WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/317 
31 July 2012  
 
(12-4168) 
Dispute Settlement Body 
13 June 2012  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 13 June 2012 
 
Chairman:  Mr. Shahid Bashir (Pakistan) 
 
 
1. United States – Measures concerning the import ation, marketing and sale of tuna and 
tuna products  
(a) Report of the Appellate Body (WT/DS381/AB /R) and Report of the Panel (WT/DS381/R) 
1. The Chairman drew attention to the communi cation from the Appellate Body contained in 
document WT/DS381/14 and Corr.1 transmitting the A ppellate Body Report on:  "United States – 
Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna  Products", which had 
been circulated on 16 May 2012 in document WT /DS381/AB/R, in accordance with Article 17.5 of 
the DSU.  He reminded delegations  that the Appellate Body Report and the Panel Report pertaining to 
this dispute had been circulated as unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body repor t shall be adopted by the DSB and unconditionally 
accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate 
Body report within 30 days following its circulation to Members.  This adoption procedure is without 
prejudice to the right of Members to express their views on an Appellate Body report".    
2. The representative of Mexico said that his country thanked the members of the Appellate 
Body, the Panel and the respective Secr etariats for their work in this di spute.  Mexico also thanked the 
third parties and third participants for participating in the proceedings.  Many of them shared Mexico's 
views.  The Reports were of special relevance to Members since they provided an interpretation of the 
TBT Agreement, which would help Members to be tter understand the obligations contained in that 
Agreement.  It was widely accepted that the prot ection of marine mammals, including dolphins and 
whales, was an important objective of society.  In the past, the United States had played a key role in 
fostering measures to protect some of these marine mammals from the risks associated with fishing.  
Mexico recognized that the WTO did not prohibi t Members from adopting measures or technical 
regulations to pursue a legitimate objective, such  as the protection of human and animal life and 
health, provided such measures were consistent wi th WTO rules.  The recent history of protecting 
dolphins during tuna fishing in the Eastern Tropi cal Pacific Ocean (ETP) under the Agreement on the 
International  Dolphin Conservation Programme (AIDCP), to which the Members in this dispute were 
party, showed that US efforts in this regard we re obsolete and counter-productive.  It was high time 
for the United States to reassess and ad just its policies in this area.  
3. The central issue in this dispute brought by Mexico was the fact that the United States 
prohibited the use of an AIDCP-endorsed "dolphin-saf e" label for tuna imports from Mexico, despite 
authorizing the use of a "dolphin-safe" label fo r tuna products from the United States and third 
countries.  Thus, the adoption of the Panel Report, as modified by the Appellate Body Report, was WT/DSB/M/317 
Page 2  
 
  important for Mexico and for the strengthening of the multilateral trading system, for several reasons.  
The Reports would help to eliminate the stigma ag ainst the fishing methods used by Mexico, since 
those methods, being internationally regulated, ha d as their primary objective the effective protection 
of dolphins during tuna fishing operations.  The Reports also highlighted that, in reality, US consumers had no access to labelling that provided information on the risks to dolphins arising from 
different fishing techniques in different areas of the ocean, and yet the United States allowed the use 
of a "dolphin-safe" label in such cases.  More sp ecifically, the Reports revealed that the tuna 
consumed in the United States labelled "dolphin -safe" did not provide consumers with true 
information on the risks and harm caused to these mammals, despite the use of this label. 
4. From a legal point of view, the Panel and Appe llate Body Reports were relevant as they had 
correctly considered the "dolphin-safe" labelling measu re to constitute a "technical regulation" within 
the meaning of the TBT Agreement.  Moreover, Me xico welcomed the Appellate Body's conclusion 
to reverse the Panel's finding and determine that  the US measures were inconsistent with the 
obligation set forth in Article 2.1 of the TBT Ag reement, since they modified the conditions of 
competition in the US market to the detriment of tuna products from Mexico.  Before looking more 
closely at the Appellate Body's legal determina tions, it was important to emphasize certain factual 
findings that had not been reversed by the A ppellate Body, which clearly showed how the US 
measures were not duly calibrated in relation to the risks to dolphins associated with tuna fishing in 
other zones and using other methods.  Various findings  of fact highlighted the uneven-handed nature 
of the measures imposed by the United States.  
5. The following findings were of particular importa nce to underline.  It was demonstrated that 
the observable and unobservable adverse effects on dolphins occurred in ocean areas other than the 
ETP, and as a result of the use of fishing meth ods other than setting on dolphins, and that the 
United States had not only failed to take steps to  address these adverse effects, but allowed tuna 
products from these geographical areas (over 90 per cen t of its imports) to carry the "dolphin-safe" 
label even when dolphins had been harm ed or killed during fishing operations.
1  The risks to dolphins 
arising from the use of other fishing methods outside the ETP were not lower or insignificant, as the 
United States had tried to claim in this dispute.  Th e Panel had stated that:  "there are clear indications 
that the use of certain tuna fishing techniques ot her than setting on dolphins may also cause harm to 
dolphins".  This finding had not been reversed by the Appellate Body.  In contrast, within the ETP, 
the Panel had recognized that dolphin mortality and injury had fallen to 0.1 per cent under the 
controlled conditions of the AIDCP.  This finding had not been modified on appeal.   
6. With regard to the definition of technical re gulation, Mexico welcomed the Panel's and the 
Appellate Body's findings that characterized the meas ure at issue as a "technical regulation" under the 
TBT Agreement.  This was the first time that the Appellate Body had elaborated upon the scope of the 
definition of "technical regulation" found in the TBT Agreement.2  The United States had very 
simplistically argued during the Panel proceedings  and appeal that its "dolphin-safe" labelling 
measures did not constitute a "technical regulation" for the purposes of the TBT Agreement, and had 
submitted that "compliance with a la belling requirement is 'mandatory'…  if there is a requirement to 
use a particular label in order to pl ace a product for sale on the market…".3  The Appellate Body had 
correctly concluded that the language of the TBT Agreement did not indicate that a labelling 
requirement was "mandatory" only if there was a requi rement to use a particular label in order to 
place a product for sale on the market.  For the Appe llate Body, a fundamental issue in its analysis 
                                                      
