatemala to Panel question 21, para. 35. Response of Guatemala to Panel question 27,
paras. 58 and 59.
105 Response of Guatemala to Panel question 21, para. 35.

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 The measure at issue is inconsistent with Article II:1(b), second sentence, of the
GATT 1994, since it is included under the "other duties or charges" of that provision.
At the same time, the measure in question is not recorded in Peru's schedule of
concessions, was not applied at the date of entry into force of the GATT 1994, and was
not stipulated in the binding Peruvian legislation in force on the date of entry into force
of the GATT 1994;
 Peru's actions are inconsistent with Article X:1 of the GATT 1994, given its failure to
publish: (i) the content of the "import costs"; (ii) the methodology for determining the
amounts for freight and insurance; and (iii) th e international prices which form the basis
for calculating the floor price and the reference price;
 Peru's actions are inconsistent with Article X:3(a) of the GATT 1994, since it administers
the measure at issue: (i) in a manner that is not reasonable as it does not observe the
requirements of its own legislation; and (ii) in a manner that is not uniform or impartial
in the light of the method of rounding used to calculate the additional duty and the
tariff rebate;
 If it is found that the measure at issue is an ordinary customs duty, Peru would be acting
inconsistently with Article 7.2(f) and 7.2(g) of the Customs Valuation Agreement, since it
determines the customs value of the goods subject to the PBS through the use of
minimum, arbitrary of fictitious customs values. As a result, Peru would also be acting in
violation of Articles 1, 2, 3, 5, 6 and 7 of the Customs Valuation Agreement.
5.2. In addition to the foregoing, and in accordan ce with the provisions of the second sentence of
Article 19.1 of the DSU, Guatemala requests the Panel to suggest that Peru should completely
dismantle the measure at issue.

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ANNEX B-2
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF GUATEMALA
1 THE MEASURE AT ISSUE
1.1. The measure at issue is the variable additional duty imposed by Peru, which is calculated
under the rules of the price band system (PBS ) established by Supreme Decree No. 115-2001-EF
and other amending instruments. This is clear from the way in which Guatemala characterized the
measure in its panel request.
1 Contrary to Peru's contention 2, the foregoing implies that the
measure at issue is not only the variable additional duty, but also the underlying method of its
calculation. A further examination of the measure concerned necessarily requires an analysis of
the functioning of the price band system and it s constituent elements. It is not possible to
separate the variable additional duty from the PBS: the one does not exist without the other.
3
1.2. Although Guatemala characterized the measure at issue differently from the way in which the
Chilean measure was characterized in Chile - Price Band System (which referred to "Chile's PBS"),
this does not mean that the legal criteria established by the Appellate Body in that dispute cannot
be applied in the present case.4
2 FACTUAL DESCRIPTION OF THE MEASURE AT ISSUE
2.1. The variable additional duty is calculated in accordance with the PBS. This system functions
on the basis of a "price band", which consists of an area defined by a lower threshold and an upper
threshold. The lower threshold is referred to as the "floor price", and the upper threshold as the
"ceiling price". Both prices consist of a figure expressed in United States dollars and both are
based on international prices for the past 60 months.
2.2. As stated in Supreme Decree No. 115-2001-EF itself, the purpose of the PBS is "to neutralize
fluctuations in international prices and limit the negative effects of falls in such prices".
5
2.3. The PBS operates on the basis of a simple logic:6
i. When recent international prices (reflected in the "reference price) are below the floor
price, the system imposes a special char ge on imports, known as the "variable
additional duty".
ii. On the other hand, if recent international prices are above the ceiling price, the PBS
generates a "tariff rebate", which consists of a discount on the amount payable by the
importer by way of ordinary customs duties. In most cases, the tariff rebate has no
practical effect since most products subject to the PBS attract an ordinary customs
duty of zero per cent.
iii. If the international prices are at a level between the floor price and the ceiling price,
the PBS generates neither an additional duty nor a tariff rebate. In such cases, only the
ordinary customs duty is applied.
2.4. In addition to violations of Article 4.2 of the Agreement on Agriculture, Article II:1(b) of the
GATT 1994 and the Understanding on the in terpretation of Article II:1(b) of the
General Agreement on Tariffs and Trade 1994, Gu atemala has detected a series of anomalies

1 Request for the establishment of a Panel by Guatemala, Peru - Additional Duty on Imports of Certain
Agricultural Products, WT/DS457/2, circulated on 14 June 2013.
2 Second written submission of Peru, para. 4.1.
3 Response of Guatemala to Panel question 41, para. 87. Second written submission of Guatemala,
paras. 2.1 and 2.2.
4 Response of Guatemala to Panel question 41, para. 88.
5 Supreme Decree No. 115-2001-EF, second preambular paragraph.
6 First written submission of Guatemala, para. 3.9.

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characterizing the administration of the PBS. Some of these aspects are in direct contradiction to
the rules or formulas established in Supreme Decree No. 115-2001-EF. Other aspects bear witness
to a bias in the administration of the PBS. Guat emala will come back to those anomalies later in
this executive summary when it addresses its claims under Articles X:1 and X:3(a) of the
GATT 1994.
3 LEGAL CLAIMS
3.1 Order of analysis
3.1. According to established precedents, the le gal analysis must begin with the provision that
deals with a matter more specifically and in greater detail.
7 With regard to agricultural products, it
has been found previously that Article 4.2 of the Agreement on Agriculture is more specific than
Article II:1(b) (of the GATT 1994). Therefore, Gu atemala considers that the approach most in
harmony with existing case law would be to start the legal analysis with Article 4.2.8
3.2. Contrary to what is alleged by Peru, the fact that both Article 4.2 and Article II:1(b) refer to
an ordinary tariff is no justification for initiating the analysis on the basis of Article II:1(b). 9
The two provisions are different in their legal scope and their scope of application. The fact that
both provisions share a common concept has no bearing on their nature, specificity and detail,
which are precisely the factors that determine the appropriate analytical sequence.
3.3. Peru also alleges that "it is necessary to determine in any case whether a measure is an
ordinary customs duty" under the te rms of Article II of the GATT 1994.
10 This assertion is also
baseless. The argument that Article II of th e GATT 1994 plays a more important role than
Article 4.2 with regard to the concept of "ordinary customs duties" has already been rejected.
More specifically, the Appellate Body found in this connection that "the mere fact that the term
'ordinary customs duties' in Article 4.2 derives from Article II:1(b) of the GATT 1947 does not
suggest that Article II:1(b) should be examined before Article 4.2".
11
3.4. Irrespective of the approach that the Pane l decides to adopt, Guatemala requests the Panel
to make findings under both provisions. Guatemal a acknowledges that the Panel would be entitled
to exercise judicial economy. However, it is common practice for panels to resolve more claims
than are technically necessary to "resolve the dispute", with a view to facilitating the Appellate
Body's work of completing the analysis in case it reverses one or more of the Panel's findings.
The Appellate Body has explicitly approved that practice.
12
3.2 The measure at issue is inconsiste nt with Article 4.2 of the Agreement
on Agriculture
3.2.1 The measure at issue constitutes a variable import levy or similar measure
3.5. In order to constitute a variable levy or similar measure under Article 4.2, a measure must
meet three criteria, as previously explained by the Appellate Body.13
3.6. The measure is inherently variable: a levy is "variable" when it is "liable to vary" and
"inherently variable".14 The measure itself must impose the variability of the duties. This occurs

7 See the first written submission of Guatemala, para. 4.2. See Appellate Body Report, Chile – Price
Band System, para. 191; Appellate Body Report, EC – Bananas III, para. 204; Appellate Body Report, Canada
– Renewable Energy/Canada – Feed-in Tariff Program, para. 5.6; Panel Report, Indonesia – Autos,
paras. 14.61-14.63; Panel reports, Canada – Autos, paras. 10.63 and 10.64; and India – Autos,
paras. 7.157-7.162.
8 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
para. 5. Response of Guatemala to Panel question 55, paras. 128-129.
9 First written submission of Guatemala, para. 5.4. Opening statement by Peru at the first substantive
meeting of the Panel with the parties, para. 35.
10 Second written submission of Peru, para. 3.11. See also the opening statement by Peru at the
first substantive meeting of the Panel with the parties, para. 35.
11 Appellate Body Report, Chile – Price Band System, para. 188.
12 Response of Guatemala to Panel question 55, paras. 130-133. Second written submission of
Guatemala, para. 3.17.
13 First written submission of Guatemala, paras. 13.17-13.21.

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when the measure "incorporates a scheme or formula that causes and ensures that levies change
automatically and continuously".15 In contrast, ordinary duties vary through discrete changes that
occur independently and as a result of specific acts.16
3.7. Lack of transparency and lack of predicta bility: variable import duties are characterized
by their lack of transparency and lack of predicta bility with regard to the level of the resulting
duties. If an exporter cannot reasonably predict th e amount of the duties to be paid, that exporter
is less likely to ship to a market. The Appellate Body made it explicitly clear that lack of
transparency and lack of predictability are not independent or absolute characteristics of a variable
levy. Rather, they are natural and inherent conseque nces of the very nature of variable levies and
their application.17
3.8. Distortion of import prices and impossibility of transmitting international price developments:
variable import levies are measures that distort import prices. Thus, they impede the transmission
of international price developments to the domestic market (developments as reflected in the
prices of imports subject to the measure). This may happen when variable duties are calculated on
the basis of the difference between two parameters whose purpose is to disconnect the domestic
market from international price developments.
18
3.9. The measure at issue satisfies these three crit eria. First, Peru's variable duty is calculated
by means of a series of mathematical formulas enshrined in the regulations. Both the variable duty
itself and its inputs (reference price, floor price and ceiling price) are based on those formulas.
The operation of the formulas is automatic and continuous. The reference price and the variable
duty are updated automatically every 15 days, using prescribed legal instruments and on the basis
of data gathered in the international markets. The floor and ceiling prices are updated
automatically every six months
19 and almost always vary.20
3.10. Peru does not deny the existence of th e formulas, but denies that they are relevant.
However, the case law shows that those formulas are the "main [ ]" criterion of the inherent
variability.21 Peru also argues that there is no automatic variability because the authorities have to
take specific administrative steps, and that, at each of those steps, there is discretionary power
not to take the step in question. However, apart from some general provisions in the Constitution,
Peru is not able to identify any legal basis for such discretionary power. Nor is Peru able to indicate
a single instance during the 13 years of existenc e of the PBS, when such discretionary power has
been exercised in order to refrain from issuing a new reference price or not to apply the variable
duty when the system required its application.
3.11. Peru also argues that, in the final analysis, all the measures are variable because the
Government can change them by sovereign decision.
22 However, inherent variability, by virtue of
formulas set out in the text of the measure, is a characteristic specific to measures such as the
PBS and the variable duty. 23 This inherent variability differs fundamentally from the ordinary
variability characteristic of any government measure. 24 Guatemala has presented examples of
Peru's practice, where the ad valorem duty has varied only 7 times in 22 years, while for the same
period, the variable duty – if it had existed long enough – would have changed 537 times.

14 Appellate Body Report, Chile – Price Band System, paras. 232 and 233.
15 Appellate Body Report, Chile – Price Band System, para. 233.
16 First written submission of Guatemala, para. 4.18. Opening statement by Guatemala at the first
substantive meeting of the Panel with the parties, para. 11. See also response of Guatemala to Panel
question 64, para. 228.
17 First written submission of Guatemala, para. 4.19.
18 First written submission of Guatemala, para. 4.20.
19 First written submission of Guatemala, paras. 4.36-4.53.
20 First written submission of Guatemala, paras. 4.54-4.57.
21 Panel Report, Chile – Price Band System (Article 21.5 - Argentina), para. 6.10 and Appellate Body
Report, Chile – Price Band System (Article 21.5 – Argentina), para. 206.
22 Response of Guatemala to Panel question 53, para. 122 and Response of Guatemala to Panel
questions 46 and 57, footnote 125.
23 Second written submission of Guatemala, paras. 4.37 to 4.41.
24 Response of Guatemala to Panel question 53, para. 122 and Response of Guatemala to Panel
questions 46 and 57, footnote 125.

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Moreover, Peru's argument that all government me asures are "variable" nullifies the effectiveness
of the term "variable" in Article 4.2.25
3.12. Second, because they are generated by su ch mathematical formulas, variable duties are
characterized by a lack of transparency and predictability. 26 This lack of transparency and
predictability is a natural and inherent consequence of the variable nature of the duties.
Furthermore, Guatemala has used specific examples to show that not only is there a general level
of uncertainty, but that this uncertainty also affects specific consignments.
27
3.13. Contrary to Peru's arguments, neither do es the variable duty cease to be lacking in
transparency and predictability by virtue of any attempt by the economic operators to estimate its
level. Variability – and the consequent lack of transparency and predictability – are characteristics
inherent in the design of the measure and are not dependent on whether or not the economic
operators attempt to adjust to the variability. In any event, it is impossible to estimate the
variable duty precisely because its level is linked to international prices which are in constant flux.
Guatemala has provided specific examples, using prospective
28 and retrospective 29 methods, to
show that, in both the short and the long term, economic operators cannot reasonably predict
reference prices and the variable duty. 30 The uncertainty is particularly pronounced in the long
term – which is precisely the context in which most world sugar trade is conducted.31
3.14. Even the estimates submitted by Peru itself include substantial margins of error, up to 50%
of the price of a consignment. 32 Peru alleges that such margins of error reflect a
"reasonable degree of estimation". 33 On the contrary, Peru's examples demonstrate that
predictability is a rhetorical illusion invented by Peru.
3.15. In any event, Guatemala does not deem it necessary to conduct this type of analysis.
Peru owes it to the Government of Guatemala and other WTO Members to comply with Article 4.2.
Actions whereby private entities may seek to mitigate the trade impact of measures that are in
violation of a rule do not remedy that violation and are therefore irrelevant. Otherwise, it would
be easy for Members to avoid any obligation under the covered agreements.
34
3.16. Third, the variable additional duties an d the PBS distort the prices of imports, thereby
impeding the transmission of trends in the prices of such imports to the Peruvian market. This is
the express purpose and the practical effect of the Peruvian regulation. 35 The variable duties are
precisely calibrated to bridge the gap between two parameters, namely the reference price and the
floor price.36 The measure artificially raises the price of entry for imports, and thus impedes or
seeks to impede the entry of goods at a price below the floor price.
3.17. Guatemala rejects the "isolation" analysis proposed by Peru. That analysis contradicts the
wording of Article 4.2 of the Agreement on Agri culture and the other covered agreements. When
the negotiators wished to link the legal characterization of a measure to its economic effects, they
said so explicitly.37 Peru's analysis also contradicts the case law under Article 4.2. 38 The Appellate
Body has attached importance to the fact that variable levies neutralize fluctuations in the prices of
imports subject to such levies . Thus, the transmission of these prices to the domestic market is
impeded.39 Contrary to what is alleged by Peru, the criterion used by the Appellate Body does not

25 Second written submission of Guatemala, paras. 4.37 to 4.41.
26 First written submission of Guatemala, paras. 4.58-4.63.
27 First written submission of Guatemala, paras. 4.64-4.68.
28 Response of Guatemala to Panel question 53, paras. 4.72 to 4.74.
29 Second written submission of Guatemala, paras. 4.61 to 4.71.
30 Response of Guatemala to Panel question 53, paras. 107-122.
31 Response of Guatemala to Panel question 7, para. 6.
32 Comment by Guatemala on Peru's response to Panel question 109, paras. 67 to 78.
33 Response of Peru to Panel question 109, para. 61.
34 Response of Guatemala to Panel question 53, paras. 118 to 120. Second written submission of
Guatemala, paras. 4.54 to 4.56. Comment by Guatemala on Peru's response to Panel question 109, para. 26.
35 First written submission of Guatemala, para. 4.74.
36 First written submission of Guatemala, paras. 4.75-4.78. Opening statement by Guatemala at the first
substantive meeting of the Panel with the parties, paras. 17-20.
37 Response of Guatemala to Panel questions 46 and 57, paras. 140-144.
38 Response of Guatemala to Panel questions 46 and 57, paras. 140-153.
39 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 17-20. Response of Guatemala to Panel questions 46 and 57, paras. 146-151.

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concern whether there is a correlation between av erage price trends in the domestic market and
international prices.
3.18. In addition, there is no economic logic in the mere presentation by Peru of the correlation or
lack of correlation. Peru takes no account of the wide range of factors that impact and determine
the domestic price.40 The measure at issue does not control or apply these factors. 41 What is even
more important is that the possible existence of a correlation does not demonstrate a lack of
effects produced by the PBS. For example, in the case of sugar, Peru exempts most imports from
the PBS, under free trade agreements. As a result, any isolating effect that the PBS may have is
undermined by the effects of imports entering outside the PBS.
42 Moreover, the correlation index is
not a suitable criterion, because it does not capture the different degrees of price fluctuation. 43 In
addition, Peru's analysis requires the Panel to reach an arbitrarily binary conclusion as to the
existence or non-existence of correlation during a period of 13 years.44 Guatemala has also pointed
to a number of methodological shortcomings with respect to the way in which Peru compares
domestic and international prices.
45
3.19. The isolation analysis proposed by Peru would also result in a meaningless legal criterion,
devoid of any legal certainty. Depending on fluctuations in economic circumstances, the same
measure could be an offending measure in one Member, but not in another, or its WTO
consistency could vary in the same Member, according to the period analysed.
46 Moreover, in
some Members, the characteristics of the domestic market would not at all permit application of
the analysis proposed by Peru.
47
3.20. In substance, the "isolation" analysis is an attempt to introduce through the back door a
trade effects test which has been repeatedly rejected - over a period of decades - under the GATT
and the WTO, even by the Appellate Body itself. 48The logic underlying that rejection also applies
under Article 4.2 of the Agreement on Agriculture.
3.21. If the Panel were to decide to give any credence to Peru's analysis, Guatemala considers
that - apart from the many shortcomings mentioned above - the Panel would also have to take
into account the fact that the Peruvian measure has completely eliminated Guatemalan imports
and that the origin of imports has been changed to origins not covered by the PBS.
49
3.22. In the light of the foregoing, Guatemala requests the Panel to find that the measure at issue
constitutes a variable import levy or similar measure, within the meaning of Article 4.2 of the
Agreement on Agriculture.
3.2.2 The measure at issue constitutes a minimum import price or similar measure
3.23. Guatemala maintains that, in the light of the criterion enunciated by the Appellate Body, the
measure at issue is a minimum import price or si milar measure, since the floor price of the PBS
operates as a minimum level of imports.
50 When the reference price is below the floor price, the
system orders the imposition of a specific duty equal to the difference between those
two parameters. The size of the specific duty will augment in line with the difference between the

40 Response of Guatemala to Panel questions 46 and 57, paras. 159-165.
41 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
para. 21. Response of Guatemala to Panel questions 46 and 57, paras. 155-157.
42 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties, para
22. Response of Guatemala to Panel questions 46 and 57, paras. 163-169.
43 Second written submission of Guatemala, footnote 101.
44 Second written submission of Guatemala, paras. 4.103-4.107.
45 Second written submission of Guatemala, paras. 4.94-4.100.
46 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 173-174.
47 Opening statement by Guatemala at the first substantive meeting of the Panel with the parties,
paras. 175-177.
48 Response of Guatemala to Panel questions 46 and 57, paras. 178-186.
49 Response of Guatemala to Panel questions 46 and 57, paras. 194-195. Response of Guatemala to
Panel question 147, para. 209.
50 First written submission of Guatemala, para. 4.88.

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floor price and the reference price. In addition, th e measure at issue distorts the transmission of
declines in international prices to the national market.51
3.24. By way of a defence, Peru has alleged that the PBS has no target price52, which is allegedly
made clear by the fact that some imports of sugar – less than 3% – 53 enter Peru with a final cost
(i.e. CIF import price plus variable additional duty) that is lower than the floor price. Guatemala
considers that this is not a valid criterion for determining the legal nature of the PBS.
Peru proposes a legal characterization of the me asure at issue based on isolated and exceptional
instances where the measure did not produce the results provided for by its design.
54
3.25. Guatemala maintains that the PBS is in fact a target price or objective price, which consists
in the floor price.55 Moreover, the possibility that some shipments enter Peru with a final cost lower
than the floor price is not a factor conducive to resolving the legality of the Peruvian measure.
Peru has explained that only 3% of total sugar imports entered Peru with final costs below the
reference price, and hence below the floor price. 56 This confirms Guatemala's position that those
instances are genuinely exceptional. It would be wrong to conclude that the PBS is not a minimum
import price (or a measure similar to a minimum import price) because in some isolated and
exceptional instances the measure did not produce the expected results.
3.26. Peru's approach can be said to be wrong for a number of other reasons: (i) it would ignore
the design, structure and architecture of the meas ure itself, which seeks to impose an additional
duty equal to the price of entry at the level of the floor price 57; (ii) the reference price is a value
which, according to the calculation method selected by Peru, is similar to the price of a real import
transaction
58; (iii) Peru's argument could be turned round to reach a contrary conclusion, that is,
that the measure is in fact a minimum price because most (97%) sugar consignments enter Peru
with a final cost equal to or above the floor price 59; (iv) even if many consignments entered Peru
with a price lower than the reference price in the course of a particular two-week period, that
situation would be temporary since it would be corrected in the following two weeks by the
updating of the reference price 60; and (v) even if the measure at issue did not succeed in some
cases in equalizing entry prices with the floor price, the measure has the de facto effect of
equalizing entry prices with another parameter: the price resulting from the sum of the lowest
international price and the variable additional duty.61
3.27. It is obvious from all of the above that Peru's factual observations lead to no valid legal
result. An analysis of the design, structure and architecture reveals that the measure in question is
a minimum import price in terms of Article 4.2 of the Agreement on Agriculture, or a similar
measure.
3.3 The measure at issue is inconsistent wi th Article II:1(b), second sentence, of the
GATT 1994
3.28. Article II:1(b), second sentence, establishes disciplines for "other duties or charges". 62 The
sentence in question has been clarified by the Understanding, so that the two texts, read in
conjunction, provide that the other duty or charge must meet the following requirements: (a) the
duty or charge, or the mandatory legislation under which it is to be applied, must have existed at
15 April 1994; (b) it may not exceed the level of the duty or charge applied on 15 April 1994; and

51 First written submission of Guatemala, paras. 4.88-4.93.
52 First written submission of Peru, paras. 5.61–5.68; opening oral statement by Peru at the
first substantive meeting of the parties with the Panel, para. 41.
53 Response of Peru to Panel question 123, para. 99.
54 Second written submission of Guatemala, para. 4.136. Response of Guatemala to Panel question 123,
paras. 119–120.
55 Response of Guatemala to Panel question 59, para. 201.
56 Response of Peru to Panel question 123, para. 99.
57 Response of Guatemala to Panel question 123, paras. 119 and 122.
58 Response of Guatemala to Panel question 125, paras. 133 and 134.
59 Second written submission of Guatemala, para. 4.139.
60 Response of Guatemala to Panel question 124, paras. 128 to 132.
61 Response of Guatemala to question 59, para. 203. Response of Guatemala to question 126,
paras. 135 to 152.
62 First written submission of Guatemala, para. 4.102.

