WT/DS381/RW/USA/Add.1  
WT/DS381/RW 2/Add.1  
 
26 October  2017 
(17-5777) Page: 1/68 
  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 IMPORTATION, 
MARKETING AND SALE O F TUNA AND TUNA PROD UCTS  
SECOND RECOURSE TO ARTI CLE 21.5 OF THE DSU BY MEXICO  
REPORT S OF THE PANEL S 
Addendum  
This addendum  contains Annexes A to C to the Report s of the Panel s to be found in document  
WT/DS381/RW/USA and WT/DS381/RW 2. 
 
 
 
_______________  
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKI NG PROCEDURES OF THE  PANEL S 
Contents  Page  
Annex  A-1 Working Procedures of the Panel  (Article 21.5 – United States)     A-2 
Annex A -2 Working Procedures of the Panel (Article 21.5 – Mexico II)     A-6 
Annex  A-3 Procedures o f the Panels Concerning Business Confidential Information     A-10 
Annex  A-4 Additional Working Procedures of the Panels on Partially Open Hearings     A-11 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Executive summary of the arguments of the United States       B-2 
Annex  B-2 Executive summary of the arguments of Mexico  B-13 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Australia  C-2 
Annex  C-2 Executive summary of the arguments of Brazil  C-5 
Annex  C-3 Executive summar y of the arguments of Canada  C-8 
Annex C -4 Executive summary of the arguments of Ecuador  C-12 
Annex C -5 Executive summary of the arguments of the European Union  C-13 
Annex C -6 Executive summary of the arguments of Japan  C-16 
Annex C -7 Executive summary  of the arguments of New Zealand  C-19 
Annex C -8 Executive summary of the arguments of Norway  C-21 
 
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES O F THE PANEL S 
Contents  Page  
Annex  A-1 Working Procedures of the Panel (Article 21.5 – United States)     A-2 
Annex A -2 Worki ng Procedures of the Panel (Article 21.5 – Mexico II)     A-6 
Annex  A-3 Procedures o f the Panels Concerning Business Confidential Information     A-10 
Annex  A-4 Additional Working Procedures of the Panels on Partially Open Hearings     A-11 
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-2 - 
 
  ANNEX  A-1 
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MAR KETING AND SALE 
OF TUNA AND TUNA PRO DUCTS  
(WT/DS381)  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE UNITED STATES  
 
WORKING PROCEDURES O F THE PANEL  
Adopted on 4 July 2016  
 
Modified on 3 August 2016  
 
 
1. In its p roceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
2. The deliberations of the Panel and the d ocuments 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 
confident ial information submitted by another Member to the Panel which the submitting Member 
has designated as confidential. Business Confidential Information (BCI), as defined in the Panel's 
Additional Procedures Concerning Business Confidential Information, shal l be submitted and 
treated in accordance with those Additional Procedures. 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 co uld be disclosed 
to the public.  
3. 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 
(here after "third parties"), shall be present at the meetings only when invited by the Panel to 
appear before it. The Panel may, upon request by a party or third party, authorize that party, or 
third party, to lift the confidentiality, by way of delayed viewing , of its own statements made 
during the Panel's meeting with the parties, or the special session for third parties. Such lifting of 
confidentiality will be authorized only where it does not impair or otherwise interfere with either 
the rights of the other party or other third parties or the integrity and promptness of the dispute 
settlement process. Moreover, such lifting of confidentiality shall be in accordance with additional 
working procedures, to be adopted by the Panel after consulting with the partie s. A request that 
the Panel adopt additional working procedures to facilitate this lifting of confidentiality shall be 
made to the Panel no fewer than six weeks before the meeting where the statements in question 
will be delivered.  
4. Each party and third par ty has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have responsibility for all members 
of its own delegation and shall ensure that each member of such delegation acts in accorda nce 
with the DSU and these Working Procedures, particularly with regard to the confidentiality of the 
proceedings.  
Submissions  
 
