WT/DS381/45  
 
6 December 2017  
(17-6701) Page: 1/4 
  Original: English   
 
UNITED  STATES – MEASURES CONCERNING THE IMPORTATION, 
MARKETING AND SALE O F TUNA AND TUNA PROD UCTS  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE UNITED STATES  
UNITED  STATES – MEASURES CONCERNING THE IMPOR TATION, 
MARKETING AND SALE O F TUNA AND TUNA PROD UCTS  
SECOND RECOURSE TO A RTICLE 21.5 OF THE D SU BY MEXICO  
NOTIFICATION OF AN A PPEAL BY MEXICO  UNDER ARTICLE 16.4 A ND ARTICLE 17  
OF THE UNDERSTANDING  ON RULES AND PROCEDU RES GOVERNING THE  
SETTLEMENT OF DISPUTE S (DSU), AND UNDER R ULE 20(1)  
OF THE WORKING PROCEDURES F OR APPELLATE REVIEW  
The following notification, dated 1 December 2017 , from the delegation of Mexico , is being  
circulated to Members.  
 
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1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (DSU) and Rule 20(1) of the Working Procedures for Appellate Review , 
the United Mexican States (Mexico) hereby notifies its decision to appeal to the Appellate Body 
certain issues of law and certain legal interpretations developed by the Panels in  United States - 
Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Recourse 
to Article 21.5 of the DSU by the United States  -- United States - Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products - Second recourse to article 21.5 of 
the DSU by Mexico  (Reports of the Panels).   
2. Mexico is restricting its appeal to those errors that it believes constitute serious errors of law 
and legal interpretation that need to be corrected. Where Mexico has not appealed an issue 
relating to the findings or the reasoning of the Panels, this does not signify agreement therewith or 
constitute any admission on the part of Mexico.  
3. Pursuant  to Rule 21(1) and 21(2) of the Working Procedures, Mexico is simultaneously filing 
this Notice of Appeal and its Appellant 's Submission with the Appellate Body Secretariat.  
4. The measure at issue in this dispute concerns the amended tuna measure, which comp rises 
the following elements  (referred to collectively as the "2016 tuna measure "): (i) Section 1385 
("Dolphin Protection Consumer Information Act ") (DPCIA), as contained in Subchapter II 
("Conservation and Protection of Marine Mammals ") of Chapter 31 ( "Marine Mammal Protection "), 
in Title 16 of the U.S. Code; (ii) U.S. Code of Federal Regulations, Title 50, Part 216, Subpart H 
("Dolphin Safe Tuna Labeling "), as amended in March 2016; and (iii) the court ruling in 
Earth  Island Institute v. Hogarth , 494 F. 3d 757 (9th Cir. 2007).  
5. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , this Notice of 
Appeal includes an indicative list of the paragraphs of the Panel Reports containing the alleged WT/DS381/45  
 