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(c) it must have been recorded in the sched ule of concessions of the importing Member. 63 These
three obligations are cumulative.64
3.29. Guatemala contends that the variable additional duty is one of the "other duties or charges"
and is not recorded in Peru's schedule of concessions; it was not applied at the date of entry into
force of the GATT 1994; nor was it stipulated in the binding Peruvian legislation in force on the
date of entry into force of the GATT 1994. Contrary to Peru's understanding, Guatemala has not
claimed that Peru's other duties and charges exceed those applied at the date of the GATT 1994.
65
An examination of that matter is unnecessary, since the measure in question entered into force in
2001.66
3.30. Peru, for its part, alleges that the variable additional duties are consistent with
Article II:1(b) or the GATT 1994 because they are "ordinary customs duties". 67 In support of this
allegation, Peru erroneously applies the legal standards established in the case law 68 and seeks to
define "ordinary customs duties" on the basis of positive criteria, notwithstanding its recognition
that those criteria are not exclusive of ordinary customs duties.
69
3.31. In this way, Peru eliminates the distinction between this concept and that of "other duties or
charges".70 Guatemala has explained that a positive criterion that applies both the concept of
"ordinary customs duties" and "other duties or char ges" is of no value for the classification of a
charge and, if it is determined that only one characteristic exists which prevents a charge from
being considered an "ordinary cust oms duty", it would have to be concluded that it is an "other
duty or charge".71
3.32. On the other hand, in its response to Panel question 16, Peru simply asserts that the "GATT
contracting parties were aware of the existence of the specific duties introduced in 1991 during the
Uruguay Round negotiations". 72 According to Peru, the contracting parties primarily concerned
were informed of the existence of these specific duties, and it was for that reason that they
accepted the binding of different tariff ceilings fo r twenty products. It presents no evidence to
support these assertions.73 Peru adds that all of this was "reviewed and verified" at a meeting of
the Group on Review and Verification of Market Access Offers for Industrial and Agricultural
Products and that "there was no objection or comment from any of the participating trading
partners".74 Contrary to Peru's contention, the fact that Peru's offer was accepted by some of the
negotiating parties during the Uruguay Round does not imply any type of validation of the measure
that is challenged. Not all Members even have th e possibility of validating measures that run
counter to WTO Agreements, except where an exemption is concerned.
75 Nor can Peru legitimately
contend that, on the basis of its own "good faith understanding" that it was negotiating in
accordance with certain guidelines, the variable additional duties would have had to be considered,
automatically and unconditionally, as ordinary customs duties.
76 Still less valid is Peru's argument
that the tariff ceiling of 68% for certain products reflects the PBS "binding".
3.33. In other words, the fact that the additional duty "shares" certain characteristics of ordinary
customs duties 77; that there were no objections during the Uruguay Round negotiations 78; or

63 First written submission of Guatemala, para. 4.114.
64 First written submission of Guatemala, para. 4.114; Response of Guatemala to Panel question 43,
para. 94.
65 First written submission of Peru, para. 5.97.
66 Opening statement by Guatemala at the first substantive meeting, para. 63.
67 First written submission of Peru, paras. 5.2 and 5.4.
68 First written submission of Peru, paras. 5.26–5.41.
69 First written submission of Peru, para. 5.38; Second written submission of Peru, paras. 3.14 to 3.15.
70 Opening statement by Guatemala at the first substantive meeting, paras. 48 to 50.
71 Response of Guatemala to Panel question 128, paras. 157 and 158.
72 Response of Peru to Panel question 16, para. 24.
73 Guatemala observes that Exhibits PER-15 and PER-62 reflect the opinions of the Peruvian authorities
and are not relevant for the purpose of demonstrating that they notified and/or communicated to the
CONTRACTING PARTIES of the GATT the existence of the specific duties and the 1991 system.
74 Response of Peru to Panel question 16, para. 24.
75 Opening statement by Guatemala at the first substantive meeting, paras. 52 and 53. Second written
submission of Guatemala, paras. 5.48 to 5.51.
76 First written submission of Peru, paras. 5.48 to 5.50; opening statement by Guatemala at the
first substantive meeting, paras. 54 to 57. Second written submission of Guatemala, paras. 5.44 to 5.47.
77 First written submission of Peru, Section 5.1.3.

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Peru's own opinions on its own conduct 79, do not refute the prima facie case presented
by Guatemala.80 As was pointed out above 81, the variable additional duties have characteristics
that prevent them from being considered as "ordinary customs duties". 82 Guatemala also put
forward 10 additional factors to confirm that the variable additional duty, in Peru's own legal
system, is different from an ordinary customs duty. 83 None of these factors was addressed or
refuted by Peru, except at a late stage of thes e proceedings. Peru's rebuttals are invalid and
do nothing to change the nature of the measure at issue. Guatemala explained that the 10
additional factors identified in Peruvian legislation serve to "confirm" the conclusion that the
variable additional duties are not "ordinary customs duties". 84 This is a "confirmation" because the
finding that the measure at issue is inconsistent with Article 4.2 of the Agreement on Agriculture
would lead to the conclusion that the variable additional duties are not "ordinary customs duties".
Guatemala also made it clear that the Peruvian legislation must be considered as part of the facts
of the dispute; in concrete terms, as "evidence of characteristics that distinguish variable
additional duties from ordinary customs duties".
85 The variable additional duties therefore
constitute one of the "other duties or charges".
3.34. It is an undisputed fact that Peru di d not record them as such in its schedule of
commitments.86 That fact alone shows that Peru violated Article II:1(b) of the GATT 1994, and its
omission is irremediable.87
3.35. In addition, Guatemala has demonstrated, contrary to Peru's assertion 88, that the measure
challenged did not exist on 15 April 1994. 89 Guatemala not only described the characteristics that
distinguish the 1991 system from that of 2001 90, but it also submitted two exhibits which
confirm that the Peruvian Government itself had concluded that the measure in question
abolished the 1991 system; that is to say that they are two distinct measures. 91 In alleged
support of its arguments, Peru also submitted an exhibit showing that even the authorities of the
Ministry of Economy and Finance – the authorit y responsible for publishing the PBS reference
prices – have the same understanding. 92 All of this is further confirmation of a violation of
Article II:1(b) of the GATT 1994.
3.36. In the light of the foregoing, the variable additional duty imposed by Peru is inconsistent
with the second sentence of Article II:1(b) of th e GATT 1994 and with paragraphs 1, 2, 3 and 4 of
the Understanding on the Interpretation of Articl e II:1(b) of the General Agreement on Tariffs and
Trade 1994.

78 First written submission of Peru, para. 5.49.
79 First written submission of Peru, para. 5.50.
80 Opening statement by Guatemala at the first substantive meeting, paras. 48 to 57.
81 See above, paras. 3.4 to 3.24.
82 First written submission of Guatemala, paras. 4.119 to 4.121.
83 First written submission of Guatemala, para. 4.125.
84 First written submission of Peru, para. 5.44; opening statement by Guatemala at the first substantive
meeting, para. 47; response of Guatemala to Panel question 64, para. 217. Opening statement by Guatemala
at the second substantive meeting, para. 30. Second written submission of Peru, para. 3.32. Responseof
Guatemala to Panel question 134, paras. 186 to 188.
85 Response of Guatemala to Panel question 129, paras. 163 to 166.
86 First written submission of Peru, para. 5.49; opening statement by Guatemala at the first substantive
meeting, para. 65.
87 Response of Guatemala to Panel question 43, para. 94.
88 First written submission of Peru, para. 5.45; Second written submission of Peru, paras. 3.16 to 3.22.
89 Opening statement by Guatemala at the First Substantive Meeting, paras. 58 to 62. Second written
submission of Guatemala, paras. 5.63 to 5.73. Response of Guatemala to Panel question 133, paras. 175
to 185.
90 Opening statement by Guatemala at the first substantive meeting, para. 60. Second written
submission of Guatemala, paras. 5.63 to 5.73.
91 Opening statement by Guatemala at the first substantive meeting of the parties with the Panel,
paras. 61-62. Exhibit GTM-36 and Exhibit GTM-37.
92 Exhibit PER-87, page 14, para. 4.11.

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3.4 Peru's actions are inconsistent with Ar ticle X:1 of the GATT 1994 given its failure to
publish various aspects of the measure at issue
3.37. The publication requirement under Article X:1 of the GATT 1994 applies not only to
administrative rulings of general application, but to any "essential element" forming part thereof.93
3.38. Peru is in breach of Article X:1 of the GATT 1994 since it has failed to publish the following
three essential elements of the measure in questi on: (i) the content of the 3% import costs that
are used to determine the variable additional duty; (ii) the methodology for determining the
amounts of freight and insurance that are used to determine the floor price and the reference
price; and (iii) the international prices used as a basis for calculating the floor price and the
reference price.
94
3.39. The foregoing elements come within the scope of Article X:1 inasmuch as,
being methodologies or data essential to the operation of the PBS, they are essential elements of
the measure in question. What is more, Peru has recognized that "international prices are an
essential part of the PBS and a component in the calculation of the price band" (emphasis
added).95
3.40. Peru is in breach of its obligation to publicize these elements in a way that enables traders
and other governments to familiarize itself with the content of the rules and the charges imposed
on them.96 Consequently, Peru's actions are inconsistent with Article X:1 of the GATT 1994 with
respect to each of these three elements of the measure.
3.5 Peru's actions are inconsistent with Article X:3(a) of the GATT 1994 because it
administers the measure in question in a manner that is not uniform, impartial or
reasonable
3.41. Article X:3(a) of the GATT 1994 provides that WTO Members shall administer their trade
regulations "in a uniform, impartial and reasonable manner". The requirements of uniformity,
impartiality and reasonableness are legally independent, so that failure to comply with any of them
would imply an independent breach of Article X:3(a) of the GATT 1994. 97 It has been found that,
if a country administers any trade regulation in a manner not provided for in its own internal
legislation, this would qualify as an unreasonable administration that would be in breach of
Article X:3(a).98
3.42. Guatemala has identified four anomalies of the PBS which give cause for claims under
Article X:3(a) of the GATT 1994: (i) the decision to extend the validity of the customs tables
without applying the formulas required by the Peruvian regulations; (ii) the calculation of the
price band for dairy products on the basis of reference price ranges; (iii) the establishment of
reference prices for dairy products at the same level for two consecutive two-week periods; and
(iv) the calculation of the variable additional duty for two different categories of rice.
99
3.43. In its defence, Peru has attempted to explain that those practices do have a legal basis in its
regulations. However, those attempts have been fruitless. Peru has cited legal instruments that
were in force under the previous 1991 system of specific duties, but which are no longer valid 100;
or alternatively it has argued that, inasmuch as those anomalies were noted from the time of the
first customs tables, this means that the authorities are now acting with proper legal authority.
101

93 First written submission of Guatemala, para. 4.148 (citing the Panel Report, Dominican Republic –
Import and Sale of Cigarettes, para. 7.405).
94 First written submission of Guatemala, paras. 4.150-4.172.
95 Response from Peru to question 115, para. 76. The same acknowledgement was made by Peru in
para. 3.61 of its Second written submission.
96 Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.406-7.407.
97 Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.383.
98 Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.385-7.388.
99 First written submission of Guatemala, para. 3.88.
100 Opening statement by Guatemala at the first substantive meeting of the parties with the Panel,
para. 71. Response of Guatemala to Panel question 142, paras. 197-200.
101 Response of Guatemala to Panel question 143, paras. 201-206.

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3.44. Peru has also argued that the legal authority for these practices resides in the general
powers of the Executive to establish and modify tariffs at its discretion. 102 Guatemala considers
that a reference to the general powers of the Executive to modify tariffs is of no relevance to this
analysis. What is important is to note that, under Supreme Decree No. 115-2001-BF there is
no discretionary power enabling the Peruvian authorities to refrain from imposing duties resulting
from the PBS.103
3.45. Consequently, by resorting to practices not provided for in its internal regulations,
Peru administers the measure at issue in a manner that is unreasonable under the terms of
Article X:3(a) of the GATT 1994.
3.6 Claims under the Agreement on Customs Valuation
3.46. Guatemala is submitting its claims under the Customs Valuation Agreement in the
alternative, in case the Panel reaches the conclusion that the measure at issue is an ordinary
customs duty.
104
3.47. Under the Customs Valuation Agreement, WTO Members must base the customs value of
goods on the transaction value that is provided by the importer or, failing this, they may
determine the value in question on the basis of one of the methods established in Articles 1 to 7 of
the Agreement.
3.48. The variable additional duty is not determined on the basis of the weight of the imported
goods, but on the basis of a price for the goods. However, this price is not the transaction value
provided by the importer, but the reference price pu blished by Vice-Ministerial Resolution of Peru's
Vice-Minister of the Economy. This means that, by virtue of the price band system, Peru totally
ignores the transaction value and, instead, uses minimum, arbitrary or fictitious customs values, in
violation of Articles 7.2(f) and 7.2(g) of the Customs Valuation Agreement.
3.49. Peru appears not to understand Guatemala's claims. In its opinion, the Customs Valuation
Agreement "only contains principles for situations in which duties are imposed on the basis of a
value, and which are not applicable to specific duties levied on the basis of quantity, item or
weight.
105 However, the variable additional duty is not calculated on the basis of "quantity, item or
weight" as alleged by Peru.106
3.50. Therefore, by determining the customs va lue of the goods subject to the measure through
an improper use of minimum, arbitrary or fictitious customs values, Peru is acting inconsistently
with Articles 1, 2, 3, 5, 6 and 7 of the Customs Valuation Agreement.
4 GUATEMALA HAS INSTITUTED PROCEEDINGS BEFORE THIS PANEL IN GOOD FAITH
AND IN STRICT CONFORMITY WITH THE RULES OF THE RELEVANT LEGAL INSTRUMENTS
4.1. Peru has requested the Panel not to consider Guatemala's claims since, in its opinion,
Guatemala has not acted in good faith in initiating this dispute settlement procedure.
107 In support
of its request, Peru ambiguously puts forward four erroneous arguments: (a) that Guatemala,
"either explicitly or by necessary implication", waived any rights it might have under the
WTO Agreements that were inconsistent with what had been agreed in the FTA 108; (b) that
Guatemala expressly accepted the Peruvian price band in the Guatemala-Peru Free Trade
Agreement (FTA) and that the initiation of this dispute settlement procedure defeats its object and
purpose
109; (c) that there has been an abuse of rights, because Guatemala considered the price
band system to be consistent with the framework of the WTO Agreements 110; and (d) that

102 Second written submission of Peru, para. 4.5. Response from Peru to question 141, para. 138.
103 Comment by Guatemala on Peru's response to Panel question 103, paras. 11-14. Comment
by Guatemala on Peru's response to Panel question 107, para. 19.
104 First written submission of Guatemala, para. 4.222.
105 First written submission of Peru, para. 5.142.
106 First written submission of Peru, para. 5.142.
107 First written submission of Peru, section 4.1. Second written submission of Peru, section 2.
108 First written submission of Peru, para. 4.26.
109 First written submission of Peru, para. 4.20; opening statement by Peru, para. 32.
110 First written submission of Peru, para. 4.11.

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Guatemala agreed to modify its rights and obligations in the WTO framework insofar as they might
be inconsistent with the FTA.111
4.2. None of these contentions has any basis in the facts, the rules or the jurisprudence.
First, despite its express denial112, Peru is invoking the estoppel principle in support of its request.
Although this principle has been invoked in previo us WTO disputes, it has never been applied as a
valid defence to limit the rights of the complaining country. In fact, the Appellate Body has
emphasized that "it is far from clear that the estoppel principle applies in the context of WTO
dispute settlement".
113
4.3. Even assuming that the estoppel principle is applicable in WTO disputes, the assertion that
any WTO Member has waived its rights under the DSU "cannot be lightly assumed". 114 If a WTO
Member has not clearly stated that it will not submit a claim with respect to a specific measure, it
cannot be regarded as having failed to act in good faith if it challenges that measure.115
4.4. Nor does Guatemala accept that such a statement can be made through the FTA. Rather, a
waiver of WTO rights would have to be made within the WTO legal framework, for example
by means of a mutually agreed solution, under Article 3.5 of the DSU, in a dispute that has already
been initiated, or through a multilateral agreement. 116 Peru would also have to demonstrate that
Guatemala clearly waived its right under the DSU to challenge the price band system before the
WTO. The FTA simply does not contain any provision of that nature.117
4.5. Second, paragraph 9 of Annex 2.3, which Peru presents as the basis for its claims, should
be read in conjunction with Article 1.3.1 of the FTA in which the parties confirmed "the rights and
obligations existing between them in accordance with the WTO Agreement". The aforementioned
provisions indicate that, although Peru has the right to maintain its PBS for a limited number of
products, Peru also has the obligation to comply with the provisions of the WTO Agreement. Since
neither of the two sets of provisions contains mutually exclusive obligations, there is no conflict or
inconsistency between the FTA and the WTO Agreements.
118 Therefore, Peru is not exempted from
complying with its WTO obligations, and Guatemala is not impeded from exercising its WTO rights,
including the possibility of validly challenging the measure at issue.
119
4.6. Third, in contrast to Peru's assertions, the FTA contains no provisions indicating that
Guatemala recognized the price band system as consistent with WTO rules. This type of
interpretation simply cannot be derived from the ordinary meaning of the terms used in the
aforementioned provisions.
120
4.7. Fourth, contrary to Peru's opinion, the FTA is not a vehicle for modifying rights and
obligations under the WTO Agreements. These ag reements can only be modified through the
procedures established in Article X of the Marrakesh Agreement.121
4.8. Guatemala also explained that Peru's subm issions would require the Panel to act outside its
terms of reference, since it would have to establish its jurisdiction to hear a non-WTO dispute (i.e.
to entertain disputes regarding the FTA, which does not form part of the covered agreements).
122
Guatemala also made it clear that Peru's submissions would require the Panel to interpret

111 First written submission of Peru, para. 4.22 and 4.28; opening statement by Peru, paras. 24-28.
112 Second written submission of Peru, para. 2.47.
113 Appellate Body Report, EC - Export Subsidies on Sugar, para. 310.
114 Appellate Body Report, EC - Bananas III (Article 21.5- Ecuador II), para 217.
115 Appellate Body Report, EC - Bananas III (Article 21.5 - Ecuador II), para. 228. (Emphasis added)
116 Opening statement by Guatemala at the first substantive meeting, para. 82; see also the third party
submission by the United States, para. 50. Response of Guatemala to Panel question 91, para. 19.
117 Opening statement by Guatemala at the first substantive meeting, para. 83. Second written
submission of Guatemala, section 9.1
118 Response of Guatemala to Panel question 25, paras. 51-56. Second written submission of
119 Opening statement by Guatemala at the first substantive meeting, paras. 84 and 85.
120 Opening statement by Guatemala at the first substantive meeting, para. 83.
121 Response of Guatemala to Panel question 21, para. 35.
122 Response of Guatemala to Panel question 21, para. 35. Response of Guatemala to Panel question 27,
paras. 58 and 59. Second written submission of Guatemala, section 9.2.

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provisions of the covered agreements on the basis of a legal instrument to which not all
WTO Members are parties.123
4.9. Finally, Peru argued that Article 3.7 of the DSU establishes "prerequisites" for instituting a
dispute settlement procedure.124 This is incorrect. The text of Article 3.7 of the DSU shows that the
exercise of judgement as to whether action under the WTO dispute settlement procedures would
be fruitful is an exercise incumbent solely on the Member initiating a dispute.125
4.10. For all of these reasons, Peru lacks any justification for affirming that Guatemala has not
acted in good faith in challenging the price band system before the WTO.
5 REQUEST FOR RULINGS AND RECOMMENDATIONS
5.1. On the basis of the foregoing, Guatemala requests the Panel to issue findings and rulings
on the following:
 The measure at issue is inconsistent with Arti cle 4.2 of the Agreement on Agriculture, as
it constitutes a variable import levy or a measure similar thereto;

 The measure at issue is inconsistent with Article 4.2 of the Agreement on Agriculture as
it constitutes a minimum import price or a measure similar thereto;

 The measure at issue is inconsistent with Article II:1(b), second sentence, of the
GATT 1994, since it is included under the "other duties or charges" of that provision.
At the same time, the measure in question is not recorded in Peru's schedule of
concessions, was not applied at the date of entry into force of the GATT 1994, and was
not stipulated in the binding Peruvian legislation in force on the date of entry into force
of the GATT 1994;

 Peru's actions are inconsistent with Article X:1 of the GATT 1994, given its failure to
publish: (i) the content of the "import costs"; (ii) the methodology for determining the
amounts for freight and insurance; and (iii) the international prices that form the basis
for calculating the floor price and the reference price.

 Peru's actions are inconsistent with Article X:3(a) of the GATT 1994, given its failure to
administer the measure at issue in a uniform, impartial and reasonable manner, in
relation to: (i) the decision to extend the va lidity of the customs tables without applying
the formulas required by Peruvian regulations; (ii) the calculation of the price band for
dairy products on the basis of reference price ranges; (iii) the establishment of reference
prices for dairy products at the same level for two consecutive two-week periods; and
(iv) the calculation of the variable additional duty for two different categories of rice.

 In the event of a finding that the measur e at issue is an ordinary customs duty,
Peru would be acting inconsistently with Articles 7.2(f) and 7.2(g) of the Agreement
on Customs Valuation, since it determines the customs value of the goods subject to the
PBS through the use of minimum, arbitrary or fictitious customs values. As a result,
Peru would also be acting in violation of Ar ticles 1, 2, 3, 5, 6 and 7 of the Customs
Valuation Agreement.

5.2. In addition to the foregoing, and in accordan ce with the provisions of the second sentence of
Article 19.1 of the DSU, Guatemala requests the Panel to suggest that Peru should completely
dismantle the measure at issue.

123 Response of Guatemala to Panel question 21, para. 35.
124 Response of Peru to Panel question 88, para. 1; Response of Peru to Panel question 92, para. 7.
125 Response of Guatemala to Panel question 96, paras. 29-32.

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ANNEX B-3
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF PERU
1 INTRODUCTION
1.1. Peru has demonstrated why Guatemala's request for the "dismantling" of Peru's Price Band
System ("PBS") should be rejected, together with each and every one of its allegations and legal
claims. In accordance with the working procedures adopted by the Panel, in this document Peru
will summarize the facts and arguments presented to the Panel to date.
 The PBS is a mechanism for determining specific duties for certain agricultural products.
It is the improved version of a mechanism that has existed since 1991.

 Guatemala signed a free trade agreement with Peru (the "Peru-Guatemala FTA") in
which it was expressly agreed that Peru ca n maintain the PBS and that that agreement
would prevail over the WTO Agreements in the event of any inconsistency.

 Guatemala now repudiates what was agreed in the Peru-Guatemala FTA because of
pressure from its sugar producing sector, following a fall in the price of sugar.
Guatemala is prohibited from submitting claims in the WTO if it is not acting in good
faith.

 There is no inconsistency whatsoever between Peru's specific duties and Article II:1(b) of
the GATT 1994 and Article 4.2 of the Agreemen t on Agriculture, as they are ordinary
customs duties which were bound during th e Uruguay Round. Peru has never exceeded
that binding.

 In any event, the specific duties are not variable import levies or minimum import prices,
or similar measures within the meaning of th e footnote to Article 4.2 of the Agreement
of Agriculture.

 Peru has published all the essential elements of the specific duties that may arise
from the administration of the PBS, consistent with Article X:1 of the GATT 1994.

 Peru has administered the PBS in a uniform, impartial and reasonable manner, in
accordance with Article X:3 of the GATT 1994.

