WT/DS381/24  
 
10 June 2015  
(15-3012)  Page: 1/3  
  Original: English  
 
 UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND 
SALE OF TUNA AND TUNA PRODUCTS 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO 
NOTIFICATION OF AN APPEAL  BY THE UNITED STATES 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following communication, dated 5 June 2015, from the delegation of the United States, 
is being circulated to Members.  
_______________ 
  
1. Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and to Rule 20 of the Working Procedures for Appellate Review , 
the United States hereby notifies its decision to appeal to the Appellate Body certain issues of law 
covered in the Report of the Panel in United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products: Recourse to Article 21.5 of the DSU by Mexico  
(WT/DS381/RW) ("Panel Report") and certain legal interpretations developed by the Panel.  
2. The United States seeks review by the Appellate  Body of the Panel's findings and conclusion 
that the amended U.S. dolphin safe labeling measure is inconsistent with Article 2.1 of the 
Agreement on Technical Barriers to Trade  (the "TBT Agreement") because it accords less favorable 
treatment to Mexico's tuna and tuna product exports.
1 This conclusion is in error and is based on 
erroneous findings on issues of law and legal interpretations, including: 
(a) the Panel's finding that the certificat ion requirements of the amended measure 
modify the conditions of competition in the U.S. market to the detriment of like 
Mexican tuna and tuna products because they impose a lighter burden on tuna and 
tuna product caught outside the Eastern Tropical Pacific (ETP) large purse seine fishery than on tuna and tuna product caught within it.
2  
 
(b) the Panel's finding that the detrimental impact caused by the certification 
requirements does not stem exclusively fr om legitimate regulatory distinctions 
because the requirements for tuna caught outside the ETP large purse seine fishery 
may result in inaccurate information being passed to consumers.3  
 
                                               
1 See, e.g. , Panel Report, paras. 7.233, 7.263, 8.2(b) (with respect to the certification requirements); 
id. paras. 7.400, 8.2(c) (with respect to th e tracking and verifica tion requirements). 
2 See, e.g.,  Panel Report, paras. 7.162, 7.170, 7.178-179, 7.454, 7.500, 8.2(b).  The United States 
considers that the Panel erred as a matter of law with respect to this finding.  However, to the extent that the Appellate Body considers the question of  the meaning of municipal law in this instance to be a question of fact, 
the Panel acted inconsistently with Article 11 of the DSU in concluding that the certification requirements apply 
to all tuna and tuna product. 
3 See e.g. , Panel Report, paras. 7.233-7.234, 7.246, 7.598-7.602, 8.2(b).   WT/DS381/24 
 
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  (c) the Panel's finding that the detrimental impact caused by the certification 
requirements does not stem exclusively from legitimate regulatory distinctions due to the design of the determination provisions.
4 
 
(d) the Panel's finding that the tracking and verification requirements of the amended 
measure modify the conditions of competition in the U.S. market to the detriment of like Mexican tuna and tuna products because they impose a lesser burden on 
tuna and tuna product caught outside the ETP large purse seine fishery than on 
tuna and tuna product caught within it.
5 
 (e) the Panel's finding that the detrimental impact caused by the tracking and 
verification requirements does not stem exclusively from legitimate regulatory 
distinctions.
6 
 
3. The United States also seeks review by the Appellate Body of the Panel's findings and 
conclusions that the amended U.S. dolphin safe labeling measure is inconsistent with Articles I:1 and III:4 of the General Agreement on Tariffs and Trade 1994  (the "GATT 1994")
7 a n d ,  i f  t h e  
Appellate Body should not reverse the Panel's finding with respect to either Article I:1 or 
Article III:4, then the United States seeks revi ew of the Panel's findings that the amended 
measure is not applied consistently with the Article XX chapeau.8 These conclusions are in error 
and are based on erroneous findings on issues of law and legal interpretations, including:  
(a) the Panel's finding that the certification requirements of the amended measure are 
inconsistent with Article I:1 of the GATT 1994 because they require observer 
coverage for purse seine vessels in the ETP but not for vessels in other fisheries.9 
 
(b) the Panel's finding that the tracking and verification requirements of the amended 
measure are inconsistent with Article I:1 of the GATT 1994 because they impose a 
lesser burden on vessels outside the ETP large purse seine fishery than on vessels 
within it.10 
 (c) the Panel's finding that the certification requirements of the amended measure are 
inconsistent with Article III:4 of the GATT 1994 because they impose a lighter 
burden on tuna caught outside the ETP large purse seine fishery than inside it.
11 
 