1 Report of the Appellate Body, para. 247. 
2 The Appellate Body effectively recognized that "…a panel's determination of whether a particular 
measure constitutes a technical regulation must be made in  the light of the characteris tics of the measure at issue 
and the circumstances of the case.  In some cases, this may be a relatively straightforward exercise.  In others, 
the task of the panel may be more complex…".  Report by the Appellate Body, para. 188. 
3 Idem.  WT/DSB/M/317 
 Page 3 
 
 
  had been the fact that the US measures established a single definition of "dolphin-safe" and penalized 
any statement on a tuna product regarding dolphin protection where the conditions of these measures 
were not met.4  Mexico believed that the Appellate Body 's conclusions regarding the definition of 
"technical regulation" were consiste nt with and respected the text of  the TBT Agreement, and in no 
way threatened the fundamental difference between a "technical regulation" and a "standard".  Nor 
did they confuse the term "requireme nt" with the term "mandatory".   
7. With regard to Article 2.1 of the TBT Agreem ent on non-discrimination, Mexico considered 
the Appellate Body's findings relating to the interpretation of the phrase "treatment no less 
favourable" in Article 2.1 of the TBT Agreement to be  appropriate.  On the basis of the Report in "US 
- Clove Cigarettes", the Appellate Body had determined that the correct way to analyse whether the 
measure was inconsistent with Article 2.1 was to determine whether it modified the conditions of 
competition in the relevant market to the detriment of the group of imported products vis-à-vis  the 
group of like domestic products or like products import ed from any other country.  In conducting this 
analysis, the Appellate Body had made a number of important determinations.  First, it had confirmed 
that "the lack of access to the 'dolphin-safe' label of  tuna products containing tuna caught by setting on 
dolphins has a detrimental impact on the competitiv e opportunities of Mexican tuna products in the 
US market."5  Second, it had clarified the extent of "government intervention" in the modification of 
the conditions under which domestic and imported lik e products competed in  a Member's market, 
highlighting that it was the US measures that established the conditions for the use of a "dolphin-safe" label on tuna products.   
8. The Appellate Body had further stated that to determine whether Article 2.1 had been 
violated, it was necessary to analyse whether the ex istence of the detrimental impact reflected the 
existence of discrimination.  It was, therefore, necessary to analyse in detail whether the detrimental 
impact on imports stemmed exclusively from a leg itimate regulatory distinction.  For this, it was 
necessary to analyse whether the measure was even-handed.
6  In this specific case, the Appellate 
Body had analysed whether the United States had ma naged to demonstrate that the difference in the 
"dolphin-safe" labelling conditions relating to diffe rent fishing methods and different areas of the 
ocean had been a legitimate regulatory distinction, and hence whether the detrimental impact of the 
measure had stemmed exclusively from this dis tinction rather than reflecting discrimination.7  In this 
regard, the Appellate Body had carefully analysed th e Panel's findings appealed by the United States 
under Article 11 of the DSU, and had concluded that the Panel had acted consistently with its duties, 
which was why the Panel's factual findings that fi shing methods other than setting on dolphins posed 
a risk to and inflicted harm on these animals were maintained.  The Appellate Body had, therefore, 
reversed the Panel's findings and had correctly de termined that the US me asure afforded Mexican 
tuna products "less favourable treatment" than that  afforded to like products from the United States 
and other countries and that it was, therefore, inc onsistent with Article 2.1 of the TBT Agreement.  
9. With regard to Article 2.2 of the TBT Agreement,  in Mexico's view, the Panel had correctly 
concluded that there was a less trade-restrictiv e alternative for the objectives pursued by the 
United States, which entailed allowing the coexisten ce of the US and AIDCP "dolphin-safe" labels.  
For this reason, Mexico did not agree with the Appell ate Body's reversal of this conclusion.  Nor did 
Mexico agree with the Appellate Body's reversal  of the Panel's finding in determining that the 
                                                      