 The provisions of the Customs Valuation Agreement invoked by Guatemala are not
applicable, as they only apply to ad valorem duties.

2 FACTUAL BACKGROUND
2.1 The Price Band System
2.1. The PBS is a mechanism developed by Peru to calculate the specific duties that have formed
part of Peru's tariff policy for more than two de cades. The system of specific duties calculated
on the basis of international prices was introduced in 1991 and formed part of the tariff offer made
by Peru to its negotiating partners in the Uruguay Round.
2.1.1 Development within the tariff framework
2.2. Peru applies two types of tariff duties, ad valorem and specific duties, which when combined
generate the so-called "mix ed" or "compound" tariff.
1 Peruvian legislation expressly recognizes
that both ad valorem and specific duties are tariff duties. Not only has Peru prohibited all non-tariff

1 Ministry of the Economy and Finance, Definiciones, Exhibit PER-6.

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measures during a process of reform and trade liberalization 2, but Decree Law No. 26140 made
explicitly clear the fact that the specific duties are tariff measures. 3 In accordance with the legal
regime of the Constitution and organic laws, bo th types of duty have been ordered by the
executive power and by Supreme Decree, endorsed by the Minister of the Economy and Finance.4
2.3. Peru introduced specific duties for certain agricultural products in 1991, by means of
Supreme Decree No. 016-91-AG. 5 At the outset, the specific duties were applied to 18 tariff
headings for rice, sugar, dairy, maize and wh eat products, and they were determined in
accordance with (i) an international reference price and (ii) the respective customs tables.6
2.4. Peru has developed the system since 1991. As the following timeline shows, the main
changes to the mechanism since 1991 have not altered the essential features or the legal nature
of the measure.
7
1991
Introduction of the tariff
1993 - 2001
Development of the mechanism
(with no ceiling price)
2001 - present
"Improvement" of the
mechanism
(with ceiling price)
FTA
 DS457
D.S. 016-91-A G
 Specific duties
 Reference price
 Customs tables
D.S. 114-93-EF / D.S. 133-94-EF
 Specific duties
 Reference price
 Customs tables
 Publication of reference prices
 Methodology (tables)
D.S. 115-2001-EF
 Specific duties
 Reference price
 Customs tables
 Publication of reference prices
 Methodology (tables)
 Tariff rebates

2.5. It is obvious that the PBS is not a new measure but a refinement of the mechanism that has
existed since 1991. Supreme Decree No. 021-2001-EF had already mentioned the need to make
proposals for improving the system.
8 Supreme Decree No. 115-2001-EF establishing the PBS
explicitly states that it is a refined and updated version of the pre-existing system.9
2.1.2 Tariff binding during the Uruguay Round
2.6. During the Uruguay Round, Peru negotiated tariff bindings with its main trading partners,
which accepted Peru's offer.
2.7. As indicated in Section I-A of Part I of Peru's Schedule XXXV at the end of the Uruguay
Round, all agricultural products in Annex I of the Agreement on Agriculture were bound at 30%,
with the exception of rice, sugar, dairy, maize and wheat – that is, the products subject to specific

2 See Supreme Decree No. 60-91-EF, Exhibit PER-10; Legislative Decree No. 668, Exhibit PER-11;
Decree Law No. 25988, Exhibit PER-12.
3 Decree Law No. 26140, Exhibit PER-53, Article 1.
4 See Political Constitution of Peru, Exhibit PER-1, Article 74; Law No. 29158, Exhibit PER-2, Article 11;
Organic Law, Legislative Decree No. 183, PER-4, Article 5.
5 Supreme Decree No. 016-91-AG, PER-22.
6 Ibíd, Article 1.
7 See slide 1 of 15 January 2014, Peruvian Exhibit PER-57.
8 Supreme Decree No. 021-2001-EF, Exhibit PER-49.
9 Supreme Decree No. 115-2001-EF, Exhibit GTM-4, preambular part ("following review and evaluation
of the above-mentioned [1991] system, it was deemed necessary to refine it and bring it into line with the
needs of national agriculture, so as to enable domestic producers to plan their investments under conditions of
reduced uncertainty").

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duties in existence since 1991 – which were bound at 68%, over a period of application of
ten years, on the basis of different base rates.10
2.8. The binding of specific duties was carried out in accordance with paragraph 14 of the
"modalities" document issued by the Chairman of the Market Access Group to provide guidance to
countries on how to establish firm commitments in their final offers. The paragraph provides that
"[i]n the case of products subject to unbound ordinary customs duties, developing countries shall
have the flexibility to offer ceiling bindings on these products".
2.9. Accordingly, in the light of the prior elimination of any kind of non-tariff measure in the
country, Peru prepared and submitted its final schedule without going through the so-called
process of "tariffication". There was no reason to go through that process, since following the
elimination of all types of non-tariff measure, Peru's only tariffs were in the form of ad valorem
duties and mixed or compound duties composed of ad valorem and specific duties.
2.10. On 14 December 1993, Peru notified its final offer to the Chairman of the Negotiating Group
on Market Access. Subsequently, in a communication of 27 May 1994, Peru notified that the new
schedule of commitments had been formally accepted by the contracting parties concerned.
2.2 Operation of the PBS
2.11. In May 1991, through Supreme Decree No. 016-91-AG, Peru established the system of
specific duties. From the outset, specific duties were calculated on the basis of the same essential
elements: (i) an international reference price and (ii) customs tables calculated on the basis of
international prices over the previous 60 months.
2.12. Through Supreme Decree No. 115-2001-EF, published on 22 June 2001, the PBS was
established for 47 tariff subheadings corresponding to rice, sugar, dairy and maize. With regard to
the international reference price, this is the fortnightly average of prices for each product in the
designated reference market, converted to a CIF basis by applying certain freight and insurance
costs.
2.13. The main methodological innovation with respect to the customs tables was the introduction
of a "ceiling price", whereby the "band" wa s set between the floor and ceiling prices.
The methodology for calculating the customs table is similar to the existing methodology under the
previous system, with the sole addition of a ceiling price calculation. Under this methodology and
its amendments, Peru has established specific du ties and customs rebates through the publication
of customs tables on 14 occasions.
2.14. Although the analysis in the present case must focus on the specific duties themselves and
not on the methodology of calculation, a summary of the operation of the main elements of the
PBS is provided below:
 Calculation of reference price : The reference price for each product is the fortnightly
average of the price quotations observed on the international reference market for
marker products (with the exception of dairy products, for which the reference quotation
is a monthly one). The reference prices are published by Vice-Ministerial Resolution and
on the web page of the Ministry of the Economy and Finance (MEF).

 Calculation of the price band: Price bands for each product are calculated on the basis of
monthly average FOB prices for the past 60 months on the corresponding international
reference markets, deflated by the United States Consumer Price Index. All prices that
do not fall within a standard deviation of the average price are eliminated. The floor
price of the band is the average of the remaining prices.
11 The ceiling price of the band is
a standard deviation of the original series above the floor price. The floor and ceiling
prices expressed in FOB terms are converted to CIF terms, adding the costs of freight
and insurance.

10 PER-18.
11 Since sugar is a sensitive product, an adjustment factor is applied to the floor price of the sugar band,
which increases that price by 10.7%.

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 Calculation of the specific duty : The MEF and the Ministry of Agriculture and Irrigation
(MINAGRI) publish the bands and the corresponding specific duties in customs tables
approved by Supreme Decree. A specific duty has to be applied when the reference price
is lower than the floor price, i.e. when it fa lls below the band. In no case may the actual
tariff, i.e. the sum of the specific duty and the ad valorem duty, exceed Peru's bound
tariff. On the other hand, when the refere nce price goes above the ceiling price,
i.e. when it rises above the band, the importer is granted a tariff rebate.
In no circumstances may the tariff rebate exceed the sum to be paid by the importer
by way of an ad valorem duty.
12 When the international reference price lies between the
floor price and the ceiling price, i.e. when it is within the band, no specific duty is
applied.

2.3 The Peru-Guatemala FTA
2.15. Peru and Guatemala signed the Peru-Guatemala FTA on 16 December 2011. This Agreement
was the result of a negotiating process in which "the entire tariff universe will be subject to
negotiation".
13
2.16. During the negotiating process, Guatemala recognized that the PBS is a tariff-based system.
Specifically, Annex 2.3 of the Peru-Guatemala FTA provides:
Peru may maintain its Price Band System established in Supreme Decree
No. 1152001EF and the amendments thereto, with regard to the products subject to
the application of the system, as marked with an asterisk (*) in column 4 of Peru's
Schedule set out in this Annex.

2.17. Accordingly, the 47 tariff subheadings for which Peru may maintain the PBS are indicated
with an asterisk in Peru's tariff schedule.
2.18. In addition, Peru and Guatemala agreed to negotiate tariff reductions for the ad valorem
and specific components. In particular, Guatemal a proposed negotiating the non-application of
ad valorem and specific tariffs for a limited quantity of sugar, under heading 17.01 of the
Harmonized System. Nevertheless, on account of th e interests expressed by both countries during
the negotiating process, no agreement was reached on a reduction for that heading. Finally, as a
result of the negotiations, the Parties agreed that Peru could maintain the PBS.
2.19. Moreover, Article 1.3 ("Relationship with other international agreements") contains the
following key provisions:
The Parties confirm their existing mutual rights and obligations under the
WTO Agreement and other Agreements to which they may be Parties.
In the event of any inconsistency between th is Treaty and the Agreements referred to
in paragraph 1, this Treaty shall prevail to the extent of the inconsistency,
unless otherwise provided in this Treaty.

2.20. It is clear that Guatemala (i) negotiated the application of the PBS in the context of tariff
elimination under a free trade agreement; (ii) recognized that the duties to which the PBS
may give rise are in the nature of tariffs; and (iii) explicitly agreed that Peru could maintain the
PBS. The text of the Peru-Guatemala FTA, having being adopted and authenticated by both States,
constitutes a clear expression of their intention to be bound by the content of the Treaty in its
entirety.

12 With regard to the tariff headings covered by the PBS, Peru has systematically reduced the
ad valorem tariff, from an average of roughly 21% in 2001 to practically 0% at the present time. Indeed, for
the rice, sugar and dairy subheadings (i.e. the products subject to the PBS other than maize), Peru maintained
the ad valorem tariff at 0% from 6 March 2008. With regard to the tariff headings for maize, as from
31 December 2010, Peru has maintained the ad valorem tariff at 0% - with the exception of 3 headings
(1108120000, 1108130000 and 3505100000). This means in practice that a tariff rebate is possible only in
respect of three tariff headings for maize.
13 See the General Framework for the negotiation of a free trade agreement between Costa Rica,
Honduras, Guatemala, Panama and Peru, Exhibit PER-51, Article II(2).

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2.21. As an essential precondition for the entry into force of the Peru-Guatemala FTA, the Parties
must exchange written notifications confirming that they have completed their respective
legal procedures.
14
2.22. On 4 July 2013, after initiating the current process, the Guatemalan Congress approved the
Peru-Guatemala FTA as a matter of "national urgency" and declared that the Agreement is
"consistent…with its multilateral obligations in the framework of the World Trade Organization".
Paradoxically, the Panel was established on that same day at the request of Guatemala.
2.23. Peru was unable to continue with its domestic legal procedures since the case brought
by Guatemala has created uncertainty, in the first instance, with regard to that country's conduct,
and in the second instance with regard to the disr uption of the balance achieved in the negotiation
of the above-mentioned FTA.
3 SIGNIFICANCE OF THE PERU-GUATEMALA FTA
3.1. The PBS is fully consistent with Peru's WTO obligations. Never before in the history of the
WTO has a Member sought to challenge, in the multilateral framework, a measure to which it has
explicitly agreed in a bilateral trade agreement. Specifically, Guatemala is seeking "the complete
dismantling" of the PBS in the context of the WT O dispute settlement process, which is totally at
odds with its explicit agreement, in the Peru-Guatemala FTA, that "Peru may maintain its Price
Band System", since it agreed with Peru on the specific products that would be covered by the
PBS.
3.2. Pursuant to Article 18(a) of the Vienna Convention, to which Peru and Guatemala are parties,
when a treaty has been signed and is subject to ra tification for the purpose of its entry into force,
a State that has signed that treaty cannot frustrate its object and purpose, unless it expresses its
desire not be a party to the treaty. Guatemala has not expressed a desire not to be a party to the
Peru-Guatemala FTA; rather, it has undertaken th e "national urgency" procedure for approval of
the treaty.
3.1 Guatemala cannot institute proceedings contrary to good faith
3.3. It is clear that Guatemala has not acted in good faith by expressly accepting the PBS of Peru
in the bilateral FTA and then resorting to the WT O dispute settlement system. Furthermore, it has
committed an abuse of right by invoking the rules of the DSU in relation to situations which,
having regard to its own circumstances, it has considered consistent with the framework of the
WTO Agreement.
3.4. According to the Real Academia Española defi nition, good faith is the "criterion of conduct to
which the honest behaviour of subjects of law must conform" or "in bilateral relations, behaviour in
keeping with the expectations of the other Party". This is precisely what Guatemala has failed to
do by contradicting the Peru-Guatemala FTA, and this is not permissible in international law.
According to the well-known author Bin Cheng:
It is a principle of good faith that a man shall not be allowed to blow hot and cold – to
affirm at one time and deny at another. … Such a principle has its basis in common
sense and common justice. … it is one which courts have in modern times most
usefully adopted. In the international sphere, this principle has been applied in a
number of cases.

3.5. Good faith is a requirement for initiating proceedings under the DSU, in accordance with the
provisions of Articles 3.7 and 3.10 of the DSU, for which reason, in the instant case, Guatemala
does not appear to be in compliance with the essential requirement for instituting proceedings
before the DSB.

14 Peru-Guatemala FTA, Article 19.5, Exhibit PER-65 ("This Treaty shall enter into force sixty (60) days
after the date on which the Parties exchange written notifications confirming that they have completed their
respective legal procedures or on such date as the Parties may so agree").

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3.6. As was explained in the Mexico – Corn Syrup case: Members should not " frivolously set in
motion the procedures contemplated in the DSU". The reference to the principle of good faith in
the context of Article 3.10 of the DSU is addressed in US - FSC , in the following terms: " This is
another specific manifestation of the principle of good faith which, we have pointed out, is at once
a general principle of law and a principle of general international law".
3.7. In this connection, it is relevant to refer to the provisions of the above-mentioned Article 18
of the Vienna Convention, inasmuch as, although the Peru-Guatemala FTA has not entered into
force, the signatory States could not act contrary to its object and purpose. Indeed, in the report
of the Panel that presided over US - Shrimp, it is expressly stated that "[t]he concept of good faith
is explained in Article 18 of the Vi enna Convention which states that 'A State is obliged to refrain
from acts which would defeat the object and purp ose of a treaty'". Consequently, it emerges from
the above-mentioned provision and from Articles 3.7 and 3.10 of the DSU that a claim that is
inconsistent with good faith cannot proceed.
3.8. The Appellate Body in EC – Export Subsidies on Sugar indicated that Articles 3.7 and 3.10 of
the DSU are among the very few provisions "in the DSU that explicitly [limit] the rights of WTO
Members to bring an action", considering that, if the principle of estoppel were applicable, it would
fall within the parameters of those Articles. Unlike the situation in EC – Export Subsidies on Sugar,
for example, where the then European Communities relied on the silence of the complainants in
order to demonstrate their consent to the offences claimed, the facts of this case clearly and
categorically show Guatemala's express acceptance of the PBS.
3.9. In conclusion, it is clear that Guatemala is not acting in good faith by having recourse to the
WTO dispute settlement procedure. In this context, an abuse of right is created by that State when
it invokes the rules and initiates the procedures established in the DSU with regard to the PBS
which it expressly accepted in the bilateral FTA, and it is barred from frustrating the object and
purpose of the FTA by Article 18 of the Vienna Co nvention, which gives expression to the principle
of good faith. For all the above reasons, the conditions laid down by the DSU for initiating a
dispute settlement proceeding are not met in this case. Consequently, Peru requests the Panel not
to continue with the analysis of Guatemala's claims.
3.2 Guatemala has modified its rights with respect to the dismantling of the PBS
3.10. In line with the foregoing, Guatemala ha s no right to seek the dismantling of the PBS,
because Guatemala agreed to modify its rights and obligations in the WTO framework to the
extent that they might be inconsistent with the treaty it has signed with Peru.
3.11. The Appellate Body recognized that Members may waive their rights under the WTO in
EC-Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , where it held
that it was in fact possible for the parties to waive their WTO rights, "if the parties to [the
understandings reached between the parties concerne d] had, either explicitly or by necessary
implication, agreed to waive their right …".
3.12. Unlike EC – Bananas III, the present case is one where Guatemala has in fact waived "either
explicitly or by necessary implication" any rights it might have had under the WTO Agreements
that were inconsistent with what was agreed in the Peru–Guatemala FTA. The fact that it now says
that the PBS is incompatible with Peru's WTO obligations presupposes an incompatibility between
the Peru-Guatemala FTA and the WTO Agreements, in which the bilateral treaty must take
precedence. Consequently, it is neither useful nor correct for the Panel to continue its analysis of
Guatemala's claims as if the Peru-Guatemala FTA did not exist. It is important to emphasize that
the Panel need only consider what the parties' rights are under the WTO Agreements, not under
the Peru-Guatemala FTA, which demonstrates the fact of the waiver.
3.13. It should be noted in this context that there is nothing unusual about Members modifying
their WTO rights by means of trade agreemen ts. Free trade agreements are permitted under
Article XXIV, provided that they meet the requiremen ts of that Article. Likewise, Article 41 of the
Vienna Convention provides that two State parties to a multilateral treaty may modify their mutual
obligations.

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3.14. Guatemala must not be allowed to use the multilateral system in this way. The Panel must
prohibit such abuse by concluding (i) that Guat emala may not engage in a procedure against Peru
in the instant case; or (ii) that Guatemala modified its rights through the Peru-Guatemala FTA.
4 THE SPECIFIC DUTIES THAT MAY RESULT FROM THE PBS ARE FULLY CONSISTENT
WITH THE WTO AGREEMENTS
4.1 Peru's specific duties are ordinary customs duties
4.1.1 If a measure is an "ordinary cust oms duty" it is not inconsistent with
Article II:1(b), second sentence, of the GATT 1994 or with Article 4.2 of the Agreement
on Agriculture
4.1. The first sentence of Article II:1(b) of the GATT 1994 refers to "ordinary customs duties", and
the second to measures that are "other duties or charges". This shows that the second sentence
refers only to the category of measures that are not "ordinary customs duties". Therefore, if it is
established that a measure is an "ordinary customs duty", the second sentence – the only part of
Article II concerning which Guatemala alleges a violation – is not applicable.
4.2. Article 4.2 of the Agreement on Agriculture refers to "any measures of the kind which have
been required to be converted into ordinary cu stoms duties", i.e. not "ordinary customs duties"
themselves. It is clear from the text of Article 4.2 that "ordinary customs duties" cannot
be included among the measures prohibited by that Article, since a measure that is already an
"ordinary customs duty" cannot be converted to one. Furthermore, Article 4.2 of the Agreement on
Agriculture includes an illustrative list of the "measures of the kind which have been required to be
converted into ordinary customs duties" that are prohibited. This shows that Article 4.2 does not
prohibit "ordinary customs duties" and that, on the contrary, the Article prohibits only a group of
measures which are at least similar to those identified in the illustrative list.
4.3. For these reasons, if the Panel determines that Peru's specific duties are "ordinary customs
duties", it must reject Guatemala's claims regard ing the second sentence of Article II:1(b) of the
GATT 1994 and Article 4.2 of the Agreement on Agriculture.
4.1.2 Characteristics of "ordinary customs duties"
4.4. Considering the text of the Agreements , together with the supplementary means of
interpretation and the relevant case law, we may conclude that: "ordinary customs duties"
have certain clear characteristics, including the following:
 They are MFN duties, forming part of the tariff regime : "Ordinary customs duties" are
general customs duties, which means, in the context of Article I of the GATT 1994, that
they are tariffs subject to most-favoured-nation treatment.

 They are applied to imports, and the obligatio n to pay arises at the time of importation :
In accordance with their ordinary meaning, the words "customs duties" mean the
amount paid for the importation of a good. The Appellate Body has recognized that "the
obligation to pay it must accrue at the moment and by virtue of … importation".

 They may be designed to collect revenue and protect the domestic industry : As was
indicated in India - Additional Import Duties , "[o]rdinary customs duties … by their
nature … discriminate against imports of the products subject to the duty
[and] inherently disadvantage imports of the subject products vis-à-vis domestic
products", and "may be applied for a variety of reasons unrelated to domestic
production, including, as the United States observes, the raising of revenue".

 They may be ad valorem, specific or compound duties : According to the Appellate Body,
the form of the duty is not a determinin g factor. Like other Members, Guatemala
recognizes that an ordinary customs duty "may be ad valorem, specific or compound".
Moreover, as Guatemala appears to acknowledge, two duties forming part of "a single
entity or a coherent unit - as, for example, a compound tariff" may constitute
"ordinary customs duties".

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 They may vary but are subject to limits : If it is a "duty" (amount that is paid), it is a
positive value (more than zero), and its upper limit is fixed at the bound level. As the
Appellate Body indicated in Chile - Price Band System , "[a] levy is "variable" when it is
"liable to vary" … An "ordinary customs duty" could also fit this description. A Member
may, fully in accordance with Article II of the GATT 1994, exact a duty upon importation
and periodically change the rate at which it applies that duty (provided the changed
rates remain below the tariff rates bound in the Member's Schedule)."

 They are transparent and predictable : Without precisely defining the exact degree of
transparency they must exhibit, the A ppellate Body made it clear that an
"ordinary customs duty" must be transparent. Such transparency is necessary so that
the trading partners can understand the costs and to facilitate future multilateral trade
negotiations.

4.5. Peru does not claim that these characteristics constitute an exhaustive list of all the
characteristics of "ordinary customs duties". Ra ther, Peru considers that the aforementioned
characteristics are derived from the ordinary mean ing of the text of the Agreements, taking into
account their context, object and purpose, as we ll as the supplementary means of interpretation
and WTO jurisprudence.
4.1.3 Peru's specific duties have the same characteristics as "ordinary customs duties"
4.6. The specific duties that may result from the PBS are "ordinary customs duties" since they
meet each of the characteristics identified above. In particular, Peru emphasizes the following:
 They are MFN duties, forming part of the tariff regime : Decree Law No. 26140 expressly
provides that: "specific import duties, whether fixed or variable, on food products and
inputs […] are tariff duties". Therefore, the specific duties are non-discriminatory general
tariffs that are applied to all imports of the products covered, without distinction as to
country of origin. In line with what was indicated previously, and in accordance with
Article XXIV of the GATT 1994, they were negotiated under the formula of bilateral
preferences in the overall context of tariff reduction.

 They apply to imports, and the obligation to pay arises at the time of importation : in
accordance with Article 1 of Supreme Decr ee No. 124-2002-EF, the specific duty is
determined at the date of the import declaration.

 Designed, inter alia, to collect revenue and protect the domestic industry: Supreme
Decree No. 115-2001-EF states that "the price band system is a stabilization and
protection mechanism".

 A compound or "mixed" tariff is applied to the lines included in the PBS : The specific
duty that is calculated by me ans of the PBS is added to the ad valorem duty to obtain a
compound tariff. As Peru has explained, "there are two types of tariff: ad valorem and
specific tariffs. The mixed tariff is created on the basis of a combination of the two".