(d) the Panel's finding that the tracking and verification requirements of the amended 
measure are inconsistent with Article I II:4 of the GATT 1994 because they impose 
a lighter burden on tuna caught outside the ETP large purse seine fishery than 
inside it.12 
 (e) the Panel's finding that the certificat ion requirements of the amended measure 
impose "arbitrary and unjustifiable discrimination between countries where the 
same conditions prevail," contrary to the chapeau of Article XX of the GATT 1994, 
because the requirements for tuna and tuna product caught outside the ETP large purse seine fishery make it easier for non-dolphin-safe tuna to be incorrectly 
labeled as dolphin safe.
13 
                                               
4 See e.g. , Panel Report, paras. 7.258-263, 7.283, 8.2(b). 
5 See, e.g. , Panel Report, paras. 7.369-7.372, 7.382, 7.462-7.463, 7.502, 8.2(c).  The United States 
considers that the Panel erred as a matter of law with respect to this finding.  However, to the extent that the Appellate Body considers the question of  the meaning of municipal law in this instance to be a question of fact, 
the Panel acted inconsistently with Article 11 of the DSU in concluding that the tracking and verification requirements apply to all tuna and tuna product. 
6 See, e.g. , Panel Report, paras. 7.392, 7.395, 7.397-7.402, 8.2(c). 
7 See, e.g. , Panel Report paras. 7.455-456, 7.500-7.501, 7.504, 8.3(b) (with respect to the certification 
requirements); id. paras. 7.464-465, 7.502-7.504, 8.3(c) (with respect to the tracking and verification 
requirements). 
8 See, e.g. , Panel Report, paras. 7.603-7.605, 8.5(b) (with respect to the certification requirements); 
id. paras. 7.611, 8.5(c) (with respect to th e tracking and verifica tion requirements). 
9 See, e.g. , Panel Report, paras. 7.455-7.456, 8.3(b). 
10 See, e.g. , Panel Report, paras. 7.463-7.465, 8.3(c). 
11 See, e.g. , Panel Report, paras. 7.500-7.501, 8.3(b). 
12 See, e.g. , Panel Report, paras. 7.502-7.503, 8.3(c). 
13 See, e.g. , Panel Report, paras. 7.598-7.603, 7.605, 8.5(b).  WT/DS381/24 
 
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(f) the Panel's finding that the certificat ion requirements of the amended measure 
impose "arbitrary and unjustifiable discrimination between countries where the same conditions prevail," contrary to the chapeau of Article XX of the GATT 1994, 
due to the design of the determination provisions.
14 
 (g) the Panel's finding that the tracking and verification requirements impose 
"arbitrary and unjustifiable discriminat ion between countries where the same 
conditions prevail" contrary to the chap eau of Article XX of the GATT 1994 because 
they impose a lesser burden on tuna caught other than in the ETP large purse seine fishery.
15 
 
4. The United States also requests the Appellate Body to find that the Panel failed to make an 
objective assessment of the matter before it, as call ed for by Article 11 of the DSU, with regard to 
the so-called "determination provisions."16 The Panel drew its conclusions with regard to these 
provisions based on factual findings that were without a sufficient evidentiary basis, without assessing the totality of the evidence, and without adequate explanation.
17 
5. In the event that Mexico appeals the findin g by the Panel that the amended measure, 
including the three challenged elements, is pr ovisionally justified under subparagraph (g) of 
Article XX of the GATT 1994 and the Appellate Body reverses the finding with respect to any of the 
three challenged elements, the United States seek s review of the Panel's exercise of judicial 
economy with respect to the U.S. defense under Article XX(b) of the GATT 1994.18 
The United States submits that there are sufficien t facts on the record for the Appellate Body to 
complete the analysis of the amended measure, in cluding the three challenged elements, and find 
that the measure is provisionally justified under Article XX(b). 
__________  
                                               
14 See, e.g. , Panel Report, paras. 7.604-7.605, 7.607, 8.5(b). 
15 See, e.g. , Panel Report, paras. 7.610-7.611, 8.5(c). 
16 See Panel Report, paras. 7.258-7.263, 7.604. 
17 See, e.g. , Panel Report, paras. 7.258-7.263, 7.604. 
18 See Panel Report, paras. 7.543-7.545.