5. Before the substantive meeting of the Panel with the parties, each party shall transmit to the 
Panel a first written submission , and subsequently a written rebuttal, in which it presents the facts 
of the case and its arguments, and counter -arguments, respectively, in accordance with the 
timetable adopted by the Panel.  
6. A party shall submit any request for a preliminary ruling at t he earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If the United States WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  requests such a ruling, Mexico shall submit its response to the request in its first written 
submission. If Mexico requests s uch a ruling, the United States shall submit its response to the 
request prior to the substantive meeting of the Panel, at a time to be determined by the Panel in 
light of the request. Exceptions to this procedure shall be granted upon a showing of good ca use.  
7. Each party shall submit all factual evidence to the Panel no later than during the substantive 
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party. Excep tions to this procedure shall be 
granted upon a showing of good cause. Where such exception has been granted, the Panel shall 
accord the other party a period of time for comment, as appropriate, on any new factual evidence 
submitted after the substantive m eeting.  
8. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of the submission at the 
same time. The Panel may grant reasonable extensions of ti me for the translation of such exhibits 
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised 
promptly in writing, preferably no later than the next filing or meeting (whichever occurs earlier) 
following the submi ssion which contains the translation in question. Any objection shall be 
accompanied by a detailed explanation of the grounds of objection and an alternative translation.  
9. In order to facilitate the work of the Panel, each party and third party is invited t o make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as 
Annex  1, to the extent that it is practical to do so.  
10. To facilitate the maintenance of the record of the dispute, and maximize the clarity of 
submissions, e ach party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by the United States could be numbered 
US-1, US -2, etc. If the last exhibit in connection with the first submission was n umbered US -5, the 
first exhibit of the next submission thus would be numbered US -6. The  first time a party or third 
party submits to the Panel an exhibit that corresponds to an exhibit submitted in the original panel 
proceedings or in the previous complian ce proceeding, the party or third party submitting such 
exhibit shall also identify, within brackets, the number of the original exhibit along with the prior 
proceeding in which it was submitted.  
11. Any exhibit submitted by a party or third party in US – Tuna II (Article 21.5 – Mexico II)  
shall automatically form part of the record of this proceeding. Where a party or third party wishes 
to refer to an exhibit submitted in US – Tuna II (Article 21.5 – Mexico II) , it shall add an 
appropriate bracket after referr ing to the exhibit to clarify (e.g. Exhibit US -2 (US – Tuna II (Article 
21.5 – Mexico II) )).  
Questions  
 
12. The Panel may at any time pose questions to the parties and third parties, orally in the 
course of the substantive meeting or in writing.  
Substantive meeting  
 
13. Each party shall provide to the Panel the list of members of its delegation in advance of the 
meeting with the Panel and no later than 5.00  p.m. the previous working day.  
14. The substantive meeting of the Panel shall be conducted as follows:  
a. The Pane l shall invite the United States to make an opening statement to present its 
case first. Subsequently, the Panel shall invite Mexico 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. In the event that 
interpretation is needed, each party shall provide additional copies to the interpreters. 
Each party shall make available to the Panel and the other party the final version of it s 
opening statement and its closing statement, if any, preferably at the end of the 
meeting, and in any event no later than 5.00  p.m. on the first working day following the 
meeting.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  b. After the conclusion of the statements, the Panel shall give each party th e opportunity to 
ask questions or make comments, through the Panel. Each party shall send in writing, 
within a timeframe 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 b e invited to respond in 
writing to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. The Panel shall send in 
writing, within a timeframe to be determined by it, any questi ons to the parties to which 
it wishes to receive a response in writing. Each party shall be invited to 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 par ty an opportunity to 
present a brief closing statement, with the United States presenting its statement first.  
Third parties  
 