4 In this respect, the Appellate Body stated that "I n doing so, the US measure prescribes in a broad and 
exhaustive manner the conditions that apply for making any assertion on a tuna product as to its  
"dolphin-safety", regardless of the manner in which that statement is made".  Report of the Appellate Body, 
para. 199. 
5 Report of the Appellate Body, para. 235. 
6 Report of the Appellate Body, para. 215. 
7 Report of the Appellate Body, para. 284. WT/DSB/M/317 
Page 4  
 
  measure at issue was not more trade-restrictive th an necessary to fulfil its legitimate objectives, as 
"the US measure did fulfil the United States' objectives to a certain extent".
8   
10. In accordance with the Appellate Body's analys is, the following elements must be assessed in 
order to determine a violation of Article 2.2 of the TBT Agreement:  (i) "Legitimate objective":  it 
was necessary to determine what a Member was trying to achieve by adopting a technical regulation 
and to conduct an independent and objective ass essment of the legitimate objective pursued;  
(ii) "Fulfil":  the analysis appeared to indicate that although the degree of contribution that the measure made to the legitimate objective was rele vant, a significant contribution to the achievement 
of that objective was not necessary;  (iii) "Unnecessar y obstacles to international trade" and "shall not 
be more trade-restrictive than necessary":  the next  step must be to analyse "necessity".  This term 
"involves a relational analysis of the trade-restric tiveness of the technical regulation, the degree of 
contribution that it makes to the achievement of a legitimate objective, and the risks non-fulfilment 
would create"
9;  (iv) "Comparative analysis" and "the risks non-fulfilment would create":  the 
trade-restrictiveness and the degree of achievement of  the objective by the measure at issue must be 
compared with that of possible alternative meas ures that may be reasonably available and less 
trade-restrictive.  The nature of the risks at issu e and the gravity of the consequences that would arise 
from non-fulfilment of the legitimate objective must also be considered.10  Under this analysis, a less 
trade-restrictive and reasonably available alternativ e measure may be taken into account only when it 
at least contributed to the legitimate objective equi valent to that of the measure at issue, taking 
account of the risks non-fulfilment would create.  In Mexico's view, a measure that contributed 
minimally or insignificantly to the fulfilment of its supposed objective created unnecessary barriers to 
trade.  In Mexico's view, the complexity of this  analysis may result in a Member establishing its 
legitimate objectives so specifically that they coul d only be fulfilled with the technical regulation 
adopted by the Member in question, leaving no r oom for any other less restrictive and reasonably 
available alternative measure.  This technical re gulation may then be considered WTO-consistent, 
even when its contribution to the fulfilment of the legitimate objectives was minimal or insignificant.   
11. With regard to the Appellate Body's de termination regarding Article 2.4 of the 
TBT Agreement, Mexico wished to emphasize that  there was no doubt that the United States was a 
founding Member of the AIDCP and that it had partic ipated actively in the creation and establishment 
of the "dolphin-safe" label within that forum.  Th e creation of the AIDCP "dolphin-safe" standard had 
been in the pipeline since the Panama Declaration, the objective of which was to ensure access to the 
US market for tuna products when this fish wa s caught in accordance with internationally agreed 
"dolphin-safe" guidelines.  It was clear that fo r the United States, this standard and the AIDCP 
organization must be consid ered relevant to its technical regulati on.  Curiously, this standard had been 
relevant to US measures when the United States ha d tried to amend its legislation and allow the 
AIDCP "dolphin-safe" label.  Mexico hoped that th e United States would promptly comply with the 
DSB's recommendations and that the measures taken to  comply would be consistent with the covered 
agreements and lead to the settlement of this dispute. 
12. The representative of the United States said that  his country would like to thank the members 
of the Appellate Body, the Panel and the Secretaria t assisting them for their work on this dispute.  
This dispute involved US measures – particularly the Dolphin Protection Consumer Information Act 
and associated regulations – that established th e conditions under which producers may choose to 
label tuna products as dolphin safe.  Under these measu res, producers were not allowed to claim that 
their tuna product was dolphin safe if the tuna had been caught by "setting on dolphins".  The 
United States said that setting on dolphins was a fish ing practice that involved intentionally chasing, 
encircling, and deploying purse seine nets on dolphins  in order to catch tuna that frequently swam 
                                                      