 They vary without ever exceeding the bound rate : Although the effective tariff may vary
every two weeks, under no circumstances may it exceed the rate bound by Peru in its
Schedule XXXV, as is expressly stipulated in Supreme Decree No. 153-2002-EF.
Guatemala has branded the tariff rebate that may result from the PBS as "symbolic",
"since it may not exceed the amount of the ordinary customs duties to be paid which, for
most products, is zero per cent."
15 Nevertheless, this is precisely one of the
characteristics of ordinary customs duties, as there would be nothing ordinary in a
"customs duty" resulting in a payment to the importer of the goods.

 They are transparent and predictable : the duties are published in print and on the web
pages of the MEF and SUNAT, and all information concerning the calculation is available
to the public.

15 Guatemala, First written submission, paras. 4.122-4.125.

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4.7. In other words, the design, purpose and method of application of the specific duties that may
result from the PBS show that they are "ordinary customs duties". They came into being as part of
the restructuring of Peru's tariff system in 1991; they are included in Peru's tariff offer in the
Uruguay Round; they form part of the tariff reduction under free trade agreements; and, by
design, the combination of specific duties and ad valorem duties may not exceed the bound level,
nor may it be negative.
4.8. The ceilings of the mixed/compound duties in force since 1991 were part of Peru's offer
during the Uruguay Round negotiations, as reflected in the bound rate of 68% for products subject
to such duties in column 4 of Peru's Schedule XXXV.
4.9. The schedules (App endix I to Schedule XXXV – Peru) wh ich accompanied the letter sent to
the Chairman of the Negotiating Group on Mark et Access on 14 December 1993, transmitting
Peru's final tariff offer, began with the statement "[t]he customs tariffs of Peru are bound at the
uniform rate of 30% ad valorem, with the exception of 20 products listed in point 4, below". Point
4 listed the products already subject to a specific duty as part of the tariff. The final schedule
submitted by Peru indicated "30%" under the column "Bound duty rate" for all products except
those mentioned in point 4, for which the corresponding tariff was bound at "68%". Column 8,
"Other duties and charges", remained blank. Pe ru assumed its commitments at the end of the
Uruguay Round with a good faith understanding that it was following the rules established by the
Chairman of the Negotiating Group. These rules, and the nature of the measure itself, demonstrate
that the Peruvian tariffs are "ordinary customs duties".
4.1.4 Peru's specific duties are nothing more than "ordinary customs duties"
4.10. Since the specific duties are "ordinary custom s duties", they are not, by definition, included
among "other duties or charges" nor are they su fficiently similar to the measures listed in the
footnote to Article 4.2 of the Agreement on Agriculture. These categories are mutually exclusive. If
the Panel decides that Peru's specific duties are "ordinary customs duties" on the basis of direct
analysis, it is not necessary to consider whether they are similar to the measures listed in the
footnote to Article 4.2 of the Agreement on Agriculture.
4.11. The specific duties are not variable import levies or minimum import prices.
The interpretation and significance of the terms "variable import levy" and "minimum import
price", as established by the Appellate Body and ot her uses in the multilateral system and in legal
writings, are related to the use of target prices or minimum prices.
16 As the Appellate Body
explained in Chile – Price Band System:
The main difference between minimum import prices and variable import levies is,
according to the Panel, that "variable import levies are generally based on the
difference between the governmentally determined threshold and the lowest world
market offer price for the product concerned, while minimum import price schemes
generally operate in relation to the actual transaction value of the imports."
17

4.12. This shows that the difference between variable levies and minimum prices is the operating
mechanism whereby it is sought to impose a target price.
4.13. In its zeal to demonstrate that the PBS is included among the prohibited measures,
Guatemala has put forward a distorted account of the way in which the PBS operates. In
Exhibit GTM-31, Guatemala mistakenly states that the reference price is equivalent to the price
before application of the specific duty.
18 In fact, however, the reference price is independent of the
transaction price, which is at the discretion of the trader. The PBS has no target prices or minimum
prices. Peru applies the same tariff regardless of the price that the importer chooses to declare,
the measure itself is neither fitted nor intended to arrive at a target price, and in practice the
goods may enter below the floor price.
19 For this reason, it cannot be said that the specific duties
that may result from the application of the PBS are variable levies or minimum import prices or an
instrument similar to those measures.

16 Peru, First written submission, paras. 5.54-5.60.
17 Appellate Body Report, Chile - Price Band System, para. 237.
18 Exhibit GTM-31.
19 Peru, First written submission, paras. 5.61-5.68.

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4.14. This can be seen clearly from the informat ion available to the public on the SUNAT website,
and from illustrative examples which involve real tr ansactions. For example, in the case of sugar,
during the first two weeks of August 2012 th e reference price published by the Peruvian
authorities was US$657/MT; as a result, no specific duties were established, as the floor price in
the applicable customs table was US$644/MT for that six-month period.
4.15. Against the background of the data provid ed in the previous paragraph, it was observed
that imports could enter Peru at prices below the price calculated by the PBS. The operating
procedure for the single customs declaration (DUA) No.354310 of 9 August 2012, for sugar from
Guatemala (Peurto Quetzal) imported through the maritime customs office of Callao (port of
Callao), involved the following information:
a. CIF amount: US$ 339,359.40
b. Net weight: 530,000.00 KG (530.0 MT)
c. Specific duty payment: US$ 0.00

4.16. The above data make it possible to calculate the CIF price per imported metric tonne,
which was US$640.3/MT. The CIF price for that import is lower than the above-mentioned floor
price of US644/MT
20 established in the customs table in effect for the six-month period concerned.
If Guatemala were correct, the Peruvian authorities ought to have collected a specific duty of at
least US$4/MT, in order to equalize the import "entry price" with the floor price for the six-month
period (US$644/MT). However, the Peruvian authorities maintained the specific duty of
US$0.00/MT in force for that two-week period. In other words, contrary to Guatemala's
contention, imports were admitted at a price below the minimum established by the PBS.
4.17. This is only one example among many whic h shows that the PBS and the system of specific
duties do not in any sense create a "minimum import price", and do not share the characteristics
of "variable import duties" which are directed to the achievement of some target price.
4.1.5 The specific duties are not sufficien tly similar to variable import levies or
minimum import prices
4.18. In order for measures to be "similar" for the purposes of the Agreement on Agriculture,
there must be "sufficient" similarity between two measures. In other words, not all similarity is
relevant, which is obvious since all border measures share certain similarities. As was explained by
the Appellate Body in Chile – Price Band System, "the task of determining whether something is
similar to something else must be approached on an empirical basis", and the Appellate Body
made it clear that an analysis of similarity for the purpose for Article 4.2 requires an assessment of
various characteristics of the different measures, plus an understanding of their operation and
effect in the market. It should be pointed out that it is wrong to focus on whether the Peruvian
measure is similar to the one considered in Chile – Price Band System , but at the same time it
must be stressed that, in that case, for the purposes of analysing the degree of "sufficiency" of
similarity, particular emphasis was placed on the transparency and predictability of the measure in
question, and on the effect of isolating the domestic market from the international market.
4.19. Isolation from the international market do es not occur in the case of Peru's PBS. The
specific duties that are applied do not depend on a domestic or regulated price, but are a function
of prices on the international market. When applied in conjunction with the corresponding ad
valorem d u t y , t h e y c a n i n n o c a s e r e s u l t i n a d u t y h i g h e r t h a n P e r u ' s c o n s o l i d a t e d t a r i f f .
Consequently, far from being isolated from the international market, domestic prices consistently
and progressively reflect its movements.
4.1.5.1 The specific duties are transparent and predictable
4.20. Another distinctive characteristic of the PBS which differentiates it from variable levies and
minimum import prices is its high degree of tran sparency and predictability. Importers, exporters
and other persons involved in international trade gain access to information on specific duties in
exactly the same way as they access information relating to the ad valorem component of

20 In Peru's first Written Submission, the value of the reference price had been considered as the value
of the floor price (paragraph 5.64). That error is corrected here. The error does not affect the argument or the
calculations referred to in the paragraph of the first submission.

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compound duties. On the SUNAT website, interested persons are able to ascertain the amounts of
the tariff duties applicable to the importation of a product by merely entering the number of the
tariff heading for the product. The duties applicable for subsequent periods depend on trends in
international reference prices; consequently, economic operators can reasonably predict the
amounts of specific duties, in accordance with price forecasts for the sector which are published in
publicly accessible media, or alternatively the interested parties may make their own estimates on
the basis of the observable data.
4.21. Although variation is possible, it is important for the Panel to take account of two points:
(1) the Appellate Body itself has said that variability in itself is not a decisive factor since each
Member "may … exact a duty upon importation and periodically change the rate at which it applies
that duty (provided the changed rates remain below the tariff rates bound in the Member's
Schedule)"; (2) it is important to distinguish what it is that varies in the Peruvian system. It is the
specific duties, not the calculation thereof, that constitute the measure at issue. Specific duties
and rebates are published in the customs tables, and what changes is the international reference
price which determines which of the values in the table is applicable. Each calculation is not a
change in the tariff; rather, for much of the period of application of the PBS, the specific duty has
remained at zero.
4.1.6 Article II:1(b) of the GATT 1994, second sentence, does not apply to "ordinary
customs duties"
4.22. Guatemala has submitted claims under the second sentence of Article II:1(b) of the
GATT 1994, which is not applicable to "ordinary customs duties". Accordingly, as it has been found
that Peru's specific measures are "ordinary customs duties", the only possible conclusion is that
they are not inconsistent with Article II:1(b), second sentence.
4.1.7 In any event, the duties applied by Pe ru do not exceed those imposed on the date
of the GATT 1994
4.23. The second sentence of Article II:1(b) only prohibits the application of duties or charges "in
excess of those imposed [in 1994]". The specific duti es calculated on the basis of fluctuations in
international market prices were introduced into Peruvian tariff policy in 1991, were in existence at
the time of the GATT and were notified to the GATT within the framework of the Uruguay Round
negotiations. If the Panel considers the specific duties to be "other duties or charges" within the
meaning of Article II:1(b), second sentence, the only question it should consider is whether Peru
has exceeded the levels obtaining on 15 April 1994. There is no inconsistency with Article 4.2 of
the Agreement on Agriculture.
4.1.8 Article 4.2 of the Agreement on Agri culture does not apply to "ordinary customs
duties"
4.24. Article 4.2 of the Agreement on Agriculture does not apply to "ordinary customs duties", but
to "measures of the kind which have been required to be converted into ordinary customs duties".
Therefore, as it has been found that Peru's specif ic duties are "ordinary customs duties", the only
possible conclusion is that they are not inco nsistent with Article 4.2 of the Agreement
on Agriculture.
4.1.9 In any event, the duties applied are not sufficiently similar to the measures listed
in the footnote
4.25. Even assuming that the Peruvian duties could be considered not to be "ordinary customs
duties", this does not mean that they are nece ssarily "measures of the kind which have been
required to be converted into ordinary customs duties", inconsistent with Article 4.2 of the
Agreement on Agriculture. In addition, it is necessary to determine whether the specific duties are
one of the measures to which the footnote refers or whether they are sufficiently similar thereto.
Unlike variable import levies or minimum prices or similar measures, the Peruvian duty does not
establish a minimum or floor price for imported products; on the contrary, the same duty is
applicable regardless of the price quoted by th e importer. Moreover, unlike such measures, the
specific Peruvian duties do not isolate the do mestic market and are transparent. For these
reasons, Guatemala's claim must be rejected.

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4.2 Peru has published the essential elements of the PBS, in accordance with Article X:1
of the GATT 1994
4.26. Peru has published the essential elements of the PBS, which is remarkable for its
transparency and accessibility. Indeed, Peru ha s published every one of the elements to which
Guatemala refers, but has no obligation whatsoever to publish the thinking behind the PBS
calculation or the components thereof. For these reasons, the Panel must reject Guatemala's
claims.
4.2.1 Legal standard of Article X:1 of the GATT 1994
4.27. The foregoing shows that Members agreed on a rapid publication requirement of limited
scope. As was emphasized by the Appellate Body in EC – Poultry , "Article X relates to the
publication and administration of "laws, regulations, judicial decisions and administrative rulings of
general application", rather than to the substantive content of such measures". Such being the
interpretation made in this context, it was concluded that paragraph 1 "reflects the 'due process'
concerns", by requiring of Members "publication that is prompt and that ensures those who need
to be aware of certain laws, regulations, judicial decisions and administrative rulings of general
application can become acquainted with them". Furthermore, the Panel in Thailand – Cigarettes
(Philippines) held that the "data used for determining the MRSPs are not an administrative ruling
of general application within the meaning of Article X".
4.2.2 Guatemala has not identified any "ess ential element" which should have been
published and which Peru failed to publish
4.28. Peru agrees with Guatemala that the PBS as a whole is subject to the publication obligation
established in Article X:1; however, Peru considers that it has fully complied with its publication
obligations under Article X:1 by publishing the existence of the PBS, its methodology and every
one of the components that form part of the process of calculation of that methodology. As was
explained earlier, the specific duties were estab lished in 1991, and since then Peru has published,
in its official journal "El Peruano", each of the amendments related to the duties, the elements and
calculation thereof, as well as the international reference prices and applicable customs tables.
21
4.29. The 3% for "import costs" is a component of the calculation of the specific duty which has
nothing to do with the substantive content of the PBS. Peru has published the fact that an
additional charge of 3% is included in the calc ulation of the PBS and has revealed how the charge
is processed as part of the general methodology of the PBS.
4.30. The amounts for "freight" and "insurance" serve to convert FOB prices into CIF prices.
Peru has published each of these amounts, indicati ng that their source is the "General Secretariat
of the Andean Community". 22 Freight and insurance are not subject to changes.
However, governments and traders do not need to know how these components are calculated
individually in order to have a "more or less complete" understanding of the PBS.
4.31. Peru has already published details of the reference markets for each product. Peru
calculates the reference prices and the customs tables on the basis of price quotations in the
reference markets during the previous 15 days or 60 months, respectively. Any importer may have
direct access to the sources in the reference market s, if it so wishes. However, Peru publishes the
reference prices and customs tables, and the applicable specific duty can only be calculated with
these data.
4.32. Guatemala identifies four instances in which it alleges that "the Peruvian authorities have no
legal basis in their national regulations". In each case, Guatemala commits two errors: (i) it
suggests that Peru's actions have no basis in law and (ii) it omits to mention that, in each case,
Peru has published sufficient facts to enable governments and traders to have "more or less
complete" information.

21 See Exhibits GTM-4, GTM-5.
22 See Supreme Decree No. 115-2001-EF, Exhibit GTM-4, Annex V.

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4.3 Peru has administered the PBS in a uni form, impartial and reasonable manner, in
accordance with Article X:3 of the GATT 1994
4.33. The Appellate Body has explained that Article X:3(a) of the GATT establishes certain
minimum standards for transparency and procedural fairness in relation to the administration of
the laws, regulations and other measures referred to in Article X:1. In order to establish a violation
under Article X:3(a), the complaining party must demonstrate by means of "solid evidence" that
the measure comes within the scope of the measures referred to in Article X:1, and that it is
"administered" in a non-uniform, partial and/or unreasonable manner.
4.34. Peru rejects Guatemala's allegation that the PBS is administered in a non-uniform and
partial manner with regard to the way in which decimal figures are "rounded". Peru recalls that the
"uniformity" requirement means that operators, under similar conditions, must be treated equally,
and this is precisely the situation with respect to rounding. For the calculation of specific duties or
tariff reductions, Peru uses floor and ceiling pric es with all the decimal figures derived from the
particular way in which they are calculated, together with rounded reference prices as published by
the authorities. When calculating the mathematical difference between an unrounded value, i.e. a
value with decimal places, and an integer value, the result will always be an unrounded figure,
i.e. one with decimal places. In this particular case, the specific duties or tariff reductions derived
from the difference between the reference price an d the floor or ceiling price, respectively, are
rounded in the normal, accepted way. The Peruvian system does not require any commercial
operator to effect any calculation. Peru publishes the exact amount of the duty or rebate in printed
form and on various web pages.
4.35. The criterion of reasonableness requires a measure not to be "irrational or absurd", and that
it should be "proportionate". In any event, Peru's practice is reasonable, as was explained earlier;
there are no anomalies in the administration of the regulations.
4.4 The PBS does not breach any rule of the Customs Valuation Agreement
4.36. Guatemala errs in alleging in the alternative that Peru violated all the substantive provisions
of the Customs Valuation Agreement. That agreement is applicable only to situations where duties
are imposed on the basis of a value; it is not applicable to situations where specific duties are
levied on the basis of quantity, item or weight.
5 CONCLUSION
5.1. For all of the foregoing reasons, the Repub lic of Peru respectfully requests that the Panel
reject Guatemala's claims in their entirety.

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ANNEX B-4
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF PERU
1 INTRODUCTION
1.1. This case is unique. Never before has the DSB had before it a case in which a complaining
Member approves, as a matter of national urgency, a bilateral free trade agreement in which the
respondent party is permitted to maintain a measure, on the very day that it challenges the same
measure before the DSB. Particular facts of this nature have implications for the multilateral
trading system, since the determinations in this case will extend beyond the parties to the dispute.
The decision adopted by this Panel will be determinative for preventing the institutionalization
of the abuse of rights that would exist if any Member, like Guatemala in this case, were to turn to
the DSB whenever it is dissatisfied with the results achieved through bilateral negotiations
conducted in accordance with the requirements of the multilateral system itself.
1.2. The bringing of this case is motivated simply by failure at the bilateral negotiating table.
After the signing of the FTA, which provides that "Peru may maintain its Price Band System",
the changes in international sugar prices resulted in the CIF reference price for sugar falling below
the floor price of the price band. It was this market trend, and not any change in tariff policy as
such or in the manner in which specific duties are calculated, which led to the imposition
of a specific duty on consignments of sugar to Peru, including consignments from Guatemala.
Bowing to pressure from its sugar sector, Guatemala initiated this procedure with the aim
of "dismantling" the same PBS that it had expressly and unreservedly accepted in
the Peru-Guatemala FTA. This underlying motive is clear not only from the fact that the sugar
sector's dissatisfaction with the Peru-Guatemala FTA negotiation is public knowledge, but also from
the distortion of the relevant facts by Guatemala and the weakness of its legal arguments.
1.3. In any event, Guatemala's claims must be re jected in their entirety because: (i) Guatemala
initiated these proceedings in a manner contrary to good faith, which is a binding and enforceable
requirement of the DSU, (ii) the measure at is sue is an ordinary customs duty bound in the
Uruguay Round, and (iii) in any case, the measure is not similar to the measures specified in the
footnote to Article 4.2 of the Agreement on Agriculture.
1.4. Guatemala has not initiated these proceedings in good faith, as required by Articles 3.7
and 3.10 of the DSU, and in this connection the following points need to be taken into account:
 In seeking to dismantle the PB S after having explicitly agreed and accepted in the FTA
that "Peru may maintain its [PBS] " and that the FTA "shall prevail to the extent
of any inconsistency [with the WTO Agreement] ", Guatemala clearly demonstrates its
lack of good faith.
 The Panel is obliged by its terms of reference to reject claims not made in good faith and
thus to maintain the integrity of the DSB.
 Articles 3.7 and 3.10 of the DSU and Article 18 of the Vienna Convention on the
Law of Treaties make it clear that it is not necessary for the FTA to have entered into
force since Guatemala has signed and ratified the FTA, which expressly provides that
Peru may maintain the PBS.
 Nor does good faith require that Guatemala should have expressly undertaken not to
engage in a procedure related to the PBS. This is an element of estoppel and not of good
faith.
1.5. The specific duties resulting from the admini stration of the PBS are ordinary customs duties
that have been in existence since 1991 and are fully consistent with Peru's international trade
commitments. Consequently, they are not in breach of Article II of the GATT 1994 or Article 4.2
of the Agreement on Agriculture:

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 The specific duties are ordinary customs duties because they have all of the
characteristics peculiar to such duties. As such, they were bound by Peru during the
Uruguay Round.
 The specific duties have existed since 1991, beginning with Supreme Decree
No. 016-91-AG.
 They are customs tariffs under Peruvian legislation, having been introduced in 1991 by
Decree Law No. 26140.
 Given that Peru correctly recorded these duties in its schedule of commitments as
ordinary customs duties within the mean ing of Article II of the GATT 1994, the
provisions of the Agreement on Agricult ure invoked by Guatemala are not even
applicable under the terms of the Agreement.
1.6. Notwithstanding the foregoing, if Article 4.2 of the Agreement on Agriculture is deemed to be
applicable, the specific duties are not similar to the measures listed in the footnote to that article.
Nor have the specific duties been applied in excess of the "other duties or charges" applied in 1994
in accordance with Article II(b) of the GATT 1994:
 Even on the contested assumption that the sp ecific duties that may result from Peru's
PBS are not ordinary customs duties, it is wrong to assume that there is any violation
of Article 4.2 of the Agreement on Agriculture.
 The specific duties that may result from the PBS are not minimum import prices or
variable import levies, nor measures sufficiently similar thereto.
 The specific duties resulting from the PB S are predictable and transparent, do not
constitute a minimum or target price and do not isolate the local market from the
international market.
 Although the duties vary, they do so in a reasonable and non-automatic manner.
Moreover, variability is not a characteristic sufficient to establish the specific duties as
one of the measures listed in the footnote to Article 4.2 of the Agreement on Agriculture.
 Furthermore, and even if it were determined that the specific duties are not ordinary
customs duties, the specific duties are not in excess of the "other duties or charges"
imposed on the date of the GATT 1994, in accordance with Article II(b).
1.7. The specific duties are applied reasonably, they have a legal basis and all their essential
elements are published in accordance with Articles X:1 and X:3(a) of the GATT 1994:
 Far from identifying essential elements that have not been published, Guatemala has
referred to justifications concerning specific aspects of the calculation which it would
have preferred to be made aware of, but wh ich Peru has no obligation whatsoever to
provide.
 Likewise, far from identifying any lack of reasonableness in the administration of the
measure, Guatemala has referred to alleged anomalies which are in fact totally
reasonable measures that fall within Peru's discretionary powers.
1.8. Consequently, and as is explained in more de tail below, all of Guatemala's claims must be
rejected since, in the first place, Guatemala has not complied with the DSU's requirement of good
faith, which carries the procedural implication that its claims are inadmissible; and secondly
because the specific duties at issue, as well as the PBS used to calculate them, are fully compatible
with Peru's WTO obligations.