15. The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the substantive meeting of the Pan el with the parties, in accordance with the timetable adopted by 
the Panel.  
16. Each third party shall also be invited to present its views orally during a session of the 
substantive meeting, set aside for that purpose. Each third party shall provide to the P anel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
17. The third party session shall be conducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The P anel 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. Third parties shall make 
available to the Panel, the parties and other third parties the final versions of their 
statements, preferably at the end of the session, and in any event  no later than 
5.00 p.m. of 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 ra ised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined 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 q uestions to the third parties. The Panel shall send in 
writing, within a timeframe 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 be invited to 
respond in writing to su ch questions within a deadline to be determined by the Panel.  
Descriptive part  
 
18. The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist of executive summaries provided by the parties and t hird parties, 
which shall be annexed as addenda to the report.  These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.   
19. Each party shall submit an e xecutive summary of the facts and arguments as presented to 
the Panel in its written submissions and oral statements, in accordance with the timetable adopted 
by the Panel.  This summary may also include a summary of responses to questions.  Each such 
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the parties' responses to questions.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  20. Each third party shall submit an executive summary of its arguments as presented in it s 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
Interim review  
21. 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.  
22. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written requ est 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.  
23. The interim report, as well as the final report prior to its official circulation, shall be  kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
24. 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 (off ice No. 2047).  
b. Each party and third party shall file four (4) paper copies of all documents it submits to 
the Panel. Exhibits may be provided in four (4) copies on CD -ROM or DVD and two (2) 
paper copies.  The DS  Registrar shall stamp the documents with th e 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, in Microsoft Word format, 
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is 
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to 
****.**** @wto.org @wto.org, ****.**** @wto.org, ****.****@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 and third party shall file its documents with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel. A party or third party may submit its  documents 
to another party or third party in electronic format only, subject to the recipient party or 
third party's prior written approval and provided that the Panel Secretary is notified. 
Each party and third party shall confirm, in writing, that copie s have been served as 
required at the time it provides each document to the Panel.  
e. 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.  
Modification of working procedures  
 
25. The Pane l may modify these working procedures after consulting with the parties.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX A -2 
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETI NG AND SALE 
OF TUNA AND TUNA PRO DUCTS  
(WT/DS381)  
SECOND RECOURSE TO A RTICLE 21.5 OF THE D SU BY MEXICO  
 
WORKING P ROCEDURES OF THE PAN EL 
Adopted on 3 August 2016  
 
 
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shal l 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 by another Member to the Panel which the submitting Member 
has designated as confidential. Business Confidential Information (BCI), as defined in the Panel's 
Additional Pro cedures Concerning Business Confidential Information, shall be submitted and 
treated in accordance with those Additional Procedures. Where a party submits a confidential 
version of its written submissions to the Panel, it shall also, upon request of a Memb er, provide a 
non-confidential summary of the information contained in its submissions that could be disclosed 
to the public.  
3. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Sett lement 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. The Panel may, upon request by a party or third party, authorize that party, or 
third par ty, to lift the confidentiality, by way of delayed viewing, of its own statements made 
during the Panel's meeting with the parties, or the special session for third parties. Such lifting of 
confidentiality will be authorized only where it does not impair o r otherwise interfere with either 
the rights of the other party or other third parties or the integrity and promptness of the dispute 
settlement process. Moreover, such lifting of confidentiality shall be in accordance with additional 
working procedures, t o be adopted by the Panel after consulting with the parties. A request that 
the Panel adopt additional working procedures to facilitate this lifting of confidentiality shall be 
made to the Panel no fewer than six weeks before the meeting where the statemen ts in question 
will be delivered.  
4. 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 responsibility for all members 
of its own delegation and shall ensure that each member of such delegation acts in accordance 
with the DSU and these Working Procedures, particularly with regard to the confidentiality of the 
proceedings.  
Submissions  
 