8 Report of the Appellate Body, para. 341. 
9 Report of the Appellate Body, para. 318. 
10 Report of the Appellate Body, para. 321.  WT/DSB/M/317 
 Page 5 
 
 
  below dolphins.  As the Panel had found, setting on dolphins was not dolphin safe since it resulted in 
death and serious injury to dolphins.11  Unlike other fishing operations that had moved away from 
setting on dolphins, most large Mexican tuna fishin g vessels continued to engage in this fishing 
practice.  Nevertheless, Mexican tuna products ma y be sold in the United States.  The measures 
simply sought to ensure that an y claims that tuna products were dolphin safe – whether from Mexico, 
the United States, or anywhere else − were accurate and not made when the tuna was caught in a way 
that adversely affected dolphins.  This dispute had raised a number of new, significant issues.  The United States was pleased that the Appellate Body had reversed the Panel's conclusion that the US 
measures were "more trade restrictive than necessar y" under Article 2.2 of the TBT Agreement.  The 
United States was particularly pleased that the Pa nel and the Appellate Body had agreed with the 
United States that the legitimate objectives of the me asures were:  (i) to "ensur[e] that consumers are 
not misled or deceived about whether tuna products  contain tuna that was caught in a manner that 
adversely affects dolphins", and (ii) to "contribut[e] to the protection of dolphins, by ensuring that the 
US market is not used to encour age fishing fleets to catch tuna in  a manner that adversely affects 
dolphins".
12  The United States agreed with the Appellate Body that the alternative measure put forth 
by Mexico based on the Agreement on the Intern ational Dolphin Conservation Program (AIDCP) 
would not fulfill these objectives.  Notably, the Appellate Body had accepted that some technical 
regulations could and would involve restrictions on trade.  In reviewing those measures, the issue was 
whether the measures pursued a legitimate objective in  a way that was no more trade restrictive than 
necessary.  The United States agreed with the Appell ate Body's analysis and appreciated confirmation 
that US measures were not unnecessary obstacles to  trade.  The United States said that it also 
appreciated the Appellate Body's confirmation th at the AIDCP had not established international 
standards on dolphin safe labeling within the mean ing of Article 2.4 of the TBT Agreement.  
13. The United States was, however, disappointed by  the Appellate Body's interpretation of 
technical regulations and standards as those terms were set out in the TBT Agreement.  As the Appellate Body had noted, both standards and tec hnical regulations could contain conditions that 
must be met to use a label, and those conditions c ould be "compulsory", "bi nding", and "enforceable".  
The United States agreed.  The United States did not understand, however, why the Appellate Body 
believed that the factors it had relied on to determin e whether a measure was a technical regulation or 
standard in fact distinguished those types of TBT measures.  Indeed, the Appellate Body's reliance on 
the concept of "covering the field" or "single set of requirements" was fundamentally at odds with the goal stated in the TBT Agreement of harmonizing st andards on as wide a basis as possible.  By their 
nature, standards sought convergen ce around one particular set of requirements.  Instead, in the 
context of labeling, the proper distinction between a technical regulation and a standard was whether 
compliance with the measure was mandatory such th at a producer must label its product.  If labeling 
was voluntary in that a producer need not label its  product, then the measure in question was a 
standard.   
14. With respect to Article 2.1 of the TBT Ag reement, the United States agreed that a 
determination of whether imported products were accorded less  favorable treatment called for an 
analysis of whether the measure at issue modified  the conditions of competition to the detriment of 
imported products.  The United Stat es believed, however, that the Appe llate Body had misapplied this 
concept.  Particularly concerning was that the Appell ate Body had ignored the fact that at the time the 
measures were adopted, Mexican and US tuna product producers were in the exact same situation.  
Both fished the same ocean for tuna and both set on dolphins.
13  Any adverse effects that accrued to 
Mexican tuna products vis-à-vis  those of the United States had resulted from the private choices 
individual producers made:  producers from the United States and other Members had chosen to adapt 
their practices to meet the conditions for use of the dolphin safe label;  producers from Mexico had 
                                                      
11 Panel Report, paras. 7.438, 7.493, 7.504, 7.738.  
12 Panel Report, paras. 7.413, 7.425, 7.444;  Appellate Body Report, para. 325.  
13 Panel Report, para. 7.320.  WT/DSB/M/317 
Page 6  
 