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2 THE PERU-GUATEMALA FTA IS RELEVANT FOR THE CORRECT DETERMINATION
OF THE DISPUTE
2.1. Guatemala continues arguing, erroneously, that the Peru-Guatemala FTA is irrelevant.
Guatemala's position is untenable. The Peru-G uatemala FTA is an agreement between two
sovereign States, which was negotiated under Article XXIV of the GATT 1994, that is, in the
framework of the World Trade Organization; moreover, it is the result of months of negotiation,
specifically including negotiation on the measure at issue in this dispute; and it expressly
recognizes that the specific duties resulting from the application of the PBS are in the nature
of tariffs. Furthermore, the FTA explicitly indi cates Guatemala's commitment with regard to Peru
being allowed to maintain the PBS, and it also provides that the FTA shall prevail to the extent of
any inconsistency between it and the WTO Agreements . It is therefore illogical to claim that the
agreement is not relevant for the proper determination of this dispute. Guatemala itself asserts,
in response to question No. 91, that it "does not consider that the Panel is precluded from
assessing the content of the FTA as a factual matter and from issuing factual findings in that
respect".
1
2.2. The Peru-Guatemala FTA has factual, procedural and substantive implications. The factual
circumstances of its negotiation, and the acceptance of the PBS by Guatemala, show that the latter
considered and recognized the specific duties resulting from application of the PBS as being
essentially tariff-based. Inasmuch as Guatemala has agreed and explicitly accepted in the FTA that
Peru may maintain its PBS, and is now seeking to override and dismantle that provision, its actions
are procedurally inconsistent with the requirement of engaging in a DSU procedure in good faith,
for which reason its claims must be rejected in limine given the absence of that admissibility
requirement.
2.3. In substantive terms, Peru does not believe that there is any inconsistency whatsoever
between the WTO Agreements and the specific duties that may result from the PBS. However,
on the assumption that Guatemala is correct, which Peru denies, this would signify an
inconsistency between the provisions of the FTA and those of the WTO Agreements in relation to
the measure at issue, insofar as both parties agreed in the FTA that the latter would prevail.
Accordingly, in the event of a finding of inconsistency and a recommendation that the PBS be
eliminated, Peru and Guatemala would have modified their mutual WTO rights and obligations by
establishing in the FTA that the PBS can be maintained.
2.1 The Panel's terms of reference requ ire consideration to be given to the
Peru-Guatemala FTA
2.4. Article 11 of the DSU provides that "a panel should make an objective assessment of the
matter before it, including an objective assessment of the facts of the case". Contrary to what is
claimed by Guatemala
2, Peru is not proposing that the Panel "analyse whether Guatemala has
breached the provisions of the Free Trade Agreem ent or whether an inconsistency exists between
that Agreement and the WTO Agreements". Peru's position is that the Panel must analyse the case
in the light of the covered agreements listed in the DSU and the DSU itself, in order to determine
whether there is any inconsistency between the duties that may result from the PBS and the
WTO Agreements. In this context, Peru considers th at the negotiation, adoption and signing of the
Peru-Guatemala FTA, and in the case of Guatemala, the expression of consent, are objective facts
which have legal implications for this analysis. Even now, Guatemala agrees that the Panel may
assess the content of the FTA as a factual matter.
3 We do not ask and we do not consider it
necessary that the Panel determine whether Guatemala has failed to comply with the
Peru-Guatemala FTA.
2.5. In this regard, it is irrelevant whether the Peru-Guatemala FTA is an agreement covered by
Appendix 1 of the DSU, as Guatemala argues. 4 Peru is not asking that the Panel rule on a dispute
outside the scope of the WTO, but that it determ ine that the present case has not been properly
instituted.

1 Guatemala's response to Panel question No. 91, para. 15.
2 Guatemala's response to Panel question No. 21, para. 34.
3 Guatemala's response to Panel question No. 91, para. 15.
4 Guatemala's response to Panel question No. 21, para. 34.

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2.6. Peru considers that Articles 3.7 and 3.10 of the DSU in themselves establish a good faith
requirement for initiating proceedings. The objective facts of what was agreed by Guatemala in the
FTA with Peru are relevant for demonstrating its la ck of good faith which, as has been indicated,
is a requirement for initiating proceedings in the DSU framework. Guatemala's argument 5 that the
Peru-Guatemala FTA has not been accepted by all Members is therefore irrelevant. What is at issue
in this case is how the parties have behaved between themselves.
2.2 Guatemala is mistaken in denying the objective facts
2.7. The text of paragraph 9 of Annex 2.3 of the Peru-Guatemala FTA is clear: " Peru may
maintain its [PBS] ", with no qualifications, conditions or reservations. Guatemala, on the other
hand, seeks to identify non-existent reservations through confused and erroneous arguments.67
2.8. In fact, Guatemala vainly seeks a tacit reservation in Article 1.3.1 and ignores Article 1.3.2
which stipulates that "[i]n the event of any inconsistency between this Treaty and
[the WTO Agreement], this Treaty shall prevail to the extent of the inconsistency". Peru and
Guatemala confirmed their WTO rights and obliga tions, and recognized that there could be
inconsistencies and that, if there were, the Peru-Guatemala FTA would prevail.
2.9. However, Guatemala seeks to use Article 1.3.1 in order to identify an alleged reservation
implicit in paragraph 9 of Annex 2.3 which would invalidate the content of what was negotiated
and agreed by the two countries. Given that, in fact, the WTO Agreements do not prohibit Peru
from maintaining the PBS, as Peru has demons trated, such an alleged reservation would be
of no added value. On the other hand, if the WTO Agreements prohibited the PBS, according to
the argument made by Guatemala, Peru could not maintain the PBS, making paragraph 9
of Annex 2.3 meaningless.
2.10. It must also be borne in mind that the Peru -Guatemala FTA is a bilateral treaty which, by its
very nature, cannot be subject to reservations. However, in addition to the above and at the
request of Guatemala itself, Article 19.4 was included in the FTA, which reads: "This Treaty shall
not be subject to reservations or unilateral interpretative declarations".
2.11. Guatemala is wrong in alleging in this case that "the FTA contains no provisions indicating
that Guatemala recognized the Price Band System as consistent with WTO rules".
8 Guatemala did
recognize the consistency of the PBS with WTO ru les. While it is true that the text of the
Peru-Guatemala FTA does not refer expressly to the WTO consistency of the PBS, it is also true
that it is not necessary for it to do so on account of the aforementioned provisions of Article 19.4
of the FTA, and because such recognition wo uld be highly unorthodox. For example, the
Peru-Guatemala FTA also contains no express recognition that ad valorem duties are
WTO-consistent.
2.12. Guatemala's actions and its signing of the FTA do imply a tacit recognition of the
WTO consistency of the PBS. Not only did Guatemala agree that "Peru may maintain" the PBS, but
its actions demonstrate an implicit acknowledgement that the specific duties that might result from
the PBS were ordinary customs duties when considered as a common and current tariff.
9
2.13. Guatemala was under an obligation to understand what it signed, and the evidence shows
that Guatemala did consider the implications of the PBS for its sugar sector, seeking a tariff quota
that would enable it to export a limited quanti ty of sugar "duty free, including the Price Band

5 Guatemala's response to Panel question No. 21, para. 35.
6 Guatemala's response to Panel question No. 25, para. 49.
8 Guatemala's first executive summary, para. 4.6; Guatemala's opening statement at the first meeting
of the Panel, para. 83.
9 In this connection, it should be emphasized that the Parties considered the PBS in the context
of Annex 2.3 ("Tariff Elimination Programme"): according to Article 2.3.2 of the "Tariff Elimination" section,
"unless otherwise provided in this Treaty, each Party shall eliminate its customs tariffs on goods originating
from the other party, in accordance with Annex 2.3". The PBS was negotiated in the context of the General
Negotiating Framework which provided that "the entire tariff universe shall be subject to negotiation"
[Guatemala's first executive summary, para. 4.6; Guatemala's opening statement at the first meeting of the
Panel, para. 83]. Guatemala's proposal of 3 May 2011 referred to a limited tariff quota "duty free, including
price band" [Guatemala's proposal on sugar, dated 3 May 2011, Exhibit PER-66].

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System".10 Moreover, Guatemala's actions are made more contradictory by the fact that it has
continued with its internal procedures to bring th e FTA into force, including the decree issued as
a matter of national urgency by the Guatemalan Congress, which approved ratification of the
treaty.
2.14. Guatemala could not expect the PBS to disappear. Guatemala has argued that the Peruvian
authorities stated during the negotiation of the Peru-Guatemala FTA and in the context of bilateral
consultations that the PBS would possibly be eliminated.
11 Although Peru has already denied
Guatemala's assertion 12, it is important to emphasize that Guatemala admits that it has no
evidence at all to substantiate its allegation.13
2.3 Guatemala cannot institute proceedings contrary to good faith
2.15. Good faith is a principle of cardinal importance in relations between sovereign States. It is
a governing principle of public international law, including in the WTO multilateral framework.
Contrary to what is argued by Guatemala, (i) good faith is a requirement enshrined in Articles 3.7
and 3.10 of the DSU, (ii) no express waiver is requir ed to act contrary to good faith, and (iii) it is
irrelevant that the Peru–Guatemala FTA has not entered into force.
2.16. Articles 3.7 and 3.10 of the DSU establish a binding and enforceable obligation. Guatemala
does not deny, because it cannot deny, that Articles 3.7 and 3.10 of the DSU require proceedings
to be instituted in good faith. Nevertheless, Guatemala argues incorrectly that this requirement is
one of "self-regulation"14, which is inconsistent with the text of the DSU, the case law and common
sense.
2.17. The lack of good faith has consequences in the WTO context. It is clear from the peremptory
language used by the Appellate Body and panels that the good faith requirement is binding and
enforceable.15
2.18. The Panel cannot accept the good faith requirement as being one of self-regulation, since
this would mean that, if there is found to be a lack of good faith, the Panel cannot do anything
about it. The Panel is under an obligation to preven t claims from proceeding that do not meet the
requirement of being lodged in good faith. Fortunately for the integrity of the dispute settlement
system, Guatemala's argument is baseless.
2.19. The only support found by Guatemala are ci tations taken out of context with regard to
Article 3.7 of the DSU, none of which limits the po wer of the Panel in regard to Peru's objections.
This is made clear by the Mexico – Corn Syrup case, where the Appellate Body indicated that,
pursuant to Article 3.7 of the DSU, "Members should have recourse to WTO dispute settlement in
good faith".16 In that case, the responding party had no t "explicitly" formulated its objections, for
which reason the Appellate Body indicated that "the Panel was not obliged to consider this issue on
its own motion".17 Since in the present case Peru has in fact explicitly formulated objections to the
admissibility of Guatemala's claims, the Panel is obliged to examine them.
2.20. Articles 3.7 and 3.10 of the DSU do not requ ire an explicit waiver. According to Guatemala
"Peru is invoking the estoppel principle in support of its request". 18 This is incorrect. Although the
principle of estoppel is also related to the principle of good faith in international law,
Peru considers that, in the WTO framework, it is only necessary to refer to the obligations
contained in Articles 3.7 and 3.10 of the DSU.

10 Guatemala's proposal on sugar, dated 3 May 2011, Exhibit PER-66.
11 Guatemala's response to Panel question No. 33, paras. 71-75.
12 Peru's response to Panel question No. 34, paras. 77-78.
13 Guatemala's response to Panel question No. 33, para. 72.
14 Guatemala's oral statement at the first meeting; see also Guatemala's response to Panel question
No. 96.
15 Appellate Body Report, EC – Export Subsidies on Sugar, para. 312: Appellate Body Report,
US - FSC, para. 166: Appellate Body Report, Canada – Continued Suspension, para. 313; Panel Report,
US - Corrosion-Resistant Steel Sunset Review, para. 89; Panel Report, US – Upland Cotton, para. 7.67.
16 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 73.
17 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 74.
18 Guatemala's first executive summary, paras. 4.2-4.4.

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2.21. Guatemala has argued that "the applicable le gal standard for a finding of lack of good faith
under Article 3.10 of the DSU consists in examining whether the complaining party has clearly
stated that it would not take legal action with respect to a certain measure".
19 Therefore,
Guatemala concludes that the FTA is irrelevant since "there is no clear statement in the Free Trade
Agreement that Guatemala would not take legal action with respect to the measure at issue".20
2.22. Contrary to what is claimed by Guatemala 21, no such limit to the scope of Article 3.10 of the
DSU is revealed by the EC – Bananas III case. Guatemala omits to mention that, in that case, the
Appellate Body ruled specifically on an estopp el argument made by the European Communities,
which indicated that the Understanding on Banana s contained an express waiver of the right to
initiate Article 21.5 proceedings. 22 Although the requirement of an express waiver is part of the
legal standard applicable to the estoppel principle, nothing in the EC – Bananas III case suggests
that the normative content of Article 3.10 of th e DSU is identical to the requirements of the
estoppel principle, a principle whose applicat ion in the WTO context has been marked by
controversy. In fact, there could be various ways of engaging in a procedure in bad faith 23; what
matters is that they are all prohibited.
2.23. It is irrelevant that the Peru-Guatemala FTA has not entered into force. According to
Guatemala, "the fact that the Free Trade Agreem ent has not entered into force strengthens even
further the argument that this Agreement cannot be used, for instance, to interpret the Marrakesh
Agreement".24
2.24. As a matter of fact, a Member may act in bad faith by engaging in a procedure under the
DSU without having to have signed a treaty. This is obvious, since good faith is a condition of
inter-State relations, with or without the entry in to force of a treaty. As has been explained by
Peru25, although the Peru-Guatemala FTA has not entered into force, this does not detract from
the fact that Guatemala is obliged not to act contrary to its object and purpose. As long as the
Peru-Guatemala FTA has been adopted and ratified by both States and as long as there has been
no expression by either of them of the wish not to be party to the FTA, Article 18 of the
Vienna Convention remains applicable as an expression of the principle of good faith.
2.4 Guatemala and Peru are a lleged to have modified their mutual WTO rights and
obligations
2.25. Peru and Guatemala agreed as follows in Article 1.3.2 of the Peru-Guatemala FTA:
"[i]n the event of any inconsistency between this Treaty and [the WTO Agreement], this Treaty
shall prevail to the extent of the inconsistency, unless otherwise provided in this Treaty".
2.26. Peru does not consider that there is any inconsistency between the Peru-Guatemala FTA and
any provision of the WTO Agreements. Contrary to what is claimed by Guatemala, (i) the
Peru-Guatemala FTA can in fact be a vehicle for Peru and Guatemala to modify their mutual rights
and obligations, and (ii) such modification could take place if it were determined that the PBS
is not permitted by the WTO Agreements, as Guatemala argues.
2.27. Free trade agreements may be vehicles for the modification of substantive rights and
obligations between the parties thereto. As regards the Peru-Guatemala FTA, Guatemala maintains
that the covered agreements can only be modified through the procedures established in Article X
of the Marrakesh Agreement.
26 This is not the case. Having recognized the desirability of
enhancing freedom of trade through free trade agreements 27, Members agreed, under Article XXIV
of the GATT 1994, to permit free trade areas, on the condition, inter alia, that the customs duties

19 Guatemala's response to Panel question No. 29, para. 66.
20 Guatemala's response to Panel question No. 21, paras. 36-39.
21 Guatemala's response to Panel question No. 29, para. 66.
22 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III
(Article 21.5 - US), para. 228.
23 For example, it is conceivable that a Member would act in bad faith if it instituted proceedings with
the intention of causing injury to another Member or affecting its rights.
24 Guatemala's response to Panel question No. 22, para. 41.
25 Peru's response to Panel question No. 22, paras. 34-35.
26 Guatemala's response to Panel question No. 21, para. 35: see also Guatemala's first executive
summary, para. 4.7.
27 See the GATT 1994, Article XXIV, para. 4.

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should not be higher than those applicable, prior to the date of the agreement, to the contracting
parties not parties to that agreement.28
2.28. Furthermore, Article XXIV of the GATT 1994 refers explicitly to certain rights and obligations
in the multilateral context that would not be affected by an agreement under the Article
in question.29
2.29. By clarifying that there are certain rights and obligations that will not be affected by the
terms of an agreement under Article XXIV, the same text makes clear what is obvious to Peru:
a bilateral agreement under Article XXIV can affect the way in which WTO rights and obligations
apply among Members that have taken the decision to enter into a special relationship. This is fully
consistent with Article 41 of the Vienna Convention, which recognizes that two parties to
a multilateral treaty may modify the treaty only between themselves.
2.30. Moreover, in EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III
(Article 21.5 - EU), the Appellate Body acknowledged that the parties may modify rights and
obligations under the WTO Agreements by means of express or tacit waivers, either explicitly or by
necessary implication. Although in that case consideration was given to the waiver of a procedural
right contained in the DSU, there are no grounds for maintaining that Members may not waive
substantive rights.
2.31. Guatemala considers that the PBS is inconsistent with the WTO Agreements, and wants to
have it dismantled. If Guatemala's position is accepted, there would be an inconsistency between
the Peru–Guatemala FTC and the WTO Agreements, since the former allows Peru to maintain the
PBS, while the latter prohibit the PBS. In the face of such inconsistency, the Peru-Guatemala FTA
takes precedence, in accordance with the terms agr eed by the parties in Article 1.3.2 thereof, and
this results in the modification of any of the provisions of the WTO Agreements which would have
prohibited the PBS, according to Guatemala's argument, either through Article II:1(b) of the
GATT 1994 or Article 4.2 of the Agreement on Agriculture.
2.32. The Panel in Indonesia – Autos explained that "[t]echnically speaking, there is a conflict
when two (or more) treaty instruments contain obligations which cannot be complied with
simultaneously".
30 That is precisely the situation that would obtain if it were considered that the
WTO Agreements prohibit the PBS, since it would no t be possible for Peru to "maintain" the PBS in
accordance with the terms of paragraph 9 of Annex 2.3 of the FTA.
2.33. The way in which the Panel decides this case could have implications for all of Peru's trade
agreements, as well as for hundreds of ot her agreements between other WTO Members.
Multilateral and bilateral agreements play a complementary role in achieving the same objective
of opening up and liberalizing international trade. This obviously means that, in the case
of a bilateral agreement, the parties will negotiate terms that may modify their mutual rights and
obligations with respect to rights and obligations in the international framework. This is normal for
an agreement under Article XXIV of the GATT 1994, as it would make no sense for the terms to be
identical, even though consistent.
2.34. The novelty in this case is that the partie s agreed that the terms of the bilateral agreement
would prevail over any inconsistency with the multilateral agreement. The parties were not bound
to include that provision, but they clearly did so. In the circumstances, to allow one party that is
not satisfied with what it achieved through bilateral negotiations to have recourse to the WTO in
order to request something that runs counter to what was agreed bilaterally, undermines both the
WTO system and the basic principles of internat ional law, since it constitutes an open abuse
of right which cannot be permitted.

28 See the GATT 1994, Article XXIV, para. 5(b).
29 Ibid. para. 9.
30 Panel Report, Indonesia – Autos, footnote 649.

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3 THE SPECIFIC DUTIES ARE CONSISTENT WITH ARTICLE II:1(B) OF THE GATT 1994
AND ARE NOT PROHIBITED BY ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE
3.1. The specific duties are ordinary customs du ties within the meaning of the first sentence
of Article II:1(b) of the GATT 1994. Consequently, they are not in breach of Article II:1(b) of
the GATT 1994, nor are they prohibited by Article 4.2 of the Agreement on Agriculture. The main
facts of relevance to this determination that should be found by the Panel are the following:
 The specific duties are ordinary customs duties.
 The specific duties have existed since 1991.
 The specific duties formed part of Peru's commitments during the Uruguay Round.
 The specific duties are tariffs under the Peruvian regulations.
3.2. Even if it were determined that the specific duties are not ordinary customs duties, which Peru
denies, they are not in breach of Article II:1(b) , second sentence, of the GATT 1994, nor are they
measures prohibited by Article 4.2 of the Agreement on Agriculture.
3.3. Peru considers that the order of analysis su ggested by Guatemala is incorrect. It is a matter
of general agreement that, if Peru has properly bound the measure in accordance with the first
sentence of Article II:1(b), Article 4.2 of the Agr eement on Agriculture is not applicable. For this
reason, Peru considers that the natural order of analysis is that the Panel should begin with
an analysis of whether or not the specific duties are ordinary customs duties within the meaning
of the first sentence of Article II:1(b). Peru has demonstrated that the specific duties existed at
the time when it bound its commitments under Article II, and that it duly recorded those duties as
ordinary customs duties.
3.1 The specific duties are ordinary custom s duties within the meaning of the first
sentence of Article II of the GATT 1994
3.4. Peru has demonstrated that the specific duti es are ordinary customs duties as they have the
characteristics peculiar to the latter. Peru never a sserted that these characteristics, individually,
were exclusive characteristics of ordinary customs duties. However, it is significant that a customs
duty should have all these characteristics and that the Member concerned recorded them as
ordinary customs duties at the time of assuming obligations in the context of the Uruguay Round.
The question that the Panel should ask itself is: why is this measure not an ordinary customs duty,
despite possessing all these characteristics and despite the form in which it was bound by Peru
during the Uruguay Round?
3.5. As Peru has demonstrated, and as Guatemala itself admits
31, the measures in question are
specific duties applicable to imports of certain agricultural products. These duties date from 1991,
having been introduced by Supreme Decree No. 016-91-AG.
32 Apart from differences in
terminology that are irrelevant to the design, architecture and scope of the measure, the only
characteristics indicated by Guatemala as ha ving been introduced by Supreme Decree
No. 115-2001-EF are the change from FOB prices to CIF prices and the introduction of the ceiling
price. In fact, Supreme Decree No. 115-2001-EF made no significant changes such as to alter the
essential features of the measure. Although the PB S, as such, dates from 2001, it is no more than
a refinement of the pre-existing system, as is clear from Supreme Decree No. 115-2001-EF
itself.
33

31 Guatemala's response to Panel question No. 41, para. 86.
32 Supreme Decree No. 016-91-AG, Exhibit PER-22.
33 Supreme Decree No. 115-2001-EF, Exhibit GTM-4, preambular part ("following review and evaluation
of the above-mentioned [1991] system, it was deemed necessary to refine it and bring it into line with the
needs of national agriculture, so as to enable domestic producers to plan their investments under conditions
of reduced uncertainty").

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3.6. Guatemala considers that the specific duti es could not form part of Peru's commitments. 34
It is clear that the ( ad valorem and specific) duties applicable to agricultural products were bound
by Peru in the Uruguay Round, since a higher tariff ceiling was established solely for these
products, as was notified by Peru to the Chai rman of the Negotiating Group on Market Access.
35
In fact, Peru's final Schedule XXXV establishes the maximum rate of 30% for the entire
tariff universe, with the sole exception of products subject to specific duties, which were bound as
ordinary customs duties with a tariff ceiling of 68%.
36 This was accepted by Peru's main trading
partners.37
3.7. As Peru has demonstrated, both the specific duties and the ad valorem duties are ordinary
customs duties in accordance with the Peruvian regulations. 38 Moreover, the fact that both types
of duty are tariff measures was made explicitly clear by Decree Law No. 26140 39, which is
consistent with the fact that, prior to the Uruguay Round, Peru had already prohibited and
eliminated all non-tariff measures. 40 Guatemala failed to meet the very high burden of proof
needed to establish that a sovereign State is interpreting its own legislation incorrectly. In its first
written submission, Guatemala identifies 10 allegedly relevant factors in order to affirm that the
specific duty is different from an ordinary customs duty. 41 Guatemala is mistaken about all
of these 10 factors.42
3.2 Even if the Panel were to determine that the specific duties are not ordinary customs
duties, they would not be in breach of Article II of the GATT 1994
3.8. Even on the contested assumption that the specific duties that may result from Peru's PBS are
not ordinary customs duties, it is not correct to assume that there is an automatic breach of the
second sentence of Article II:1(b) of the GATT 1994. In this connection, Guatemala identifies three
requirements for finding that a duty is consistent with the second sentence of Article II:1(b):
"(a) the duty or charge, or the mandatory legislation under which it is to be applied, must have
existed at 15 April 1994; (b) it may not exceed the level of the duty or charge applied on
15 April 1994; and (c) it must have been recorded in the Schedule of Concessions of the importing
Member".
43 Guatemala was unable to demonstrate that even one of these requirements has not
been met in the instant case.
3.3 Even if the Panel were to determine that the specific duties are not ordinary customs
duties, they would not be the same as or suffi ciently similar to the measures referred to
in the footnote to Article 4.2 of the Agreement on Agriculture
3.9. The measure at issue does not constitute a minimum import price or variable import levy,
or a measure similar to either of these:
 Minimum import prices and variable import levies, or measures similar thereto, are
characterized by determining the charge on the base of a minimum import price,
or target price, thereby preventing products from entering the domestic market of
a Member at a lower price.44

34 Guatemala's first executive summary, para. 3.25; Guatemala's opening statement at the first meeting
of the Panel, para. 63.
35 Communication from Peru to the Chairman of the Negotiating Group on Market Access, dated
14 December 1993, Exhibit PER-15.
36 Schedule XXXV - Peru, Uruguay Round, 15 April 1994, Exhibit PER-18.
37 Peru - Establishment of a New Schedule XXXV, L/7471, 7 June 1994, Exhibit PER-17.
38 Ministry of the Economy and Finance, Definiciones, Exhibit PER-6.
39 Decree Law No. 26140, Exhibit PER-53, Article 1.
40 See Supreme Decree No. 60-91-EF, Exhibit PER-10; Legislative Decree No. 668, Exhibit PER-11;
Decree Law No. 25988, Exhibit PER-12.
41 Guatemala's first written submission, para. 4.125.
42 See Peru's second written submission, para. 3.32.
43 Guatemala's first executive summary, para. 3.24.
44 Peru's first written submission, para. 5.59.