5. Before the substantive meeting of the Panel with the parties, each par ty shall transmit to the 
Panel a first written submission, and subsequently a written rebuttal, in which it presents the facts 
of the case and its arguments, and counter -arguments, respectively, in accordance with the 
timetable adopted by the Panel.  
6. A part y shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If Mexico requests such 
a ruling, the United States shall submit its response to the reque st in its first written submission. If 
the United States requests such a ruling, Mexico shall submit its response to the request prior to WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  the substantive meeting of the Panel, at a time to be determined by the Panel in light of the 
request. Exceptions to t his procedure shall be granted upon a showing of good cause.  
7. Each party shall submit all factual evidence to the Panel no later than during the substantive 
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party. Exceptions to this procedure shall be 
granted upon a showing of good cause. Where such exception has been granted, the Panel shall 
accord the other party a period of time for comment, as appropriate, on an y new factual evidence 
submitted after the su bstantive meeting.  
8. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of the submission 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 should be raised 
promptly in writing, preferably 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.  
9. In order to facilitate the wor k 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 as 
Annex  1, to the extent that it is practical to do so.  
10. 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 the United States could be numbered 
US-1, US -2, etc. If the las t exhibit in connection with the first submission was numbered US -5, the 
first exhibit of the next submission thus would be numbered US -6. The  first time a party or third 
party submits to the Panel an exhibit that corresponds to an exhibit submitted in the  original panel 
proceedings or in the previous compliance proceeding, the party or third party submitting such 
exhibit shall also identify, within brackets, the number of the original exhibit along with the prior 
proceeding in which it was submitted.  
11. Any E xhibit submitted by a party or third party (other than India) in US – Tuna II 
(Article 21.5 – US) shall automatically form part of the record of this proceeding. Where a party or 
third party wishes to refer to an exhibit submitted in US – Tuna II (Article 21.5 – US), it shall add 
an appropriate bracket after referring to the exhibit to clarify (e.g. Exhibit US -2 (US – Tuna II 
(Article 21.5 - US))). 
Questions  
 
12. The Panel may at any time pose questions to the parties and third parties, orally in the 
course of the substantive meeting or in writing.  
Substantive meeting  
 
13. Each party shall provide to the Panel the list of members of its delegation in advance of the 
meeting with the Panel and no later than 5.00  p.m. the previous working day.  
14. The substantive meeting of the Panel shall be conducted as follows:  
a. The Panel shall invite Mexico to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before 
each party takes the floor, it sha ll provide the Panel and other participants at the 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies to the interpreters. 
Each party shall make available to t he Panel and the other party the final version of its 
opening statement and its closing statement, if any, preferably at the end of the 
meeting, and in any event no later than 5.00  p.m. on the first working day following the 
meeting.  
b. After the conclusion o f the statements, the Panel shall give each party the opportunity to 
ask questions or make comments, through the Panel. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-8 - 
 
  which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. The Panel shall send in 
writing, w ithin a timeframe to be determined by it, any questions to the parties to which 
it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
d. Once the questi oning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Mexico presenting its statement first.  
Third parties  
 
15. The Panel shall invite each third party to transmit to the Panel a written submission pr ior to 
the substantive meeting of the Panel with the parties, in accordance with the timetable adopted by 
the Panel.  
16. Each third party shall also be invited to present its views orally during a session of the 
substantive meeting, set aside for that purpose . Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
17. The third party session shall be conducted as follows:  
a. All third parties may be present du ring 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. Third parties shall make 
available to the Panel, the parties and other third parties the final versions of their 
statements, preferably at  the end of the session, and in any event no later than 
5.00 p.m. of 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 que stions for clarification on any 
matter raised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in wr iting.  
d. The Panel may subsequently pose questions to the third parties. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties to 
which it wishes to receive a response in writing. Each third party sha ll be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
18. The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist of executiv e summaries provided by the parties and third parties, 
which shall be annexed as addenda to the report.  These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.   
19. Each party shall submit an executive summary of the facts and arguments as presented to 
the Panel in its written submissions and oral statements, in accordance with the timetable adopted 
by the Panel.  This summary may also include a summary o f responses to questions.  Each such 
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the parties' responses to questions.  
20. Each third party shall submit an executive su mmary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by ea ch third party shall not exceed 6  pages.  
Interim review  
21. 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.  
22. In the event that no further meeting with the Panel is requested, each party may submit 
written c omments 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.  
23. The interim report, as well as the final report pr ior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
24. 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 four (4) paper copies of all documents it submits to 
the Panel. Exhibits may be provided in four (4) copies on CD -ROM or DVD and two (2) 
paper copies.  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, in Microsoft Word format, 
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is 
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to 
****.****@wto.org @wto.org, ****.**** @wto.org, ****.****@wto.org , 
****.****@wto.org  and ****.**** @wto.org. If a CD -ROM or DVD is provided, it  shall 
be filed with the DS Registr y. 
d. Each party and third party shall file its documents with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel. A  party or third party may submit its documents 
to another party or third party in electronic format only, subject to the recipient party or 
third party's prior written approval and provided that the Panel Secretary is notified. 
Each party and third party s hall confirm, in writing, that copies have been served as 
required at the time it provides each document to the Panel.  
e. 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.  
Modifica tion of working procedures  
 