  chosen not to.  This did not constitute an "adve rse impact on competitive opportunities".  Article 2.1 
of the TBT Agreement was a guarantee that technical regulations would not be applied in a way that 
afforded protection to domestic producers.  Ar ticle 2.1 was not a guarantee that producers who 
decided not to meet the conditions for a label would be in the same position as producers who chose 
to meet those conditions.  The Panel's analysis in  this regard was correct and the United States 
commended it to Members.
14 
15. Having determined that Mexican tuna producers were disadvantaged by not being able to 
claim that their tuna products were dolphin safe, th e Appellate Body then had considered whether this 
was the result of discrimination.  Strikingly, the Appellate Body had not pl aced the burden of showing 
discrimination on the complainant;  rather, the Appe llate Body found that the respondent must show 
that its measures were not discriminatory b ecause they were based on "legitimate regulatory 
distinctions".  In this light, the Appellate Body ha d reviewed the Panel's assessment of whether the US 
measures were properly "calibrated" to reflect ri sks to dolphins resulting from different fishing 
conditions and environmental factors across the worl d's oceans and found the evidence on the record 
did not justify the distinctions drawn by the measure s.  Thus, even though the difference in treatment 
of Mexican tuna products had been incidental to their origin, the Appellate Body had considered the 
measure discriminatory.  This raised a number of  significant concerns.  Panels may now need to 
review the calibration of the measure to risk, cost, and benefit, even if in the end the difference in 
treatment was not related to origin.  Members had now here agreed that panels or the Appellate Body 
should conduct such an inquiry.  Nor were panels and the Appellate Body equipped to conduct such 
an inquiry and second-guess the myriad regulatory issu es involved.  Indeed, in this case, the Panel 
faced a complex scientific record that, it had felt compelled to note, involved an area "in which the 
collection and analysis of information is inherently difficult".15  A preferable approach to reviewing 
national treatment claims under Article 2.1 would be  a return to determining whether a measure at 
issue accorded less favorable treatment that was related to the origin of the product.  In this regard, the 
United States recalled that when, before a GATT pane l, Mexico had brought similar claims against 
US dolphin safe labeling provisions under the almost  identically worded provision of the GATT 1947, 
the Panel had rejected those claims.   
16. The United States was also disturbed by the Appellate Body's finding that WTO committee 
decisions could be subsequent agreements that mu st be "read into" the covered agreements.  The 
United States did not believe that Members had cons idered or given their approval to decisions taken 
by WTO committees to be subsequent agreements with interpretative effe ct.  This contravened 
Article IX of the Marrakesh Agreement and circ umvented the protections negotiated there.  
Furthermore, at a time when Members had reemph asized the value of the WTO committees, this 
finding risked making the approval and adoption of committee decisions significantly more difficult.  
17. On a procedural matter related to Article 17.5 of the DSU, the United States noted that this 
Report had been issued 116 days after the notice of appeal was filed.  While the United States and 
Mexico had agreed that the appeal would excee d the 90-day period set out in the DSU, the 
United States remained disappointed that the Appella te Body had not provided transparency about the 
parties' agreement in its 60-day notice to Member s and in its report.  The United States thanked 
Mexico for agreeing to circulate their joint letter ag reeing that the parties would deem the Report to be 
an Appellate Body report for purposes of DSU Articl e 17.5 in order to provide transparency to all 
Members.  The United States continued to urge the Appellate Body to provide Members with the level 
of transparency it provided in proceedings exceeding 90 days prior to 2011.   
18. Finally, the United States said that it would like to recall for Members that on 24 March 2009, 
the United States had invoked Article 2005(4) of the No rth American Free Trade Agreement.  In that 
                                                      
