  
  
WT/DS524/5  
3 June 2020 
(20-3972) Page: 1/4 
 Original:  Spanish  
 
  
COSTA RICA – MEASURE S CONCERNING THE IMP ORTATION OF  
FRESH AVOCADOS FROM MEXICO  
AGREED PROCEDURES FO R ARBITRATION UNDER ARTICLE  25 OF THE DS U 
The following communication  dated 2 9 May 2020, from the delegation of Mexico and the delegation 
of Costa Rica to the Chairperson of the Dispute Settlement Body, is circulated at the request of these 
delegations.  
 
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Mexico and Costa Rica have notified the Panel in Costa Rica – Measures Concerning the Importation 
of Fresh Avo cados from Mexico (DS524) that both parties have agreed on Procedures for Arbitration 
under Article 25 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(DSU). 
 
In light of the above , and pursuant to Article 25.2 of the  DSU, Costa Rica and Mexico hereby notify 
the Dispute Settlement Body that they have agreed on the attached Procedures for Arbitration  under  
Article 25 of the DSU in the above -mentioned dispute . 
 
Mexico and Costa Rica jointly request that all Members be notifi ed through the circulation of these 
Procedures for Arbitration in the DS document series for this dispute . 
 
 
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  WT/DS524/5  
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  AGREED PROCEDURES FOR ARBITRATION UNDER  
ARTICLE 25 OF THE DSU IN  
COSTA RICA – MEASURES CONCERNING THE IMPORTATION OF  
FRESH AVOCADOS FROM MEXICO  (DS524 ) 
 
 
1. In order to give effect to communication JOB/DSB/1/Add.12 in this dispute, Mexico and 
Costa  Rica (hereafter the "parties") mutually agree pursuant to Article 25.2 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU) to enter into arbitration under 
Article  25 of the DSU to decide any appeal from any final panel report1 as issued to the parties in 
Costa  Rica – Measures Concerning the Importation of Fresh Avocados from Mexico  (DS524) . Any 
party to the dispute may initiate arbitration in accordance with these agreed procedures . 
2. The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in this 
dispute under Article s 16.4 and 17 of the DSU . For the pu rposes of these agreed procedures, such 
situation is deemed to arise where, on the date of issuance of the final panel report to the parties, 
there are fewer than three Appellate Body members . For greater certainty, if the Appellate Body is 
able to hear ap peals at the date on which the final panel report is issued to the parties, a party may 
not initiate an arbitration, and the parties shall be free to consider an appeal under Articles 16.4 and 
17 of the DSU.  
3. In order to facilitate the proper administration  of arbitration under these agreed procedures, 
the parties hereby jointly request the panel to notify the parties of the anticipated date of circulation 
of the final panel report within the meaning of Article 16 of the DSU, no later than 45 days in advance  
of that date.  
4. Following the issuance of the final panel report to the parties, but no later than 10 days prior 
to the anticipated date of circulation of the final panel report to the rest of the membership, any 
party may request that the panel suspend the  panel proceedings with a view to initiating the 
arbitration under these agreed procedures . Such request by any party is deemed to constitute a 
joint request by the parties for suspension of the panel proceedings for 12 months pursuant to 
Article  12.12 of the DSU . 
The parties hereby jointly request the panel to provide for the following, before the suspension takes 
effect:  
i. the lifting of confidentiality with respect of the final panel report under the Working  
Procedures of the panel ; 
ii. the transmissi on of the panel record to the arbitrators upon the filing of the Notice of 
Appeal : Rule 25 of the Working Procedures for Appellate Review shall apply 
mutatis  mutandis ; 
iii. the transmission of the final panel report in the working languages of the WTO to the 
parties and to the third parties .2 
Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the 
panel proceedings . 
 
5. The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no 
later than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has 
taken effect . The Notice of Appeal shall include the final panel report in the working languages of 
the WTO . The Notice of Appeal shall be simultaneously notified to the o ther party or parties and to 
the third parties in the panel proceedings . Rules 20 -23 of the Working Procedures for Appellate  
Review shall apply mutatis mutandis . 
6. Subject to paragraph 2, where the arbitration has not been initiated under these agreed 
proced ures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to 
 