25. The Panel may modify these working procedures after consulting with the parties.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX A -3 
PROCEDURES OF THE PA NELS CONCERNING BUSINESS CONFIDENTIAL INFORMA TION1 
Adopted on 4 July 2016  
 
 
1. These procedures apply to any busines s confidential information (BCI) that a party submits 
to the Panel.  
2. For the purposes of these procedures, BCI is defined as any information that has been 
designated as such by the party submitting the information and that is not available in the public  
domain and the release of which could reasonably be considered to cause or threaten to cause 
harm to an interest of the person or entity that supplied the business information to the party.  
3. No person may have access to BCI except a member of the Secret ariat or the Panel, a 
party's or third party’s employee participating in the dispute, and a party's or third party’s outside 
advisor for purposes of this dispute. However, an outside advisor is not permitted access to BCI if 
that advisor is an officer or e mployee of an enterprise engaged in the production, export, or import 
of tuna or tuna products. When a party or third party provides BCI to an outside advisor who is an 
employee or officer of an industry association of such enterprises, that party or third  party shall 
obtain written assurances from such advisor that he or she has read and understands these 
procedures and will not disclose any BCI in contravention of these procedures.  
4. A party obtaining access to BCI as a result of the BCI being submitted in this dispute shall 
treat it as confidential, i.e. shall not disclose that information other than to those persons 
authorized to receive it pursuant to these procedures. Each party and third party shall have 
responsibility in this regard for its employee s as well as any outside advisors for the purposes of 
this dispute. BCI obtained under these procedures may be used only for the purpose of providing 
information and argumentation in this dispute.  
5. A party or third party submitting or referring to BCI in  a document shall mark the cover and 
each page of the document to indicate the presence of BCI in the document as follows: BCI  shall 
be placed between double brackets (for example, [[xx,xxx.xx]]). The cover and the top of each 
page of the document shall co ntain the notice "Contains Business Confidential Information". Any 
BCI that is submitted in electronic form shall be clearly marked with the phrase "Contains BCI" on 
a label on the storage medium, and clearly marked with the phrase "Contains BCI" in the 
electronic file name.  
6. The parties, third parties, and the Panel shall store all documents containing BCI so as to 
prevent unauthorized access to such information.  
7. The Panel shall not disclose BCI, in its report or in any other way, to persons not autho rized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel makes its report publicly available, the 
Panel shall give each party an opportunity to ensure that the r eport does not contain any 
information that it has designated as BCI.   
 