14 Panel Report, paras. 7.320-7.334.  
15 Panel Report, para. 7.504.   WT/DSB/M/317 
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  provision, the NAFTA parties had agreed that certa in disputes which pertained to matters arising 
under both the WTO Agreement and the standards -related provisions of the NAFTA, and which 
concerned human, animal or plant life or health or the environment and raised factual issues concerning the environment or conservation, woul d be heard – at the responding party's option – 
solely under the NAFTA's dispute settlement procedures.   This dispute met the criteria set out in that 
NAFTA provision.  The United States regretted Me xico's decision to continue with WTO dispute 
settlement in disregard of its obligations.  In cl osing, the United States wished to reiterate its 
commitment to fulfilling the legitimate objectives of the Dolphin Protection Consumer Information 
Act.   
19. The representative of the European Union said that  the EU had participated as a third party in 
this dispute due to its interest in the systemic issues raised and the relevant interpretation of the 
relevant obligations set out in Articles 2.1, 2.2 a nd 2.4 of the TBT Agreement.  The EU welcomed the 
Appellate Body's clarification that the interpretation of the term "technical regul ation" in Annex 1.1 to 
the TBT Agreement required a comprehensive analysis of the measure at issue, including all its characteristics.  Moreover, the EU welcomed th e Appellate Body's clarification on the proper 
interpretation of the less favourable treatment test in Article 2.1 of the TBT Agreement.  The 
Appellate Body had applied, in a consistent manner,  the test it had set out in its Report in the "US - 
Cloves Cigarettes" dispute, whereby assessing the consistency of a measure with Article 2.1 required a twofold analysis.  First, whether the measure at  issue distorted the comp etitive conditions to the 
detriment of imported products.  Second, whether the detrimental impact on impo rted products "stems 
exclusively from a legitimate regulatory distinction rather than reflecting discrimination against the 
group of imported products".  The EU was also pleased with the Appellate Body's interpretative 
analysis of Article 2.2 of the TBT Agreement, wher e it had set out the factors that were to be taken 
into account to assess whether a measure was more tr ade-restrictive than necessary to achieve the 
legitimate objective at issue, as well as the Appellate  Body's remark that the burden of proof under 
Article 2.2 laid with the complainant. 
20. The representative of Australia said that his country welcomed the adoption of the Reports by 
the DSB.  Australia had participated in this dispute as a third party due to its systemic interest in the 
interpretation and application of the TBT Agreement.  Australia noted that this Appellate Body 
Report, along with the Appellate Body's recent Repo rt in the "US - Clove Cigarettes" dispute, had 
helped give Members a better understanding of th e precise meaning and interpretation of their 
obligations under the TBT Agreement.  Australia expect ed that those issues be further elaborated in 
the forthcoming Report in the dispute:  "US - Country of Origin Labelling".   
21. Nonetheless, Australia had some concerns arisi ng from the Appellate Body Report pertaining 
to the present dispute.  With regard to the interp retation and application of Annex 1.1 and 1.2 to the 
TBT Agreement , Australia noted that the Appellate B ody Report had provided relatively limited 
analysis on the characterization of the measure at issue in the dispute as a technical regulation.  In 
Australia's view, Members would have benefited fro m a more detailed explanation of the process of 
defining and applying the relevant interpretative tool s, particularly with respect to the difference 
between "mandatory" in the case of a technical re gulation, and "not mandatory" in the case of a 
standard.  This issue was of particular importanc e given the serious consequences that followed from 
a finding that a measure was a technical regulation ra ther than a standard.  In Australia's view, in 
determining whether a measure was a technical regul ation or a standard, it was essential to maintain 
as clear a distinction between these concepts as the te xt of the TBT Agreement would permit, so as to 
assist Members in the design and implementation of their measures.   
22. Australia emphasized the importance of ensuri ng that future decisions on issues of this 
magnitude clearly set out the interpretive process, which had been followed by the Appellate Body, 
including drawing upon Article 31 of the Vienna C onvention on the Law of Treaties in determining 
the meaning of significant terms.  It was important to remember that Members had deliberately WT/DSB/M/317 
Page 8  
 
  distinguished between technical regulations and sta ndards in the drafting of the TBT Agreement, so 
that rules applying to one set of measures were qu ite different from the rules applying to another.  
Properly interpreted in light of the definitions in Annex 1 of the TBT Agreement, a measure could not 
be determined to be a technical regulation if it was a standard, and vice versa.  Australia looked 
forward to further clarification of those issues in relevant future disputes.   
23. Australia also noted that the Appellate Body Report had been circulated outside the maximum 
90-day time-frame set down in Article 17.5 of the DSU.  Australia wished to express its appreciation for and understanding of the recent heavy workload of the Appellate Body.  Australia had always 
emphasized that the quality of Appellate Body repor ts was paramount.  Nevertheless, now that the 
workload of the Appellate Body had eased, Australia  hoped that future Appella te Body reports could 
be issued within the mandated 90-day time-frame.  Australia thanked the Appellate Body, the Panel 
and the Secretariat for their work in this disput e.  Australia hoped that the DSB's recommendations 
would be implemented in a timely manner so as to bring this dispute to a close.  
24. The representative of Japan said that his country  thanked the Panel, the Appellate Body and 
the respective Secretariats for their hard work and for their Reports.  As an interested third party, 
Japan had participated in this dispute due to its sy stemic interest in the proper interpretation of the 
relevant provisions of the TBT Agreement at issue in this dispute.  Japan was still analyzing the 
Appellate Body's findings and their possible impli cations, but wished to make some preliminary 
observations.  First, the Appellate Body appeared to reject the Panel's approach that regulatory 
distinction based on other factors than "national origin per se  cannot be relevant in assessing the 
consistency of a particular measure with Article 2.1 of the TBT Agreement", because it was "difficult 
to reconcile with the fact that a measure may be de facto  inconsistent with Article 2.1 when it is 
origin-neutral on its face".16  Thus the Appellate Body had made it clear that "any adverse impact on 
competitive opportunities for imported product vis-à-vis  like domestic product that is caused by a 
particular measure may potentially be relevant".17   
25. Second, while reaffirming that the sixth recita l of the preamble would constitute a relevant 
context regarding "the meaning and ambit of the 'treatment no less favorable' requirement in 
Article 2.1"18, the Appellate Body appeared to reject the le gal theory that the sixth recital "sets out a 
test that is separate and independe nt from Article 2.1" and "each of the criteria of the sixth recital" 
must be examined to determine the consistency of  a technical regulation at issue with Article 2.1.19   
26. Third, with respect to the burden of proof under the Article 2.1 claim, the Appellate Body had 
found that the burden of demonstrating that a tech nical regulation at issue was inconsistent with 
Article 2.1 was on the complainant, which would pr esumably include the showing that the detrimental 
impact on imports reflected discrimination against imports rather than stemming exclusively from a legitimate regulatory distinction (e.g. possible by showing that "the measure is not even-handed").
20  
However, the Appellate Body also appeared to r ecognize that it was for the respondent to show "that 
the detrimental impact on imported products stems exclusively from a legitimate regulatory 
distinction"21, the issue that a panel must analyze to determine no less favorable treatment under 
Article 2.1.22  
                                                      