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  errors, without prejudice to Mexico 's ability to refer to other paragraphs of the Panel Report in the 
context of this appeal.  
I. The Panels Erred in their Interpretation of the Applicable Legal Analysis in the 
Second Step of the Assessment of "Treatment No Less Favourable " under 
Article  2.1 of th e TBT Agreement  
6. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse, 
the findings and conclusions of the Panels with respect to the interpretation and application of the 
legal analysis in the second step of the assessment of whether th e 2016 tuna measure accords 
"treatment no less favourable " to Mexican tuna products within the meaning of Article 2.1 of the 
Agreement on Technical Barriers to Trade (TBT Agreement).  
7. In determining whether the detrimental impact caused by the 2016 tuna mea sure stems 
exclusively from a legitimate regulatory distinction, the Panels made errors in interpreting and 
applying the analytical methodology for assessing whether the regulatory distinctions giving rise to 
the detrimental impact are designed and applied  in an even -handed manner. In particular, the 
Panels erred in: interpreting how the objectives pursued by the 2016 tuna measure are taken into 
account in the assessment of whether the relevant regulatory distinctions are "calibrated " to the 
overall relative risks to dolphins arising from different tuna fishing methods in different areas of 
the oceans, and failing to include an inquiry into the nexus between the relevant regulatory 
distinctions and the objectives of the measure, includ ing consideration of whether the differences 
in regulatory treatment, and the resulting detrimental impact, are disproportionate in the light of 
the objectives pursued; and in determining and comparatively analyzing the risk profile of the 
AIDCP -compliant dolphin encirclement fishing method in the ETP and risk profiles of the other 
fishing methods for the purposes of the "calibration " test. 
8. The Panels ' errors are based on erroneous findings on issues of law and legal interpretation, 
including the following:  
a. The findings and conclusions of the Panels with respect to the relevance and the 
consideration of the risks to dolphins associated with inaccurate labelling information, 
including in relation to the absence of sufficient regulatory oversight, the reliabil ity of 
reporting, the existence of illegal, unreported and unregulated ( IUU) fishing, and the 
existence of transshipment and catch consolidation at sea in different areas of the 
oceans . In particular, the Panels erred in finding that the risks to dolphins associated 
with inaccurate dolphin -safe labelling are not relevant to the determination and 
comparative analysis of the risk profiles of the different fishing methods in different 
areas of the oceans.1 
b. The findings and conclusions of the Panels in determin ing and comparatively analyzing 
the respective risk profiles (i.e., the overall relative risks or levels of harm to dolphins) of 
different fishing methods in different areas of the oceans. In particular, the Panels erred 
in drawing conclusions on risk prof iles relating to different fishing methods rather than 
risk profiles relating to different fisheries (i.e., different fishing methods in different 
areas of the oceans).2 
c. The findings and conclusions of the Panels relating to the standards and benchmarks 
used for determining and comparing the respective risk profiles. In particular, the Panels 
erred in primarily using a "per 1,000 set " standard to determine and compare risk 
profiles, rejecting the use of "Potential Biological Removal " (PBR) data or absolute levels 
of adverse effects to supplement the analysis, using a qualitative description of the 
characteristics of the AIDCP -compliant dolphin encirclement method for the purposes of 
determining its risk profile,  and using the risk profile of the AIDCP -compli ant dolphin 
encirclement fishing method in the ETP as the benchmark for the comparative analysis of 
                                                
1 The Panels’  errors in law are contained, inter alia , in paragraphs  7.102, 7.104 -7.105, 7.107 -7.127  
2 The Panels’  errors in law are contained, inter alia , in paragraphs  7.169 -7.170, 7.283 -7.285, 7.310, 
7.400 -7.402, 7.450, 7.457, 7.475, 7.481, 7.494, 7.511, 7.517 -7.525, 7.539, 7.541 -7.542, 7.571.  WT/DS381/45  
 