1 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to 
Article  21.5 of the DSU.  
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article 16 of the DSU.  WT/DS524/5  
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  Articles  16.4 and 17 of the DSU, with a view to its adoption by the DSB . If the panel proceedings 
have been suspended in accordance with paragraph 4, but no Notice of Appeal has been filed in 
accordance with paragraph 5, the parties hereby jointly request the panel to resume the panel 
proceedings . 
7. The arbitrators shall be 3 persons selected from the pool of 10 standing appeal arbitrators 
composed in accordance  with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the "pool 
of arbitrators") .3 The selection from the pool of arbitrators will be done on the basis of the same 
principles and methods that apply to form a division of the Appellate Body under Ar ticle 17.1 of the 
DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of 
rotation .4 The WTO Director -General will notify the parties and third parties of the results of the 
selection . The arbitrators shall elect a Chai rperson . Rule 3(2) of the Working Procedure for 
Appellate  Review shall apply, mutatis mutandis , to the decision -making by the arbitrators . 
8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in this dispute, 
the arbitrators may  discuss  their decisions relating to the appeal with all of the other members of 
the pool of arbitrators, without prejudice to the exclusive responsibility and freedom of the 
arbitrators with respect to such decisions and their quality . All members of the pool of arbitrators 
shall receive any document relating to the appeal . 
9. An appeal shall be limited to issues of law covered by the panel report and legal interpretations 
developed by the panel . The arbitrators may uphold, modify or reverse the legal findings and 
conclusions of the panel . Where applicable, the arbitration award shall include recommendations, as 
envisaged in Article 19 of the DSU . The findings of the panel which have not been appealed shall be 
deemed to form an integral part of the arbitration award t ogether with the arbitrators' own findings . 
10. The arbitrators shall only address those issues that are necessary for the resolution of the 
dispute . They shall address only those issues that have been raised by the parties, without prejudice 
to their obligati on to rule on jurisdictional issues . 
11. Unless otherwise provided for in these agreed procedures, the arbitration shall be governed, 
mutatis  mutandis , by the provisions of the DSU and other rules and procedures applicable to 
Appellate Review . This includes in particular the Working Procedures for Appellate Review and the 
timetable for appeals provided for therein as well as the Rules of Conduct .5 The arbitrators may 
adapt the Working Procedures for Appellate Review and the timetable for appeals prov ided for 
therein, where justified under Rule 16 of the Working Procedures for Appellate Review, after 
consulting the parties . The arbitrators shall send advance written questions on the issues  that are 
set to be raised  at the meeting or meetings with the p arties . The arbitrators may pose additional 
questions at the meeting . 
12. The parties request the arbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal . To that end, the arbitrators may take appropriate organizational measures to 
streamline the proceedings, without prejudice to the procedural rights and obligations of the parties 
and due process . Such measures may include decisions on page limits, time -limits and deadlines as 
well as on the length and num ber of hearings required . 
13. If necessary,  in order to issue the award within the 90 day time -period, the arbitrators may 
also propose substantive measures to the parties, such as an exclusion of claims based on the 
alleged lack of an objective assessment of the facts pursuant to Article 11 of the DSU .6 
 
3 If the pool of arbitrators has not been composed, footnote 1 to paragraph 4 of communication 
JOB/DSB/1/Add.12 shall apply.  
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a participating Member shall be excluded from the selection process. Two nationals of the same 
Member shall not serve on the same case.  
5 For greater certainty, paragraphs 14 -17 of t he Rules of Conduct shall apply to arbitrators.  
6 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party 
concerned to agree with the proposed substantive measures. The fact that the party concerned does  not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the 
parties.  WT/DS524/5  
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  14. On a proposal from the arbitrators, the parties may agree to extend the 90 -day time -period 
for the issuance of the award . 
15. The parties agree to abide by the arbitration award, which shall be final . Pursuant to 
Article  25.3 of the DSU, the award shall be notified to, but not adopted by, the DSB and to the 
Council or Committee of any relevant agreement . 
16. Only parties to the dispute, not third parties, may initiate the arbitration . Third parties which 
have notified the DSB of a substantial interest in the matter before the panel pursuant to Article  10.2 
of the DSU may make written submissions to, and shall be given an opportunity to be heard by, the 
arbitrators . Rule 24 of the Working Procedures for Appell ate Review shall apply mutatis mutandis . 
17. Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis  mutandis  
to the arbitration award issued in this dispute . For greater clarity, any reference to the "date of 
adoption" in Articl es 21 and 22 of the DSU shall be taken to mean the "date of notification" of the 
arbitration award to the DSB . 
18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal, 
or other appeal, by notifying the arbitrators . This notification shall also be notified to the panel and 
third parties, at the same time as the notification to the arbitrators . If no other appeal or appeal 
remains, the notification shall be deemed to constitute a joint request by the parties to resume pa nel 
proceedings under Article 12.12 of the DSU .7 If an other appeal or appeal remains at the time an 
appeal or other appeal is withdrawn, the arbitration shall continue . 
19. The parties shall jointly notify these agreed procedures to the panel in Costa Rica – Measures 
Concerning the Importation of Fresh Avocados from Mexico  (DS524) and ask the panel to grant, 
where applicable, the joint requests formulated in paragraphs 3, 4, 6, and 18 .8 
 
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7 If the authority of the panel has lapsed pursuant to Article 12.12 of the DSU, the arbitrators shall issue 
an award that inc orporates the findings and conclusions of the panel in their entirety.  
8 For greater certainty, should any of these requests not be granted by the panel, the parties will agree 
on alternative procedural modalities to preserve the effects of the relevant provisions of these agreed 
procedures.  