16 Appellate Body Report, para. 225 
17 Appellate Body Report, para. 225. 
18 Appellate Body Report, para. 213;  see also Appellate Body Report, "US - Clove Cigarettes", 
para. 173. 
19 Appellate Body Report, para. 219. 
20 Appellate Body Report, paras. 216 and 283. 
21 Appellate Body Report, paras. 216, 283-284.  
22 Appellate Body Report, para. 214;  see also Appellate Body Report, "US - Clove Cigarettes", 
paras. 182 and 215.  WT/DSB/M/317 
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  27. Fourth, Japan noted that the Appellate Body a ppeared to emphasize the need to inquire the 
measure's "even-handedness" in the analysis of no less favorable treatment requirement under 
Article 2.1.23  This notion of "even-handedness" or, th e "even-handedness" test had first been 
introduced by the Appellate Body in "US - Clove Cigarettes"24 and was given further prominence in 
this appeal.  Specifically, in this dispute, the Appellate Body had scrutinized the measure's "even-
handedness" in its analysis of whether the "differen ce in labeling conditions is a legitimate regulatory 
distinction".25  However, Japan still wondered about the precise content or scope of the notion of 
"even-handedness" and where this "even-handedness" test would be situated in the overall "no less 
favorable treatment" inquiry.   
28. Fifth, after reversing the Panel's finding unde r Article 2.1, the Appellate Body had relied on 
the Panel's factual findings made in the contex t of the analysis under Article 2.2 when it had 
continued to assess whether the detrimental impact reflected discrimination.26  Japan recognized that 
there was a certain overlap between the issue under Ar ticle 2.1 and the issue explored and decided by 
the Panel under Article 2.2, and to a certain ex tent those Panel's factual findings made under 
Article 2.2 would be relevant to the inquiry of whether the detrimental impact stemmed exclusively 
from a legitimate regulatory distincti on.  However, as the Appellate B ody had explained, the scope of 
inquiries under Articles 2.1 and 2.2 in this disput e differed and the different questions had been 
presented under these two different provisions.  Japan wi shed to simply recall, in this respect, the 
Appellate Body's previous statement in another dis pute that "in the absence of a full exploration of 
[the] issues, completing the analysis might aff ect the due process rights of the participants".27   
29. Sixth, the Appellate Body had found that the Panel exercised a false judicial economy by not 
ruling on Mexico's claims under GATT 1994 while fi nding no violation under Article 2.1 of the TBT 
Agreement, partly because "as we have found above , the scope and content of these provisions is not 
the same".28  However, no preceding part of the Report was cited and Japan was unable to identify 
such findings in the Report.  It would be useful if the Appellate Body could have provided clarity on 
this point.   
30. Finally, with respect to Article 17.5 of the DS U to which the United States and Australia had 
referred, Japan agreed that, for the purpose of full tr ansparency, the parties' consent should have been 
recorded in the Appellate Body Report, as had been  the customary practice of the Appellate Body in 
the past.   
31. The representative of Argentina said that his co untry thanked the Panel, the Appellate Body 
and the Secretariat for their work in this dispute a nd for the Reports to be adopted by the DSB at the 
present meeting.  Argentina had participated as a third party in this dispute, given its systemic interest 
in the correct interpretation of the provisions at issue in this dispute, in particular with regard to the 
TBT Agreement.  Argentina was pleased to note that  both the Panel and the Appellate Body had ruled 
that the measure at issue was a technical regulation within the meaning of Annex 1 to the TBT Agreement and was consequently subject to its provisions.  Argentina also welcomed the 
Appellate Body's reversal of the Panel's decisi on concerning the consistency of the US technical 
regulation with Article 2.1 of the TBT Agreement.  In its third-party statement, Argentina had pointed 
out that the US measures on "dolphin safe" labelli ng were discriminatory and ultimately inconsistent 
with that provision.  This was because basing th e criteria for granting a label on a production system 
or conditions, such as, in the present case, on the use of a particular method of fishing, led to 
                                                      