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  all risk profiles and the assessment of whether the tuna measure is "calibrated " to the 
different risk profiles.3 
II. The Panels Erred in their Findings whe n Assessing whether the Relevant 
Regulatory Distinctions in the Labelling Conditions of the 2016 Tuna Measure are 
Consistent with Article 2.1 of the TBT Agreement on the Basis that they are 
"Calibrated " to the Different Risk Profiles  
9. Mexico seeks review by  the Appellate Body of, and requests the Appellate Body to reverse, 
the findings and conclusions of the Panels that the 2016 tuna mea sure is consistent with 
Article  2.1 of the TBT Agreement on the basis that the relevant regulatory distinctions in the 
labelling conditions are "calibrated " to the different risk profiles. The Panels ' findings and 
conclusions are in error and based on incorrect findings of law and legal interpretations, including 
the following:  
a. The findings and conclusion of the Panels with re spect to the eligibility criteria in 
assessing the consistency of the 2016 tuna measure with Article 2.1 of the 
TBT Agreement. In particular, the Panels erred in finding that the eligibility criteria are 
"calibrated " to the overall relative risks to dolphi ns arising from different fishing methods 
in different ocean areas.4 
b. The findings  and conclusion of the Panels with respect to the certification criteria in 
assessing the consistency of the 2016 tuna meas ure with Article 2.1 of the 
TBT Agreement. In partic ular, the Panels erred in finding that the certification criteria are 
"calibrated " to the overall relative risks to dolphins arising from different fishing methods 
in different ocean areas.5  
c. The findings  and conclusion of the Panels with respect to the tr acking and verification 
criteria in assessing the consistency of the 2016 tuna meas ure with Article 2.1 of the 
TBT Agreement. In particular, the Panels erred in finding that the certification criteria are 
"calibrated " to the overall relative risks to dolph ins arising from different fishing methods 
in different ocean areas.6 Mexico also requests the Appellate Body to find that the Panels 
failed to make an objective assessment of the facts, as required by Article 11 of the 
DSU, with respect to their findings and conclusion regarding the tracking and verification 
criteria. In particular, the Panels erred in expressly refusing to give any consideration to 
evidence adduced by Mexico that was directly relevant and material to the outcome of 
the legal analysis.7 
d. The findings and conclusions of the Panels with respect to the "overall assessment of the 
consistency of the 2016 tuna measure with Article 2.1 of the TBT Agreement ". In 
particular, the Panels erred in finding that the 2016 tuna measure, as a whole, is 
"calibrated " to the risks to dolphins arising from the use of different fishing methods in 
different areas of the ocean.8 
III. The Panels Erred in their Findings when Assessing whether the 2016 Tuna Measure 
is Consistent with the Chapeau of Article XX of the GATT 1994  
10. Mexico also seeks review by the Appellate Body of, and requests the Appellate Body to 
reverse, the findings and conclusions of the Panels that the 2016 tuna measure, although 
inconsistent with Articles I:1 and III:4 of the GATT 1994, is exempt fr om those obligations on the 
basis that it is justified under Article XX of the GATT 1994.  This conclusion is an error and is based 
on erroneous findings on issues on law and legal interpretation.9 Mexico requests that the 
                                                
3 The Panels’  errors in law are contained, inter alia , in paragraphs  7.169 -7.170 , 7.185 -7.186, 7.188 -
7.192, 7.195, 7.204 -7.206, 7.211 -7.214, 7.279 -7.280, 7.281, 7.285, 7.329 , 7.339, 7.345, 7.336, 7.373 -
7.374, 7.384 -7.385, 7.89 -7.90, 7.397 -7.398, 7.419 -7.420, 7.469 -7.471,  7.473-7.475, 7.518 -7.524 . 
4 The Panels’  errors in law are contained, inter alia , in paragraphs 7.539 -7.547.  
5 The Panels’  errors in law are contained, inter alia , in paragraphs 7.571 -7.573, 7.600 -7.611.  
6 The Panels’  errors in law are contained, inter alia , in paragraphs 7.650, 7.652, 7.671 -7.676.  
7 The Panels’  errors in law are contained, inter alia , in paragraphs 6.57 and 7.656.  
8 The Panels’  errors in law are contained, inter alia , in para graphs 7.703 -7.717, 8.2, 8.6.  
9 The Panels’  errors in law are contained , inter alia , in paragraphs  7.739 -7.740, 8.3, 8.7 . WT/DS381/45  
 
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  Appellate Body modify the reasonin g of the Panel and find that the 2016 tuna measure is applied 
in manner that constitutes arbitrary and unjustifiable discrimination between countries where the 
same conditions prevail.  
IV. The Panels Erred in their Finding that they had the Authority to Co nduct a Partially 
Open Meeting  
11. Mexico also seeks review by the Appellate Body of, and requests the Appellate Body to 
reverse, the findings and conclusion of the Panels that they had the authority to conduct a partially 
open meeting of the parties without t he consent of both Parties.  
12. Pursuant  to Rule 20(2)(c) of the Working Procedures for Appellate Review , the service 
address, telephone and facsimile numbers for Mexico are:   
 The Permanent Mission of Mexico to the WTO  
 Chemin Louis Dunant 15,  
 CH-1202 Gen eva  
 Switzerland  
 Telephone number:  + 41 22 748 0762, + 41 22 748 0739, + 41 22 748 0748  
 Facsimile number:  + 41 22 748 0749  
 
13. Mexico  is providing a copy of this Notice of Appeal directly to the United States and to the 
third participants . 
 
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