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 As Peru has demonstrated, the specific duties that may result from the PBS do not share
this characteristic: the measure is neither fitted nor intended to arrive at a target price,
a concept that does not even exist in the PBS.45
 In the PBS, the reference price is independent of actual transaction prices, and any
convergence is purely coincidental.
 In practice, Peru has shown actual cases where products enter at transaction prices
lower than the floor price and the reference price. 46 This is precisely the demonstration
that Chile was unable to make in Chile – Price Band System.47
3.10. The measure at issue does not constitute a variable import levy or similar measure.
Guatemala identified three criteria that a measure must meet in order to be a variable import levy:
"variability", "lack of transparency and lack of predictability" and "distortion of import prices". 48
Guatemala focused its arguments on variability, assuming that this element is sufficient for the
measure to be considered similar to those listed in the footnote to Article 4.2. In fact, variability is
not per se a characteristic sufficient for a measure to be prohibited and, in any case, none of the
aforementioned criteria is manifest in the specific duties.
3.11. The specific duties do not exhibit automatic and/or inherent variability:
 First, as agreed by the Parties, the specif ic measure challenged by Guatemala and which
the Panel has to consider is the specific duty itself, not the PBS or other calculation
mechanisms. It is an undeniable fact that, for much of its existence, the specific duty
applied to each product has not varied, having been maintained at zero.
49
 Second, even if consideration is given to the constituent elements of the PBS, the latter
do not operate automatically, but different organs of the Peruvian State have to take
certain administrative steps in order for the reference prices and updated customs tables
to be published, and this is followed by administrative measures such as supreme
decrees and vice-ministerial resolutions. Without such steps and administrative
measures, the duties could not be established.
3.12. The specific duties are sufficiently transparent and predictable.
 Lack of transparency and predictability is an additional characteristic independent
of variability, although Guatemala seeks to lump the two together.
50 It cannot be
assumed that, because a measure is variable, it is also associated with a lack
of transparency or predictability, as is asserted by Guatemala.
 Peru has easily demonstrated that its measure is transparent and predictable, on the
basis of real facts. Operators not only know that the compound duty will never exceed
the bound rate, but the specific duties them selves are published in the customs tables,
the reference prices are published periodically and all the essential elements for their
calculation are available in hard copy publications of normative instruments and on the
web pages of Peru.
51
 Moreover, since the calculation methodology and information sources are accessible to
the public, traders can reasonably predict specif ic duties with a high degree of certainty.

45 Ibid. para. 5.61; Peru's opening statement at the first meeting of the Panel, para. 41.
46 Peru's first written submission, paras. 5.61-5.68; Peru's response to Panel question No. 123.
47 See Panel Report, Chile – Price Band System, para. 6.20 (where it was recalled "that Chile did not
respond to part (b) of question 46 of the Panel, which specifically requested: 'in this connection, have goods
entered the Chilean market at prices below the lower level end of price band? If so, please identify as many
instances as possible, and provide supporting documentation'").
48 Guatemala's first written submission, paras. 4.17-4.21; Guatemala's first executive summary,
paras. 3.4-3.7.
49 See Peru's first written submission, Charts 2-5.
50 Appellate Body Report, Chile – Price Band System, para. 234.
51 See Examples of information available on the SUNAT website, Exhibit PER-44.

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In addition, future prices are an element of estimation that can be used in conjunction
with available historical data.
 The variation in "future" prices is a normal risk of trade, as is clearly shown by
eight-month and two-year futures contracts introduced by Guatemala.

3.13. The specific duties do not isolate the Peruvian market.
 The duties that may result from the PBS do not have the "explicit purpose" 52
of insulating the Peruvian market from international trends.53
 It should be noted that every ordinary custom s duty is a form of protection and thus in
some way neutralizes international effects in relation to the local market. In other words,
t h e d i s t o r t i n g o r i n s u l a t i n g e f f e c t o f v a r i a b l e i m p o r t l e v i e s m u s t b e o f a d i f f e r e n t o r
greater degree.
 Peru's objective is solely to cushion the impact of sharp fluctuations in prices (volatility)
in the short term.
 The specific duties that are applied do not depend on a domestic or regulated price, as in
the case of variable import duties. On the contrary, international prices are a key part of
the calculation of the price band and reference prices.54
 Guatemala has sought to disparage Peru's demonstration of actual effects, calling it a
trade effects test and criticizing different specific elements. In each place, Guatemala is
mistaken.55

52 See Examples of information available on the SUNAT website, Exhibit PER-44.
53 Supreme Decree No. 155-2001-EF, Exhibit GTM-4, recitals.
54 Guatemala's first executive summary, para. 3.13.
55 Guatemala's response to Panel question No. 57. See also Peru's second written submission,
para. 3.63.

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3.14. The specific duties do not impose a target price.
 The target price is an important element of variable levies.
 This is apparent from the definitions of the term "variable levy", which refer to the
"administered domestic price"56 or "threshold price".57
 It was also apparent in Chile – Price Band System , where the Panel explained that
"[v]ariable levies generally operate so as to prevent the entry of imports priced below
the threshold or minimum entry price".58
 The Appellate Body also distinguished between variable import levies and minimum
import prices, in terms of the way in which the target price is calculated.59
 Peru has shown that there is no target price, using specific examples where sugar from
Guatemalan exporters has entered Peru at a price lower than the floor price of the PBS.

DUA (Single Customs
Declaration) No. 354310
from Guatemala
- Price at Border: $640
- Duty: Ø
- TOTAL: $640
DUA (Single Customs
Declaration) No.48732 from
Guatemala
- Price at Border: $534
- Duty: $35
- TOTAL: $569
GUATEMALA’S CONCEPTUAL ERROR (GTM-31)ACTUAL EXAMPLES
Price after application
of the variable
additional duty
Price before
application of the
variable additional
duty

3.15. It is clear that the specific duties do not have the same characteristics as the measures
referred to in the footnote to Article 4.2 of the Agreement on Agriculture.
4 GUATEMALA'S CLAIMS CONCERNING ARTICLE X OF THE GATT 1994 ARE BASED ON
MISTAKEN NOTIONS ABOUT THE MEASURE AND THE ARTICLE ITSELF
4.1. The measure in question is the specific du ty, not the Price Band System. The PBS is only
a methodology developed for the calculation of the ordinary customs duties, and nothing more,
and could even be dispensed with without altering the nature of the duty itself.

56 Negotiating Group on Non-Tariff Measures, communication from Australia, MTN.GNG/NG2/W/24,
Exhibit PER-48.
57 Discussion paper on tariffication submitted by the United States, MTN.GNG/NG5/W/97,
Exhibit PER-20.
58 Panel Report, Chile – Price Band System, para. 7.36 (c).
59 Appellate Body Report, Chile – Price Band System, paras. 236-237 (internal footnotes omitted).

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4.1 The legal standard and the relationsh ip between Articles X:1 and X:3 of the
GATT 1994
4.2. Guatemala fails to take into account the fact that there is no publication requirement in
respect of non-essential elements, and that the measure can perfectly well be applied in a uniform,
impartial and reasonable manner without non-essential elements being published.
4.3. Guatemala's argument relating to Article X:1 repeatedly confuses the measure with the
essential elements "leading to the … determination" 60 of the measure, and confuses the essential
elements with the discretionary reasoning and the sp ecific provisions in the text of the measure.
Similarly, its argument concerning Article X:3(a) also confuses the manner in which the measure is
applied with the discretionary reasoning and the specific provisions in the text of the measure.
4.4. In any event, the Executive possesses inherent constitutional and legal powers to exercise its
functions with a degree of discretion in the administration of a tariff measure
61, provided that
international commitments are met. There is no pr esumption that the exercise of such authority
prevents the administration of the measure in a uniform, impartial and reasonable manner, and
Guatemala presents no convincing evidence to the contrary.
4.2 Peru publishes every essential elemen t of the measure in accordance with
Article X:1 of the GATT 1994
4.5. Peru has published every "essential element" in accordance with Article X:1. Guatemala has
not demonstrated the contrary. In its oral statement at the first substantive meeting, Guatemala
said that the allegedly unpublished aspects could be essential elements "since they have a direct
impact on the amount of the additional duty".
62 However, the aspects referred to by Guatemala
have no impact on the magnitude of the duty and it is not necessary to justify the reasoning
behind those aspects. Everything that has a direct impact on the measure is published, including:
 import costs of 3%, the content or basis of which is not an essential element of the
specific duty, but the substantive background to the essential element;
 the amounts for freight and insurance, the calculation or basis of which is not an
essential element of the specific duty, but a background detail concerning a component
of the measure;
 international prices which form the basis for calculating the floor price and the reference
price, which are not essential elements of th e specific duty, but are background data on
a component of the measure.
4.3 Peru administers the specific duty in a uniform, impartial, and reasonable manner, in
accordance with Article X:3 of the GATT 1994.
4.6. With regard to the alleged anomalies which have no valid legal basis, Guatemala is wrong in
assuming that, in exercising its inherent authority 63, a Member cannot act in a uniform, impartial
and reasonable manner. Contrary to Guatemala's assumption, the requirements of Article X:3 do
not affect the inherent authority of each Member to exercise its power of discretion within

60 Panel Report, Thailand – Cigarettes (Philippines), para. 7.828.
61 Panels and the Appellate Body have made it clear that, pursuant to Article X:3(a), Members have
a degree of discretion to apply their laws and regulations as they deem fit and most appropriate to the
circumstances of the case. Consequently, not all cases of "discretionary" application of a measure amount
to administration in a manner that is not uniform, impartial and reasonable; provided that "certain minimum
standards for transparency and procedural fairness" are complied with, there will be no violation
of Article X:3(a). (See Panel Report US – COOL, para. 7.861; Panel Report, Thailand – Cigarettes (Philippines),
paras. 7.874 and 7.925, Panel Report, EC – Selected Customs Matters, paras. 7.141 and 7.434;
Appellate Body Report, Thailand – Cigarettes (Philippines), para. 202).
62 Guatemala's opening statement at the first meeting of the Panel, para. 67. In the same paragraph,
Guatemala states: "the case law has confirmed that the methodology for establishing any constituent element
of a fiscal burden is an element that must be published", citing Dominican Republic – Import and Sale
of Cigarettes. That case is different and hardly applicable to this case, since the unpublished element was
a survey used to determine the basis for an ad valorem duty.
63 See section 4.2 above.

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international, and also national, limits. In the case of Peru, this inherent authority rests with the
Executive through the Ministry of the Economy and Finance, which exercises the constitutional and
legal authority to regulate tariffs.64
 The extension of the customs tables has a valid legal basis. The Executive (and the
President of the Republic in particular) has the inherent authority to issue other supreme
decrees modifying Supreme Decree No. 115-2001-EF, which in any case does not
prohibit an extension. Moreover, extensions ensure the continuation of reasonable
administration, in accordance with Article X:3(a) since they do not change the
constituent elements of the PBS.
 The calculation of the price band for dairy products on the basis of reference price
ranges has a valid legal basis in the same Supreme Decree No. 155-2001-EF, Annex VI
of which clearly indicates the ranges
65, and in any case the fact that Annex III does not
mention the range corresponding to the calculation for dairy products has no bearing on
the application of the specific measure.
 The establishment of reference prices for dairy products at the same level for two
consecutive two-week periods has a valid legal basis, since the marker products are
published monthly, as established in the same Supreme Decree No. 115-2001-EF.
66
Therefore, it is entirely reasonable that Peru should only modify the level of the
reference prices for dairy products at such intervals.
 The calculation of the specific duty for two different categories of rice has a valid legal
basis, since the two categories of rice are included in the measure introduced in 1991
67,
by means of Supreme Decree No. 144-93-EF, which was never repealed or replaced –
a fact out borne out by the continued existence of the measure in question.
 The rounding method used to calculate the variable additional duty and the additional
rebate is applied reasonably, impartially and uniformly among operators in similar
situations. Peru has explained the facts and the method in detail, making it clear that
there is no problem of rounding. The specific duties or tariff reductions derived from the
difference between the reference price and the floor or ceiling price, respectively, are
rounded in the normal, accepted way.
5 ERRORS IN THE ALTERNATIVE CLAIM UNDER THE CUSTOMS VALUATION AGREEMENT
5.1. Guatemala continues to argue erroneously th at the measure in question is subject to the
Customs Valuation Agreement, although it is a spec ific duty because, according to Guatemala, the
duty in question "is not calculated on the basis of quantity, item or weight".
68 However, Peru's
specific duty on products subject to the measure is based on metric tonnes – a quantity. 69
The Customs Valuation Agreement only applies where the basis is a value 70, which is not the
situation in this case, and it is therefore impossible for the measure to be subject to the Customs
Valuation Agreement.
6 CONCLUSION
6.1. For all of the forgoing reasons, the Republic of Peru respectfully requests that the Panel reject
Guatemala's claims in their entirety.

Agreement, each of which refers to a value).

- C-1 -

ANNEX C
ARGUMENTS OF THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Argentina C-2
Annex C-2 Executive summary of the arguments of Brazil C-5
Annex C-3 Executive summary of the arguments of Colombia C-6
Annex C-4 Executive summary of the arguments of Ecuador C-8
Annex C-5 Executive summary of the arguments of the United States C-10
Annex C-6 Executive summary of the arguments of the European Union C-15

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ANNEX C-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF ARGENTINA
1. In this submission, Argentina will be referring to what it believes should be the interpretation of
Article 4.2 of the Agreement on Agriculture, and not to the other complaints that form part of this
dispute.
2. It is Argentina's understanding that, as stated by the Panel in Chile – Price Band System
(case cited by Guatemala), "Article 4.2 is of crucial importance in the context of the Agreement on
Agriculture" and is "central to the establishment and protection of a fair and market-orientated
agricultural trading system in the area of market access "1, as also reflected in the preamble to the
Agreement on Agriculture.2
3. Argentina also concurs with the view th at was expressed by the Appellate Body that
" … Article 4 of the Agreement on Agriculture is appropriately viewed as the legal vehicle for
requiring the conversion into ordinary customs du ties of certain market access barriers affecting
imports of agricultural products."3
4. At the same time Argentina would like to point out that, as stated by Guatemala 4, in the cited
case, Chile – Price Band System , the Appellate Body upheld the Panel's statement that Article 4.2
of the Agreement on Agriculture should be examined first, since it " deals more specifically and in
detail with measures affecting market access of agricultural products … ".5 The Panel had stated the
following: " We note that Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the
GATT 1994 both use the phrase 'ordinary customs duties'. Provided this phrase has the same
meaning in both provisions, neither provision can therefore be interpreted independently from the
other. However, having regard to the above, we believe that Article 4.2 of the Agreement on
Agriculture deals more specifically and in detail with measures affecting market access of
agricultural products … ".
6
5. In this same vein, the Appellate Body in the above case stated the following: " It is clear, as a
preliminary matter, that Article 4.2 of the Agr eement on Agriculture applies specifically to
agricultural products, whereas Article II:1(b) of the GATT applies generally to trade in all goods.
Moreover, Article 21.1 of the Agreement on Agriculture provides, in relevant part, that the
provisions of the GATT 1994 apply 'subject to the provisions' of the Agreement on Agriculture."7
6. On the basis of the above considerations, Argent ina is of the view that given the importance of
Article 4.2 of the Agreement on Agriculture, Members must be particularly careful to ensure
compliance and enforcement and to avoid taking any measures that could restrict market access
for agricultural products.
7. With respect to Article 4.2 of the Agreement on Agriculture, the Appellate Body stated the
following: "[W]e turn now to Article 4, which is the main provision of Part III of the Agreement on
Agriculture. As its title indicates, Article 4 deal s with 'Market Access'"… "During the course of the
Uruguay Round, negotiators identified certain bord er measures which have in common that they
restrict the volume or distort the price of imports of agricultural products. The negotiators decided
that these border measures should be converted into ordinary customs duties, with a view to
ensuring enhanced market access for such imports. Thus, they envisioned that ordinary customs
duties would, in principle, become the only form of border protection. As ordinary customs duties
are more transparent and more easily quantifiable than non-tariff barriers, they are also more
easily compared between trading partners, and thus the maximum amount of such duties can be

1 Panel Report, Chile – Price Band System, para. 7.15.
2 Agreement on Agriculture, preamble, paragraph 2.
3 Appellate Body Report, Chile – Price Band System, para. 201.
4 First written submission of Guatemala, para. 4.2. See also original footnote 78.
5 Appellate Body Report, Chile – Price Band System, para. 191.
6 Panel Report, Chile – Price Band System, para. 7.16.
7 Appellate Body Report, Chile – Price Band System, para. 186.

- C-3 -

more easily reduced in future multilateral trade negotiations. The Uruguay Round negotiators
agreed that market access would be improved-both in the short term and in the long term-through
bindings and reductions of tariffs and minimum access requirements, which were to be recorded in
Members' Schedules."
8
8. Regarding the measure at issue in this dispute, Argentina agrees with the complainant that the
variable additional duty is a measure that is " clearly inconsistent with Article 4.2 of the Agreement
on Agriculture, since it qualifies as a variable import levy, a minimum import price, or as a
measure similar to a variable import levy and a measure similar to a minimum import price … ",
all measures that are prohibited under Article 4.2 of the Agreement on Agriculture.9
9. As stated by the Appellate Body, " the obligation in Article 4.2 not to 'maintain, resort to, or
r e v e r t t o a n y m e a s u r e s o f t h e k i n d w h i c h h a v e b e e n r e q u i r e d t o b e c o n v e r t e d i n t o o r d i n a r y
customs duties' applies from the date of the entry into force of the WTO Agreement - regardless of
whether or not a Member converted any such measures into ordinary customs duties before the
conclusion of the Uruguay Round. The mere fact that no trading partner of a Member singled out a
specific 'measure of the kind' by the end of the Uruguay Round by requesting that it be converted
into ordinary customs duties, does not mean that such a measure enjoys immunity from challenge
in WTO dispute settlement. The obligation 'not [to] maintain' such measures underscores that
Members must not continue to apply measures cove red by Article 4.2 from the date of entry into
force of the WTO Agreement."
10
10. In the light of the above, the argument used by Peru in support of the WTO consistency of the
PBS, namely that the PBS "was part of Peru's tariff offer to its trading partners during the Uruguay
Round",11 would appear to be invalid.
11. Regarding the similar system examined earlier on, the Appellate Body held that " ... the
presence of a formula causing automatic and continuous variability of duties is a necessary, but by
no means a sufficient, condition for a particular measure to be a 'variable import levy' within the
meaning of footnote 1. 'Variable import levies' ha ve additional features that undermine the object
and purpose of Article 4, which is to achieve im proved market access conditions for imports of
agricultural products by permitting only the application of ordinary customs duties. These
additional features include a lack of transparency and a lack of predictability in the level of duties
that will result from such measures. This lack of transparency and this lack of predictability are
liable to restrict the volume of imports. "12 In this connection, we note that the Appellate Body
referred to what Argentina had pointed out earlier, namely that "an exporter is less likely to ship to
a market if that exporter does not know and canno t reasonably predict what the amount of duties
will be. This lack of transparency and predictability will also contribute to distorting the prices of
imports by impeding the transmission of international prices to the domestic market."13
12. It is particularly important that in trade relations, transparency and predictability should
prevail. In general terms, a price band system wi ll lessen the transparency and predictability of
trade.14 Argentina therefore considers that price band systems like the one at issue in this dispute
are contrary to the spirit of Article 4.2 of the Agreement on Agriculture and footnote 1 of that
article.
13. Finally, Argentina will turn briefly to the Panel's question relating to the relevance of the
Peru-Guatemala Free Trade Agreement (FTA) and Article 18 of the Vienna Convention on the
Law of Treaties to this case. Although the signature of an FTA that has not yet entered into force
would suggest that the agreement in question is not yet binding on the parties, under Article 18 of
the Vienna Convention on the Law of Treaties, th e parties are under obligation not to defeat the
object and purpose of the treaty prior to its entry into force. In other words, under this provision,

8 Appellate Body Report, Chile – Price Band System, para. 200.
9 First written submission of Guatemala, paragraph 4.3.
10 Appellate Body Report, Chile – Price Band System, para. 212.
11 First written submission of Peru, para. 3.23, already cited earlier.
12 Chile – Price Band System, Appellate Body Report, para. 234.
13 Chile – Price Band System, Appellate Body Report, para. 234.
14 We recall, in this connection, the Appellate Body's statement that " … the lack of transparency and
the lack of predictability are inherent in how Chile's price bands are established …". Appellate Body Report,

- C-4 -

upon signing a treaty the signatory parties take on a "good faith obligation to refrain from any acts
directed against the object of the treaty".15
14. It is Argentina's understanding that the pu rpose of an agreement of the FTA kind, including
the one signed by the parties to this dispute, is to "improve market access conditions, while at the
same time establishing clear rules and disciplines to promote trade in goods and services, and
investment".16 The FTA between Peru and Guatemala actually states in Article 1.2 that the
objectives of the Agreement are essentially to stimulate expansion and diversification of trade
between the Parties; to eliminate unnecessary obstacles to trade and facilitate cross-border trade
in goods and services between the Parties; to pr omote conditions of free competition within the
free trade area; to increase investment opportunities in the territories of the Parties; to provide
adequate and effective protection and enforcement of intellectual property rights in each Party's
territory, taking account of the balance of rights and obligations arising therefrom; and to create
effective procedures for the implementation and application of, and compliance with the
Agreement, for its joint administration, and for the prevention and resolution of disputes.
17
15. As Argentina has already pointed out in these proceedings, it considers that mechanisms of
the PBS type, like the one at issue in this disput e, lessen the transparency and predictability of
trade.18 This lack of transparency would appear to be inconsistent with the spirit of cooperation
and trade stimulation sought by agreements of the FTA type. We recall what Argentina said in
connection with the Chile – Price Band System case:
"… What is certain is that the bands will have to go, and it is a good thing that the
country should get used to the idea that it will not be able to continue living with price
bands if it wants to join the major leagues of world free trade … The international free
trade agreements are unequivocal about wanting to see bands abolished because they
undoubtedly cause distortion".
19
16. In Argentina's view, the above considerations point to the conclusion that the quest for
more open and fluid trade, free among other things from unnecessary obstacles, through the
conclusion of a free trade agreement, should not encounter the kind of barriers produced
by certain measures whose intrinsic characteristics tend to reduce transparency and predictability,
and hence restrict trade.

and Marcelo Delpech, page 238.
16http://www.acuerdoscomerciales.gob.pe/index.php?option=com_content&view=category&layout=blog
&id=125&Itemid=148.
17 http://www.sice.oas.org/ctyindex/PER/PERagreements_e.asp. Organization of American States,
Foreign Trade Information System.
18 Third –Party Written Submission of Argentina, 20 December 2013, para. 17.
19 Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products
(WT/DS207), First written submission of Argentina, Section C - Arguments, page A-16.