23 Appellate Body Report, e.g. footnote 461 to para. 215, paras. 216, 225, 232, and 281-298.  
24 Appellate Body Report, "US - Clove Cigarettes", paras. 95, 182 and 215. 
25 Appellate Body Report, para. 284. 
26 Appellate Body Report, e.g. para. 243. 
27 Appellate Body Report, "EC - Sugar", para. 339. 
28 Appellate Body Report, para. 405 (emphasis added). WT/DSB/M/317 
Page 10  
 
  discrimination between like products.  The US measur es discriminated on the basis of where the tuna 
was caught and the fishing method employed.  Th e Appellate Body had taken the same view in 
reversing the Panel's findings, considering that th e measures at issue modified the conditions of 
competition in the US market to the detriment of Mexican tuna products.  
32. In its third-party statement, Argentina had also noted that the definition of "dolphin safe" in 
the Agreement on the International Dolphin C onservation Program (AIDCP) did not constitute 
a "relevant international standard", given that the Agreement was not a "recognized body" for the 
setting of "international standards" that require d other WTO Members to adjust their domestic 
legislation.  This was important because countries su ch as Argentina that were not contracting parties 
to this agreement were under no obligation to comply with standards issued by organizations to which 
they were not party.  Argentina welcomed the Appellate Body's ruling that the AIDCP dolphin safe 
definition did not constitute a "relevant interna tional standard" requiring mandatory compliance by 
WTO Members.  Thus, Argentina was satisfied with  the way in which this case had been settled, 
avoiding in particular, forms of discrimination in international trade flows that were unjustifiable in 
light of the principles of the multilateral trading system.   
33. The representative of Mexico said that his count ry wished to comment on the US statement.  
At the Panel stage, it had been demonstrated that the fishing method used by the Mexican fleet had a 
dolphin mortality or injury rate of 0.1 per cent, and the Appellate Body had not reversed that finding.  
It had also been demonstrated, and in fact recogni zed by the United States, that the "dolphin-safe" 
label used or allowed in the United States did not necessarily imply that no dolphins were killed or 
injured in the course of tuna fishing.  This conclusion had not been reversed.   
34. With regard to the issue of technical regul ation and the difference between a technical 
regulation and standard in the specific case of this  appeal, it had been determined that government 
intervention whereby a technical regulation was i ssued should also be taken into account for the 
purposes of differentiating between a regulation and a standard.  Mexico, therefore, agreed with the 
Panel's interpretation on this matter, which had not been reversed by the Appellate Body.  The 
United States noted that the Mexican fleet did not change its fishing methods.  However, it should be 
emphasized that in the course of the Appellate B ody's proceedings, the United States had argued that 
the imposition of a condition that an observer certify that no dolphins were killed or seriously injured 
on a particular fishing trip outside the ETP woul d have significant monetary and infrastructure 
implications for most nations whose vessels fish ed for tuna outside the ETP and exported to the 
United States.  The Mexican fleet was the only fleet th at would have to assume the costs.  With regard 
to the issue of discrimination, Mexico attached cons iderable significance to the fact that, with a view 
to determining a violation of Article 2.1 of the TB T Agreement, the Appellate Body had stated that 
while it was possible to sell tuna products without a "dolphin-safe" label in the United States, any producer, importer, exporter, distributor or seller of tuna products must comply with the measure at 
issue in order to make any "dolphin-safe" claim.  This was what provided evidence of less favourable 
treatment.   
35. With regard to the parties' consent to circ ulate the Appellate Body Report outside the time-
limit stipulated in Article 17.5 of the DSU, Mexico  noted that the United States had made a special 
request in this regard and Mexico had agreed to de lay the issuance of the Repo rt.  With regard to the 
US argument that the dispute should have b een settled under the NAFTA's dispute settlement 
procedures, Mexico noted that the NAFTA mech anism was not operating properly because of the 
problems related to the roster of panelists.  At  the same time, Mexico pointed out that the 
United States had not referred the dispute "Mexico -Corn Syrup" to the NAFTA procedures.  In 
Mexico's view, the US position on this issue was not consistent.  Mexico considered that this dispute 
was highly complex and had addresse d many relevant aspects.  Mexico believed that the Appellate 
Body had carried out sound analysis and had take n into account the findings made in previous cases 
such as "US - Clove Cigarettes".     WT/DSB/M/317 
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  36. The representative of the United States said that , with respect to Mexico's comments on the 
characterization of certain facts in this dispute, at this time the United States would simply point out 
that it would have a copy of its statement availabl e after the present meeting, which included citations 
to specific findings in the Panel and Appellate Bo dy Reports, so Members could check for themselves 
what had been debated at the present meeting.  W ith respect to NAFTA panel composition, this was 
an issue the United States had discussed with Me xico in the past, and the United States looked 
forward to doing so again.   
37. The DSB took note of the statements, and adopt ed the Appellate Body Report contained in 
document WT/DS381/AB/R and the Panel Report contained in document WT/DS381/R, as modified 
by the Appellate Body Report. 
__________