- C-5 -

ANNEX C-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL*
1. Brazil hereby presents its integrated executive summary, where it provides a brief
description of the main points presented in its Third Participant Submission and Oral Statement.

(a) A charge limited to the bound tariff in a Member's Schedule of Commitments does
not, in and of itself, make it consistent with WTO obligations

2. In Brazil’s view, tarification is one of the foundations of the Agreement on Agriculture (AA).
However, the concept of tarification is not restricted to the level of the tariffs. This means that the
fact that a measure establishes a duty limited to the bound tariff in a Member's Schedule of
Commitments is a necessary, but not a sufficient condition to establish consistency with WTO
obligations.

3. In this sense, Brazil recalls what the Appellate Body (AB) stated in the Chile-Price Band System
Dispute: the fact that the Chilean Price Band System (PBS) had a cap at the country's bound rate
did not make it, for that reason, consistent with Article 4.2 of the AA; rather, the cap merely
reduced the extension of trade distortions, but did not eliminate the lack of transparency and
predictability in the fluctuation of the duties resulting from the Chilean measure.
1

4. Brazil therefore suggests that in assessing the characteristics of the challenged measure, the
Panel first scrutinize its overall features based upon the relevant facts, law and jurisprudence vis-
à-vis the kind of measures proscribed under Art 4.2 of the AA, footnote 1. If inconsistency is
found, then the panel does not need to assess consistency under GATT, Art. II.1(b), as the
measure would have to be modified or withdrawn anyway – it can then exercise judicial economy.

5. Once again, Brazil recalls that as the measure at issue is covered by the AA, which
establishes on its Art. 21.1 its prevalence over other agreements under Annex 1A of the Marrakesh
Agreement, the appropriate order of analysis of th e claims in the present proceedings is, firstly,
the one related Art. 4.2 of the AA, and then the other related to Art. II.1(b) of GATT 1994.
Accordingly, in the present case, the AA is lex specialis.

(b) One of the main purposes of the AA is to improve market access for agricultural
products by enhancing transparency and pr edictability in agricultural trade and
by strengthening of the link between domestic and international markets.

6. As expressed in its Oral Statement, Brazil und erstands that one of the core issues under this
dispute is the importance of transparency and pr edictability to the establishment of a fair and
market-oriented agricultural trading system, as pr escribed by the AA. Accordingly, Article 4.2 of
the Agreement of Agriculture provides, in its footnote 1, a list of measures that should have been
converted into ordinary customs duties.

7. In Brazil’s view, if a measure establishes a form ula for periodical duty calculation, even if all
elements related to that formula are published and explained in detail, it can still have a negative
effect on market access, related to the uncertainty in the long term of the customs duties that will
have to be paid. As a consequence, the celebration of long term supplying contracts would be
discouraged, and market access would be diminished.

8. In addition, Brazil emphasizes that such a negative effect on trade is even more pronounced
and distortive when some Members are not subjec t to the measure. In this scenario, importers
would be led to celebrate long term contracts with exporters from exempted Members, as costs
with importation duties would be more predictable.

* This text was originally submitted in English by Brazil.
1 Chile – Price Band System (Appellate Body Report, para. 259).

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ANNEX C-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA*
1. I am grateful for this opportunity to participate as a third party in this dispute. Our principal
aim is to provide the Panel with information to settle this dispute without sticking exclusively to
the precedents provided by the Chile – Price Band System case.
2. In that case, it was argued that "[i]n gene ral terms, the purpose of this exercise was to
enhance transparency and predictability in agricultural trade, establish or strengthen the link
between domestic and world markets, and allow for a progressive negotiated reduction of
protection in agricultural trade."
3. Although in general terms this opinion would appear to be in keeping with the doctrine of
"tariffication" of the Agreement on Agriculture, Colombia considers that while specific elements
thereof may be of illustrative value and could provid e useful guidance to this Panel, they are not
binding, nor are they necessarily applicable to this case under the provisions of the DSU.
4. Traditionally, multilateral trade policy has sought to make market access predictable and
more liberal. This is done, inter alia , through the binding of maximum permissible tariffs in
M e m b e r s ' S c h e d u l e s o f C o m m i t m e n t s a n d a p p l y i n g r e d u c t i o n s t o a r r i v e a t n e w , l o w e r ,
bound tariffs.
5. As a result of the Uruguay Round, all Member s, including Peru, converted their various forms
of non-tariff measures that they used in agricultural trade into bound tariffs that provided
substantially the same level of protection.
6. By prohibiting Members from maintaining, resorting to or reverting to any measures of the
kind which have been required to be converted into ordinary customs duties, Article 4.2 of the
Agreement on Agriculture provides the legal und erpinning for what, in ordinary parlance, is
referred to as a "tariff only" regime for trade in agricultural goods.
7. It should be recalled that there is no rule in the multilateral trading system that prevents a
Member from applying tariffs or altering them. In the case of the products covered by the
Agreement on Agriculture, if a Member applies ordinary customs duties and subjects them to
calculation methodologies that cause them to vary without exceeding the maximum WTO bound
tariff or infringing any of the other rules of the system, it cannot be accused of acting
inconsistently with its WTO obligations.
8. The concept of "ordinary customs duties" does not correspond to a single value. The concept
covers everything that is a customs duty. The intention of the multilateral trading system was to
ensure that there were no hidden costs affecting the importation of agricultural goods in the same
way that tariffs would affect them, but that would not be taken into consideration in determining
whether a Member had exceeded the maximum WTO bound tariff.
9. Once the legal status of the measure has been determined, i.e. whether it is an ordinary
customs duty or not, it is possible to determine whether or not there is any inconsistency
with Article II.1(b) of the GATT.
10. The complainant argues that the measure seeks to insulate the Peruvian market from
international price fluctuations. In the Request for the Establishment of a Panel, the complainant
sets out the legal basis for its complaint. It is not clear to Colombia how Peru's obligations under
provisions cited by the complaint would be affected per se by the above situation. As I mentioned,
if the bound tariff is not exceeded, if the meas ures do not involve a restriction to trade in
agricultural goods through measures other than the imposition of ordinary customs duties, and if

* Colombia requested that its oral statement serve as the executive summary.

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there are no quantitative restrictions on the imports in question, other economic effects of the
measure should not be fundamental.
11. It goes without saying that the methodology used to calculate variations in the tariff and to
report the applicable tariff must be transparent and predictable for the economic operators.
In Colombia's view, the methodology adopted by Members to calculate their tariffs may be
transparent and predictable, and at the same time variable. If the variables on the basis of which
the calculation is made are known in advance by th ose involved in the trade transactions, there is
no reason why they should be considered unpredictable or lacking in transparency.
12. At the same time, the Peru-Guatemala Free Trade Agreement signed in Guatemala City on
6 December 2011 has not yet entered into force – although it is true that in accordance
with Article 18 of the Vienna Convention on the Law of Treaties "[a] State is obliged to refrain from
acts which would defeat the object and purpose of a treaty" when it has signed the treaty.
13. Article 1.2 lists the objectives of the Agreement. In Colombia's view, the measure under
consideration does not per se undermine any of those objectives. Section F in Chapter 2 of the
Agreement contains the provisions relating specifically to agriculture. Sections B and D of the
same chapter contain provisions on tariff elimination and non-tariff measures. Once again, it does
not appear to this delegation that those provisions contain special rules in relation to the
provisions of Article 4 of the Agreement on Agri culture that could be undermined by the measure
under consideration.
14. Now, although Peru has agreed with so me of its trading partners not to apply " any price
band system to imported agricultural goods", (see, for example, the Trade Promotion Agreement
between Peru and the United States, Appendix I to the General Notes to the Tariff Schedule of
Peru), at the same time, the Free Trade Agreement with Guatemala states that "Peru may
maintain its price band system … for goods subject to the System [as provided for in Peru's
schedule]". Colombia would like to call the attent ion of the Panel to Article 1.3 of the Agreement
between Peru and Guatemala in relation to the pr ovisions of Article 30 of the Vienna Convention.
Under the former, the Peru-Guatemala FTA would prevail in case of incompatibility with the
WTO Agreement. Article 30 of the Vienna Convention, for its part, contains provisions on the
"[a]pplication of successive treaties relating to the same subject-matter". We call upon the Panel
to examine whether in this case there is, or could be, any incompatibility between the FTA and the
WTO Agreement, and whether there are grounds for applying Article 59 of the Vienna Convention.
15. Finally, Colombia notes that Articles 3.7 and 3.10 of the DSU are essential to compliance
with panel and Appellate Body procedures, and must therefore form part of the objective analysis
that panels must make of the matter before them under Article 11 of the DSU. Assessing each
complaint properly and conducting the panel procedure in good faith and not on a contentious
basis is as important as determining compliance with the principle whereby a Member must
e x e r c i s e d u e j u d g e m e n t a s t o w h e t h e r i t w o u l d b e f r u i t f u l t o h a v e r e c o u r s e t o t h e m e c h a n i s m
provided for in the DSU and to reach a settlement that would not only be positive for that Member
and the opposing party, but also for WTO Members in general.
16. Colombia has now clarified its views on cert ain systemic aspects of this dispute. We will
gladly answer any questions that the panel or the parties may wish to ask us.

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ANNEX C-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF ECUADOR
1. FIRST: ORDER OF ANALYSIS. The Appellate Body has not only made it clear that a panel
may depart from the sequential order suggested by a complaining party1, but it has established, as
a general rule, that panels are free to structur e the order of their analysis as they see fit. 2
According to this general approximation, it is the "structure and logic" of the provisions under
consideration in each dispute that determine th e proper sequence of steps in the process of
analysis incumbent on the Panel, when that analysis comprises one or more WTO provisions or
agreements.
3
2. Peru has highlighted two issues it considers fundamental, warranting a decision at the
outset. Here, we would note in particular the following: "Although Article II:1(b) of the GATT 1994
and Article 4.2 of the Agreement on Agriculture establish the legal consequences of measures
being 'ordinary customs duties', they do not define the term" 4; Peru goes on to
say: "In accordance with Article 31 of the Vie nna Convention, it is necessary to examine the
ordinary meaning of 'ordinary customs duties' in their context and in the light of their object and
purpose … ". 5
3. This order would also provide for the possibility of applying the principle of judicial economy
with regard to the complainant's other claims.
4. In our view, therefore, the order of analysis proposed by Peru seems to be the most logical
and economical one in the circumstances obtaining in this dispute.
5. SECOND: HARMONIOUS INTERPRETATION AND APPLICATION. The Appellate Body recalled:
"that in Argentina – Footwear (EC) and US – Upland Cotton, [the Appellate Body] affirmed that the
Multilateral Agreements on Trade in Goods, contained in Annex 1A of the WTO Agreement, are
"integral parts" of the same treaty, the WTO Ag reement, and that their provisions, which are
binding on all Members, are all provisions of on e treaty, the WTO Agreement. The Appellate Body
thus considered that a treaty interpreter must read all applicable provisions of a treaty in a way
that gives meaning to all of them, harmoniously".
6
6. This, in our view, implies among other things that, barring the presence in one of the
agreements of an expressly binding provision whereby a different meaning and scope is explicitly
established for an obligation that is also contained in other agreements that are integral parts of
the WTO Agreement, such obligation shall have a similar meaning and scope in all the agreements
concerned. This line of reasoning was applied by the Appellate Body in EC - Bananas III, where it
affirmed that "the provisions of the GATT 1994 … apply to market access commitments concerning
agricultural products, except to the extent that the Agreement on Agriculture contains specific
provisions dealing specifically with the same matter".
7
7. In short, it is "important to underst and that the WTO Agreement is one treaty". 8 And this
must be so, inter alia, in view of the object and purpose of the WTO Agreement, which is: "the
security and predictability of 'the … arrangements directed to the substantial reduction of tariffs

1 Appellate Body Report, United States – Zeroing (EC) (Article 21.5 - EC), paras. 277-279.
2 Appellate Body Report, Canada – Wheat Exports and Grain Imports, paras. 126-129.
3 Appellate Body Reports, Canada – Autos, para. 151; and Canada – Wheat Exports and Grain Imports,
para. 109.
4 First written submission of Peru, para. 5.12.
5 First written submission of Peru, para. 5.13.
6 Appellate Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain
Products from China, footnote 548.
7 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of
Bananas, para. 155.
8 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products,
para. 75, after citing Article II.1 of the Marrakesh Agreement.

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and other barriers to trade' is an object and purpose of the WTO Agreement, generally, as well as
of the GATT 1994".9
8. Peru has pointed out that it has published the most important elements of its price band
system, in accordance with Article X:1 of the GATT 1994. 10 It has also pointed out that it has
administered that system in a uniform, impartial and reasonable manner, in accordance
with Article X:3 of the GATT 1994.1112
9. In our view, in the event that the Panel find s in favour of these assertions, the Peruvian
price band system would also have to be declared "transparent and predictable" in the analysis
under Article 4.2 of the Agreement on Agriculture.
10. THIRD: AUTHORITY OF EVERY MEMBER TO VARY DUTIES. First, to the extent that
ordinary customs duties are not applied in excess of those provided for in the Schedule of the
Member concerned, that Member may apply a type of duty different from the type provided for in
its Schedule.13
11. Secondly, with regard to the level, it cannot be said that the WTO agreements prohibit a
Member from varying those duties. Nor do the WTO agreements impose temporal restrictions on
how such adjustments are made. A Member may pu blish an adjustment annually, or make the
adjustment the following week, as the case may be. As long as the duty is not in excess of that
provided for in the Schedule, variability is perfectly valid and lies within the authority of each
Member.
12. Finally, we agree with Peru that the measure in the present case must be analysed
objectively and independently: the circumstances surrounding the measure analysed in the
Chile - Price Band System case were different from the Peruvian measure, and it is not established
by that case that any price band-type measure is inconsistent with the WTO agreements.

9 Appellate Body Report, European Communities – Customs Classification of Certain Computer
Equipment, para. 6.108.
10 First written submission of Peru, para. 5.2.
11 First written submission of Peru, para. 5.3.
12 The Appellate Body referred to the fundamental importance of the transparency standards contained
in Article X of the GATT 1994. Panel report, EC – Selected Customs Matters, para. 7.107, footnote 372.
13 Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and
Other Items, para. 55.

- C-10 -

ANNEX C-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES*
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION (DECEMBER 20, 2013)

I. INTRODUCTION

1. As reflected in Article 4.2 of the Agreement on Agriculture, in the Uruguay Round Members
agreed that they would convert measures such as variable import levies into ordinary customs
duties, and that they would no longer adopt or maintain such measures. The measure at issue in
this dispute appears to be a measure "of the kind" that falls within the scope of Article 4.2. Indeed,
it appears indistinguishable from Chile's price band system, which was the focus of the previous
Chile – Price Band dispute. Accordingly, to the extent that the measure at issue operates as a
variable import levy or other similar measure, such a measure would appear to be inconsistent
with Peru's obligations under the Agreement on Agriculture.

II. ORDER
 OF ANALYSIS

2. The United States suggests that the analysis should begin with Guatemala's Article 4.2
claim. In this regard, the panel and Appellate Body reports in Chile – Price Band are instructive. In
that dispute, the Appellate Body upheld the panel's decision to consider the Article 4.2 claims first.
The Appellate Body recognized that this provision applies specifically to agricultural products,
whereas Article II:1(b) of the GATT applies generally to trade in all goods. The Appellate Body also
observed that, if a panel found an inconsistency with Article 4.2 of the Agreement on Agriculture, a
further finding under Article II:1(b) of the GATT would not be necessary to resolve the dispute. But
if the panel first found an inconsistency with Article II:1(b), it would still have to examine whether
the measure was inconsistent with Article 4.2.

3. In contrast, Peru appears to be suggesting that the Panel evaluate, first, whether its price
band duties are "ordinary customs duties" as that term is used in both Article II:1(b) of the
GATT 1994 and footnote 1 of Article 4.2 of the Agreement on Agriculture . Peru's suggested
approach risks confusion over the differences betw een the distinct legal obligations contained in
Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994.

III. PERU'S
 PRICE BAND SYSTEM APPEARS TO BE THE TYPE OF MEASURE PROHIBITED
UNDER ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE

4. Peru's price band system appears to fall wi thin the category of trade-distorting measures
prohibited under Article 4.2 of the Agreement on Agriculture.

A. The Price Band Mechanism Appear s To Be A Measure Prohibited By
Footnote 1

5. Peru's price band system appears to be a "variable import levy," or at a minimum, is
"similar" to both variable import levies and "minimum import prices," within the meaning of
footnote 1.

6. The principal contours of the price band system appear to be undisputed. These
characteristics appear to meet the description of a variable import levy, within the meaning of
footnote 1. Peru's price band mechanism employs a formula that generates additional duties,
which automatically change every two weeks in resp onse to movements in either or both of the
two key parameters – i.e., the lower band and the reference price. By design, the structure of the
price band mechanism also tends to impede the transmission of international prices to the
domestic market.

* This text was originally submitted in English by the United States.

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7. The price band measure also appears to be "similar" to a "minimum import price," within the
meaning of footnote 1. Peru emphasizes the fact that its price band system does not incorporate a
target price. But a definitive target price is not required to establish that a system is "similar" to
minimum import prices. Here, the overall nature of the measure – including its tendency to distort
the transmission of declines in world prices to the domestic market – suggests that it is "similar" to
a minimum import price.

B. The Price Band Duties Are Not "Ordinary Customs Duties"

8. If the Panel were to find that Peru's price band system is within the scope of the measures
covered by Article 4.2 and footnote 1 of the Agreement on Agriculture, then these measures would
not be ordinary customs duties. Accordingly, this dispute does not – as Peru suggests – present
the Panel with the general question of what may or may not be an "ordinary customs duty." It is
sufficient to note that an "ordinary customs duty" can be defined by exclusion – i.e., by
ascertaining whether a measure is of a type that does not constitute "ordinary customs duties."
Because Peru's price band system appears to be similar to the measures specifically enumerated in
footnote 1, the price band duties would, by definition, not be "ordinary customs duties."

9. In its submission, Peru offers a list of characteristics that it claims are "clear features" of
"ordinary customs duties," and attempts to map those features onto its price band scheme. Peru's
efforts are unavailing. A list that may include certain common attributes is not instructive as to
whether a particular border charge is an ordinary customs duty, or instead is a variable import
levy or other type of measure that is prohibited under Article 4.2.

10. Further, Peru's assertion that ordinary customs duties "may vary" misses the mark.
Although a Member may decide to change the applied rates of ordinary customs duties, variation is
not an inherent or necessary characteristic of such duties.

11. Peru's reliance on domestic legislative materials is equally unavailing. A Member's own
characterization of a measure is not dispositive of how the measure is considered with respect to
specific WTO obligations. And if one does consider Peru's legislative framework, it does not, in fact,
appear to support Peru's argument that its measures are ordinary customs duties. Peru's price
band system and its ordinary customs regime are set out in different legislative and administrative
instruments, enacted by different government bo dies. In addition, the price band duties vary
regularly, according to a mathematical formula that does not apply to the normal ad valorem
customs duties.

12. Contrary to Peru's assertion, the final offer tabled by Peru during the Uruguay Round
negotiations cannot transform its price band duties into "ordinary customs duties." Even if Peru
had incorporated a price band system into its Schedule, this would not immunize that measure
against a challenge under Article 4.2.

13. Peru emphasizes that it had in place a pred ecessor version of its current price band system
prior to the entry into force of the WTO Agreement. But if that price band mechanism fell within
the scope of footnote 1, and Peru failed to convert it into "ordinary customs duties," Article 4.2
would bar Peru from "maintain[ing]" this scheme as of the date of the entry into force of the
WTO Agreement – i.e., January 1, 1995. Likewise, under Article 4.2, Peru would not be permitted
to "resort to" new measures of the kind listed in footnote 1, such as the price band system
challenged by Guatemala in this dispute.

IV. ARTICLE
 II:1(B) OF THE GATT 1994

14. If the Panel finds that Peru's price band sy stem is inconsistent with Article 4.2 of the
Agreement on Agriculture, resolution of the dispute would not require the Panel to make findings
on Guatemala's claim under Article II:1(b), second sentence, of the GATT 1994. If the Panel
makes findings on this claim, the United States observes that the price band duties would, by
definition, appear not to constitute "ordinary customs duties."

15. It appears to be undisputed that Peru did not record its price band system in its Schedule,
as called for by the Understanding on the Interpretation of Article II:1(b) of the General
Agreement on Tariffs and Trade 1994 . Accordingly, the price band duties would be imposed in

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excess of the amounts permitted under Peru's Schedule, and would thus be inconsistent with
Article II:1(b) of the GATT 1994, second sentence.

V. THE
 FTA BETWEEN GUATEMALA AND PERU DOES NOT BAR CLAIMS UNDER THE DSU

16. The United States sees no basis for Peru's reliance on the FTA that it signed with Guatemala.

17. There is no basis in the DSU for Peru's request that the Panel make findings with respect to
the parties' respective rights and obligations under a non-covered agreement – i.e., the Peru-
Guatemala FTA – for which it does not invoke a defense under Article XXIV of the GATT 1994.
Consistent with the Appellate Body's findings in Mexico – Taxes on Soft Drinks , the Panel should
reject Peru's apparent suggestion that the Panel decline to make the findings called for under its
terms of reference.

18. The United States does not see a basis for the Panel to make findings on whether Guatemala
has acted in bad faith. Peru mainly relies on Article 3.10 of the DSU. But Article 3.10 is not
presented as an obligation regarding a Member's conduct. The United States also does not believe
that Article 18 of the Vienna Convention on the Law of Treaties is relevant here.

19. Peru also errs in its assertion that the FTA resulted in a modification or waiver of
Guatemala's rights under the WTO Agreement. A bilateral FTA – and the parties' FTA is not even in
force – cannot amend the WTO Agreement.

20. The United States also does not agree with Peru's assertion that the text of an FTA may
result in a waiver of Members' right to invoke WTO dispute settlement. Mutually agreed solutions
are given a particular legal status under the DSU. It is a far different matter to argue that
Members can waive their WTO dispute settlement rights through an FTA.

EXECUTIVE SUMMARY OF U.S. ORAL STATEMENT (JANUARY 14, 2014)

21. In our statement today, the United States will address four issues. The United States has
addressed certain aspects of these issues in our written submission. Where we address them again
today, we will focus on the points raised by other third parties and the list of topics recently
circulated by the Panel.

22. First, like Argentina and Brazil, the United States believes that the Panel's analysis should
begin with Article 4.2 of the Agreement on Agriculture . For purposes of assisting the parties in
finding a positive solution to the dispute, it is us eful to begin the analysis of Peru's measures with
the more specific provision of the covered agreements before addressing more general obligations.
This is consistent with the approach of past pa nel and Appellate Body reports and would facilitate
the exercise of judicial economy. On the other hand, the interests of judicial economy would not be
served if the Panel began with the second sentence of GATT 1994 Article II:1(b).

23. Second, turning to Guatemala's claim under Article 4.2 of the Agreement on Agriculture, the
relevant inquiry is the extent to which Peru's price band falls within the category of measures
listed in footnote 1. The United States observes that Peru's price band system appears to be a
"variable import levy," or at least a measure that is "similar" to a variable import levy, within the
meaning of footnote 1. It is also similar to a "minimum import price."

24. The table presented by Guatemala is instruct ive. This table compares Peru's price band
system with the mechanisms from the or iginal and Article 21.5 proceedings in Chile – Price Band .
Guatemala's table is, in certain respects, a simplification. But it sets out the principal contours of
the three price band systems and confirms the striking similarities between them.

25. The EU suggests that, to qualify as a variable import levy, a measure must be constructed in
a way that renders it impossible for a trader to effectively anticipate the duties that it will pay. This
position lacks support in the text of the agreement, or from any panel or Appellate Body findings.

26. "Lack of transparency" and "lack of predictabi lity" are not independent, absolute tests that a
measure must pass in order to qualify as a variable import levy. Instead, it is the presence of the
underlying formula or scheme that renders a measure inherently variable, because it causes and
ensures that levies change automatically and continuously. It is this feature that renders the

- C-13 -

resulting duties less transparent and less predictable than ordinary customs duties. A measure
need not render prediction of duties "impossible, " as the EU suggests. Nor can mere publication of
the elements of a measure that otherwise would be inconsistent with Article 4.2 render that
measure consistent with that obligation.

27. Likewise, the Appellate Body has recognized that lack of transparency and predictability will
also contribute to distorting the prices of imports by impeding the transmission of international
prices to the domestic market. But this, too, should not be seen as an independent, absolute test.
There is no need to conduct statistical or econometric analyses to assess whether, in fact, the
measure has impeded the transmission of world prices to the domestic market.

28. Third, with respect to Guatemala's claims under GATT Article X, in the particular
circumstances of this dispute, the exercise of judicial economy may be appropriate.

29. To the extent that the Panel does address Arti cle X, the United States would note that it has
difficulty understanding the basis for Guatemala's cl aim. Article X:1 requires prompt publication of
measures of general applicability pertaining to, among other things, rates of duty. Here, it appears
that Peru has published its price band system. Guatemala does not argue otherwise.

30. Rather, Guatemala relies on the "essential element" test articulated by the panel in
Dominican Republic – Cigarettes , and using this idea, argues that Peru should have published
certain methodologies. In our view, the "essentia l element" test articulated by the panel in
Dominican Republic – Cigarettes should be viewed with caution. The United States has difficulty
understanding a textual basis for using this type of test in the application of Article X:1. The text
does not refer to "methodologies" or "data," much less "essential elements."

31. Article X:1 does not require the publication of every input or data point that underlies a
measure of the kind subject to Article X:1 – that is, a law, regulation, judicial decision, or
administrative ruling of general application. The interpretation argued for in this dispute, while
purportedly limited to "essential" elements (an inherently imprecise concept), could impermissibly
expand the obligations agreed in Article X:1 and impose unreasonable burdens on Members.

32. Finally, the FTA that Peru signed with Guatemala is irrelevant to the adjudication of claims in
this dispute. A determination of whether a measure is consistent with a covered agreement does
not hinge on the terms of an agreement not cove red, such as an FTA. Accordingly, the Panel
should reject Peru's apparent suggestion that the Panel decline to make findings called for under
its terms of reference, and that it adjudicate ri ghts and obligations under the FTA. Such a step
would be contrary to the text of the DSU and reports in previous disputes.

33. Peru has not adequately supported its assertion that the text of an FTA – in this case, which
is not even in force – can serve to bar a Member from invoking its rights under the DSU. FTAs are
not referenced in the DSU, and the DSU does not accord an (alleged) FTA provision an effect like
that of a mutually agreed solution or other waiver of WTO dispute settlement rights. We also note
that Article 18 of the Vienna Convention on the Law of Treaties – which Peru invokes – has no
bearing on this dispute.

34. Articles 3.7 and 3.10 of the DSU should not affect the Panel's analysis of the substantive
provisions at issue in this dispute. The first sentence of Article 3.7 provides that, "[b]efore bringing
a case, a Member shall exercise its judgment as to whether action under these procedures would
be fruitful." As the Appellate Body observed, a Member is expected to be largely self-regulating in
deciding whether any such action would be "fru itful." The Appellate Body has confirmed that a
Member should be presumed to have asserted a claim in good faith, and Article 3.7 neither
requires nor authorizes a panel to look behind that Member's decision and to question its exercise
of judgment.

35. The United States cannot envision a basis for a panel to opine on whether or not a Member
has exercised its judgment "before bringing a case." Once a dispute has been brought, the
Member has exercised its judgment and the provision imposes no ongoing obligation.

36. Likewise, the United States does not view th e first sentence of Article 3.10 as imposing
binding or enforceable obligations on Members. The first sentence of Article 3.10 provides: "[i]t is
understood that … if a dispute arises, all Members will engage in these procedures in good faith in

- C-14 -

an effort to resolve the dispute." The text of this provision makes clear that Article 3.10 sets out a
common understanding among Members as to how th ey "will" engage in dispute settlement, but
does not contain a binding or enforceable obligation. Members knew how to draft language that
would impose binding and enforceable obligations, and took evident care to avoid doing so here,
perhaps to avoid arguments of the sort advanced here – as opposed to arguments relating to
whether a Member has observed its substantive WTO obligations.

37. In response to the Panel's query, the United States does not view the doctrine of " abus de
droit" as playing a role in connection with the scope of Articles 3.7 and 3.10 of the DSU. Neither
provision refers to " abus de droit ," and there is no basis for importing this doctrine into the
negotiated text of these provisions.

- C-15 -

ANNEX C-6
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION*
I. THE PERU-GUATEMALA FREE TRADE AGREEMENT

1. The Peru-Guatemala Free Trade Agreement (PGFTA) may be relevant to this case to the
extent it contains a clear commitment on behalf of Guatemala in respect of non-challenging the
Peruvian price band system (PBS) in the WTO. The PGFTA contains several provisions which may
be helpful in this respect.
1 There is an apparent contradiction between Article 1.3(1) and
Article 1.3(2) of the PGFTA, to the extent to which the first paragraph states that the parties
consider their rights and obligations in conformity with their WTO obligations, but in the second
paragraph the parties nevertheless stipulate that in case of non-conformity the FTA provisions
would prevail. Article 15.3 of the PGFTA reflects the principle electa una via, non datur recursus ad
alteram without further relevant indications.

2. The European Union notes that, according to the Appellate Body, it is possible for Members
to waive their WTO rights.
2 The European Union further recalls that the Appellate Body has made it
clear from the very beginning that the WTO Agreements should "not be read in clinical isolation
from public international law".3 Subsequent agreements between the parties (either contained in a
mutually agreed solution under DSU rules or in any other document having a binding nature under
international rules) as well as rules of international public law are relevant for the interpretation of
the covered agreements.
4 Thus, an FTA may be relevant to interpret the scope of the obligations
of the Parties at issue. This should not be confused with the application of an FTA instead of, or
with primacy over, a WTO agreement.

3. Article 18 of the Vienna Convention on the la w of Treaties (VCLT) is an expression of the
good faith principle. According to this principle the parties should refrain from a conduct which
would defeat the object and purpose of a Treaty before its entry into force. Article 3.10 of the DSU
refers to Members engaging in WTO dispute settlement proceedings in good faith. The concept of
good faith in Article 3.10 is informed by good faith as a general principle of law and a principle of
customary international law. The principle of good faith can be invoked by itself in WTO
proceedings and not only as an "add-on" to the violation of another WTO rule.
5

II. ORDER OF ANALYSIS

4. The European Union considers that the Panel should start its analysis with the concept of
"ordinary customs duties" and consequently under Article II:1(b) of the GATT 1994. This approach
is different from the one advocated by other participants
6 because it presents the advantages of a
position that has as a starting point a presumption that measures are in principle WTO compatible
unless otherwise proven.

5. The Appellate Body stated in Chile – Price Band System that both Article 4.2 of the
Agreement on Agriculture and Article II:1(b) of the GATT 1994 refer to ordinary customs duties
and that "the term 'ordinary customs duties' should be interpreted in the same way in both of
these provisions".
7 While Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the
GATT 1994 contain "distinct legal obligations", 8 the two are related through the use of the same
concept, i.e. "ordinary customs duties". Article II:1(b), first sentence, of the GATT 1994 obliges

* This text was originally submitted in English by the European Union.
1 Article 2.3(2), read in conjunction with Annex 2.3 (9) to the PGFTA, and Article 1.3 of the PGFTA.
2 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II), para. 217.
3 Appellate Body Report, US – Gasoline, p. 17.
4 Articles 31(3)(b) and 31(3)(c) of the Vienna Convention on the law of Treaties. See also the Panel
Report, EC – Bananas III (Article 21.5 – Ecuador II), para. 7.58.
5 Appellate Body Report, EC – Bananas III, paras. 223-28.
6 Argentina's third party written submission, paras. 8-9, and United States' third party written
submission, paras. 3-7.
7 Appellate Body Report, Chile – Price Band System, para. 188.
8 Ibid.

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WTO Members not to exceed a particular threshold of tariff binding when imposing ordinary
customs duties. In turn, Article 4.2 of the Agreem ent on Agriculture mandates the conversion of
certain non-tariff protectionist measures into ordinary customs duties.

6. Footnote 1 to the Agreement on Agriculture is drafted by reference to an inclusive category
of measures that Members cannot maintain ("quantitative import restrictions, variable import
levies, minimum import prices, discretionary import licensing, non-tariff measures maintained
through state-trading enterprises, voluntary expo rt restraints, and similar border measures…").
Footnote 1 also incorporates an exclusive category of measures which do not fall under Article 4.2
of the Agreement on Agriculture ("… other than ordinary customs duties" as well as "measures
maintained under balance-of-payments provisions or under other general, non-agriculture-specific
provisions of GATT 1994 or of the other Multilat eral Trade Agreements in Annex 1A to the WTO
Agreement").

7. The Appellate Body has confirmed that in "scope" situations
9 the analysis should start under
the provision which, if applicable, will make unnecessary recourse to other provisions. 10 If the PBS
were to fall under the exclusive category of ordinary customs duties, the Panel would not need to
consider whether the PBS falls under any of the measures listed in the inclusive category. 11 In any
event, the European Union draws the attention that whichever order of analysis the Panel may
chose, given the absence of remand authority under the DSU, judicial economy may not be
appropriate if not allowing the Appellate Body to complete the analysis in the case of an appeal.
12

III. ARTICLE II:1(B) OF THE GATT 1994

1. Ordinary customs duties

8. The Appellate Body has determined that GA TT 1994 does not regulate the type of duties
which can be imposed. It held that Argentina could apply a specific duty provided that the ad
valorem equivalent of that specific duty did not exceed the bound rate.
13 Members are thus in a
position to apply different types of duties.14 They can calculate such duties in a number of different
manners without acting inconsistently with GATT 1994. 15 Further, as the Appellate Body
recognised, varying a duty is a common occurrence and a perfectly legal one at that.16

9. In India - Additional Import Duties , the panel noted that "the term 'ordinary' in the phrase
'ordinary customs duties' (…) is defined as meaning 'occurring in regular custom or practice;
normal, customary, usual' or 'of the usual kind, not singular or exceptional'".
17 Ordinary customs
duties are duties collected at the border which constitute customs duties stricto sensu; they do not
include possible extraordinary or exceptional duties collected in customs.18

10. One may distil from the case-law what features may or may not be seen as guiding criteria
on this matter. It is neither the form, nor "the fact that the duty is calculated on the basis of
exogenous factors, such as the interests of consumers or of domestic producers".
19 Indeed,

9 Appellate Body Reports, Canada – Renewable Energy and Canada – Feed-in Tariff Program,
para. 5.27.
10 Appellate Body Reports, Canada – Renewable Energy and Canada – Feed-in Tariff Program, paras.
5.39-45, and Appellate Body Report, China – Raw Materials, para. 321.
11 Yet, the Panel may need to analyse if the customs valuation respects the principles and methodology
provided for in the Customs Valuation Agreement, provided that this Agreement is applicable.
12 Appellate Body Report, US – Tuna II (Mexico), para. 405.
13 Appellate Body Report, Argentina – Textiles and Apparel, para. 55.
14 Id, paras. 46 and 54.
15 Some Members may express duties in a currency other than their own (e.g. commodities are typically
traded in US dollars) and thus the duty applied will depend on exchange rate fluctuations. Tariffs may also be
expressed as "technical tariffs" (i.e. based on contents of a certain ingredient such as alcohol or sugar). For
certain products (often agricultural products) duties may be seasonal. Duty exemptions can also be granted for
shortages in the importing country.
16 To provide a concrete example, it is perfectly legal for a WTO Member to review, from time-to-time,
an applied duty, and to adjust it in the light of market developments, if the Member stays within its bound
levels.
17 Panel Report, India - Additional Import Duties, para. 7.155.
18 Panel Report, Dominican Republic - Safeguard Measures, para. 7.85.
19 Panel Report, Dominican Republic - Safeguard Measures, para. 7.84. Appellate Body Report,
Chile - Price Band System, paras. 271-278.

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ordinary customs duties may take different forms. The Appellate Body clarified that it cannot be
conceived as a normative matter that scheduled duties are always ad valorem or specific. 20
Conversely, "not each and every duty that is calcul ated on the basis of the value and/or volume of
imports is necessarily an 'ordinary customs duty'". 21 In addition, it is worth recalling that ordinary
customs duties may also vary.22

11. A necessary but not sufficient criterion is the fa ct of associating the duty to the crossing of a
border.
23 However, "importation is not the only element to the determination as to whether a
charge falls within the scope of the first sentence of Article II:1(b) of the GATT 1994".24

12. One of the most important features of an ordinary customs duty is its transparency and
predictability. This will easily differentiate it from the other duties contemplated in footnote 1 to
the Agreement on Agriculture.
25 Thus, "the maximum amount of such duties can be more easily
reduced in future multilateral trade negotiations". 26 Therefore, a Member may not be entitled to
alter its customs duties in any manner whatsoever as long as it is within its tariff bindings.

13. Finally, the European Union notes that the ne gotiating history of Article II.1(b) shows that
the term "ordinary" was used to distinguish those tariffs which were maintained as part of a
Member's tariff legislation from "other duties or charges".
27 Thus, the tariff Schedule of the
Member concerned is relevant in this respect.

2. Other duties and charges

14. Article II:1(b), second sentence, of the GA TT 1994 provides also for the possibility of
scheduling "other duties and charges" which are no t ordinary customs duties. This is a residual
category, under which will fall charges which are neither ordinary customs duties nor one of the
three categories of duties specified in Article II:2 of the GATT 1994.
28

15. The other duties or charges shall be recorded in the Schedules at the levels applying on
15 April 1994.
29 The Panel would have thus to check if either the additional variable duty resulting
from the PBS was recorded for the specific products in the Schedule as to 15 April 1994 or if at
that date there was legislation in force in Peru mandatorily requiring it.

IV. CLAIMS
 RELATED TO THE AGREEMENT ON AGRICULTURE

16. Article 4.2 of the Agreement on Agriculture reflects the tariffication process undertaken
during the Uruguay Round. As a result, variable import levies disappeared. The tariffication
process essentially allowed the conversion of non-tariff barrier protection into the equivalent tariff
protection.

17. The key features of a variable import levy are the continuous and automatic variation, and
the lack of transparency and predictability.
30 For the first condition to be met it is necessary that
the levies change automatically and continuously, without further legislative or administrative
intervention.
31 Ordinary customs duties may also vary, but according to the Appellate Body it is
the build-in formula which will distinguish between the two categories.32

20 Appellate Body Report, Chile – Price Band System, para. 271.
21 Appellate Body Report, Chile – Price Band System, para. 274.
22 Appellate Body Report, Chile – Price Band System, para. 232.
23 Appellate Body Reports, China- Auto Parts, para. 153.
24 Panel Report, China- Auto Parts, footnote 316.
25 Appellate Body Report, Chile - Price Band System (Article 21.5 - Argentina), para. 156.
26 Appellate Body Report, Chile – Price Band System, para. 200.
27 Verbatim Report, Twenty Third Meeting of the Tariff Agreement Committee, 18 September 1947,
p. 24 (E/PC/T/TAC/PV/23).
28 Panel Report, Dominican Republic – Safeguard Measures, para. 7.79; Panel Report, Dominican
Republic - Import and Sale of Cigarettes, para. 7.113.
29 Para. 2 of the Article II:1(b) Understanding.
30 Appellate Body Report, Chile - Price Band System (Article 21.5 - Argentina), para. 158, Panel Report,
Chile - Price Band System (Article 21.5 - Argentina), para. 7.28.
31 Appellate Body Report, Chile - Price Band System, para. 233.
32 Appellate Body Report, Chile - Price Band System, para. 233.

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18. The second feature of a variable import levy is the lack of transparency and predictability. 33
In practice this translates into the impossibility fo r a trader to effectively anticipate the amount of
duties it would have to pay in order to have access to a certain market. 34 The European Union
considers that a particular attention should be attached to this second condition. It is indeed the
precise lack of transparency and predictability which affects traders and governments.35

19. In addition, the result which may be achieved by a variable import levy system is that the
measure distorts the transmission of declines in wo rld prices to the domestic market in a different
way than ordinary customs duties would do.
36 Ordinary customs duties, depending on the level of
binding, permit, at least potentially, price competition between imports and domestic products.
However, it is a feature of any tariff, whether specific or ad valorem, to soften the impact of, or
disconnect international prices from domestic markets. The extent of the softening or disconnect
varies from case to case. Decisive weight cannot be given to the distortion in the transmission of
declines in world prices to the domestic market.

20. A key characteristic of variable import levies is the fact that they generally prevent price
competition among all imports. The measures listed in footnote 1 to the Agreement on Agriculture
indeed all prevent price competition among either part or all imports.
37 They can thus be
distinguished from ordinary bound customs duti es, which depending on the level of binding,
permit, at least potentially, price competition among all imports.

V. TRANSPARENCY
 AND GOOD ADMINISTRATION CLAIMS

1. Article X:1 of the GATT 1994

21. Transparency is a cornerstone principle of the WTO system. The transparency obligation in
Article X:1 of the GATT aims at properly informing traders and governments about the conditions
upon which the interested parties may have access to a Member's market.

22. The obligation of publication refers to the acts of general application. These acts are "laws,
regulations, judicial decisions and administrative rulings that apply to a range of situations or
cases"
38, affecting "an unidentified number of economic operators, including domestic and foreign
producers".39 In order to comply with Article X:1 a certain level of detail is required, so as to
enable the interested parties to become "acquainted" with the measures.4041 However, this level of
detail refers rather to the "essential elements" of the measure.42

23. Finally, prompt publication means that the measures "must be generally available through
an appropriate medium rather than simply making them publicly available".
43 Thus, the
requirement of publication should be seen as more demanding that "making publicly available".44

2. Article X:3(a) of the GATT 1994

24. Article X:3(a) of the GATT 1994 concerns the method of application of the measures
identified in Article X:1. 45 The complainant has to bring "solid evidence" in order to prove the

33 Appellate Body Report, Chile - Price Band System, para. 234.
34 Appellate Body Report, Chile - Price Band System, para. 234.
35 Let us imagine that a Member changes its duties by legislative intervention every day, following
international reference prices. As long as these changes occur not as a result of the application of a formula,
the first condition may not be met. However, the second condition seems to be fulfilled.
36 Appellate Body Report, Chile - Price Band System (Article 21.5 - Argentina), para. 202, Appellate
Body Report, Chile - Price Band System, para. 227.
37 For instance, quantitative import restrictions and discretionary import licensing only allow price
competition among those products which can actually enter the domestic market. Minimum import prices
prevent imports at entering below a specific price, and thus prevent any price competition.
38 Panel Report, EC – IT Products, para. 7.1032.
40 Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.414.
41 Panel Report, Thailand – Cigarettes (Philippines), para. 7.789.
42 Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.405.
43 Panel Report, EC – IT Products, para. 7.1084
44 Panel Report, Chile – Price Band System, para. 7.127.
45 Panel Report, Argentina – Hides and Leather, para. 11.73.

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breach of this provision.46 The uniform, impartial and reasonable manner requirements are distinct
from each other and the violation of one of these cr iteria results in the breach of Article X:3(a) of
the GATT 1994.47

25. In assessing compliance with the "uniformity" requirement a panel may take into account
elements of the administrative process, on a case by case basis. 48 Members shall ensure that their
laws are applied consistently and predictably. 49 An "impartial" administration amounts to the
"application or implementation of the relevant laws and regulations in a fair, unbiased and
unprejudiced manner".50 There may be instances where a certain measure is so clearly flawed that
it would not require illustration with concrete examples in order to qualify it as unfair.51

26. The term "reasonable" is defined as '"in accord ance with reason", "not irrational or absurd",
"proportionate", "sensible", and "within the limits of reason, not greatly less or more than might be
thought likely or appropriate"'. 52 The examination of reasonableness requires the examination of
"the features of the administrative act at issue in the light of its objective, cause or the rationale
behind it".53 A previous panel has found that the fact of non-relying on the rules in force at the
time of the decision, disregarding them and in exchange using other methods amounted to an
unreasonable administration of the relevant legal provisions.54

VI. CLAIMS
 RELATED TO THE CUSTOMS VALUATION AGREEMENT

27. Article 15 of the Customs Valuation Agreement provides that the "customs value of imported
goods" means the value of goods for the purposes of levying ad valorem duties of customs on
imported goods. The European Union recalls that there are instances when the variable duty levied
in accordance with the PBS is only an ad valorem duty, namely in the hypothesis the international
reference price falls within the price band delimitated by the floor and ceiling prices. In the case
the international reference price drops below the floor price an additional duty is collected on top
of the ad valorem duty.

28. Indeed, the Customs Valuation Agreement does not apply in the case of specific customs
duties. It applies to the ad valorem duties (alone or in combination with specific duties) because in
that case the customs value is essential to determine the duty to be paid on an imported good. In
the present case the Panel will have first to decide to which extent the actual customs value
contributes to the determination of the amount of duties to be paid under the PBS. In this respect,
the European Union considers it relevant to examine the tariff Schedule of the Member concerned.

Customs Matters, paras. 224-225.
49 Panel Report, Argentina – Hides and Leather, para. 11.83.
50 Panel Report, Thailand - Cigarettes (Philippines), para. 7.899.
51 Panel Report, Thailand - Cigarettes (Philippines), para. 7.909.
52 Panel Report, Thailand - Cigarettes (Philippines), para. 7.919; Panel Report, Dominican Republic –
Import and Sale of Cigarettes, para. 7.385.
53 Panel Report, Thailand - Cigarettes (Philippines), para. 7.951.
54 Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.388.