                                                
1 These procedures are adopted according to, and are an integral part of, the Panel's Working 
Procedures of 4 July 2016.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-11 - 
 
  ANNEX  A-4 
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MAR KETING AND SALE 
OF TUNA AND TUNA PRO DUCTS  
(WT/DS381)  
Recourse  to Article 21.5 of the DSU by the United States  
Second  Recourse to Article 21.5 of the DSU by Mexico  
 
ADDITIONAL WORKING P ROCEDURES OF THE PAN ELS ON PARTIALLY OPE N MEETINGS  
Adopted on 22 December 2016  
 
 
Having regard to paragraph 3 of the Panels' Working Procedures, and having received a 
request from the Unit ed States for the adoption of additional working procedures to facilitate the 
lifting of the confidentiality of its statements at the Panels' meeting with the parties, the Panels 
have, after consulting with the parties, adopted the following Additional Wor king Procedures:  
1 DEFINITIONS  
1.1 For the purposes of these Additional Working Procedures:  
a. "Disclosing party" means any party that wishes to lift the confidentiality of its 
statements at the Panels' meeting with the parties;  
b. "Non-disclosing party" means a ny party that wishes to maintain the confidentiality of its 
statements at the Panels' meeting with the parties;  
c. "Disclosing third party" means any third party that wishes to lift the confidentiality of its 
statements at the Panels' third party session.  
d. "Non-disclosing third party" means any third party that wishes to maintain the 
confidentiality of its statements at the Panels' third party session.  
e. "Statement" means:  
i. A party's opening statement;  
ii. A party's closing statement;  
iii. A party's responses to question s from the Panels concerning (a) issues of law; 
and (b) the disclosing party's own exhibits, arguments, or positions (referred to 
in these Working Procedures as a "paragraph 1.1(e)(iii) question");  
excluding, however, any part or section of those items tha t discloses, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Any part or section of those items that discloses, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party shall, prior to the delayed viewing, be redacted in accordance with 
the procedures provided for in Section 3.2 of these Additional Working Procedures.  
f. "Third party statement" means:  
i. A third party's statement at the Panels' third party session;  
ii. A third party's responses to a paragraph 1.1(e)(iii) question;  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-12 - 
 
   excluding, however, any part or section of those items that discloses, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party  or non -
disclosing third party. Any part or section of the items that discloses, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party shall, prior to the delayed viewing, be redacted in accor dance with 
the procedures provided for in Section 3.2 or 4.3 of these Additional Working 
Procedures.  
g. "Delayed viewing" means the broadcasting by the WTO Secretariat, after the conclusion 
of the Panels' meeting with the parties and third party session, of t he statements of 
disclosing parties and disclosing third parties that have been recorded and redacted in 
accordance with Sections 3 and 4 of these Additional Working Procedures.  
2 GENERAL  
2.1 The delayed viewing shall be held in a room inside the WTO Secr etariat building. It will 
be open to officials of WTO Members and Observers, and, upon registration with the 
Secretariat, to accredited journalists, accredited representatives of non -governmental 
organizations, and other interested persons, including membe rs of the public. The names of 
all persons registered to attend the delayed viewing will be shared with the parties. To this 
effect, the Secretariat will place a notice on the WTO website, informing the public of the 
delayed viewing and including a link th rough which members of the public can register to 
attend. The notice shall specify: (a) that the names of all persons registered to attend the 
delayed viewing will be shared with the parties; and (b) that no person attending the 
delayed viewing is allowed to use electronic devices to record any portion of the broadcast.  
2.2 The date of the delayed viewing will be decided by the Panels after consulting with the 
parties. The redacted recording will be broadcast once, beginning with the floor (i.e. original) 
language and followed immediately by the translated Spanish or English language version.  
3 PANELS' SUBSTANTIVE MEETING WITH THE PAR TIES  
3.1 Opt-in procedures  
3.1 Any party wishing to be a disclosing party shall notify the Panels in writing prior to the 
Panels' substantive meeting with the parties, by a date to be determined by the Panels.  Any 
party that does not notify the Panels of its intention to be a disclosing party by that deadline 
will be treated by the Panels as a non -disclosing party.  
3.2 Recordi ng of Statements  
3.2 In accordance with the usual practice of the WTO, the audio of the entirety of the 
Panels' meeting with the parties (including the floor recording and interpretation) shall be 
recorded and entered into the dispute record.  
3.3 The entir ety of a disclosing party's opening and closing statements shall be video 
recorded, except as provided for in paragraph 3.9.  
3.4 A disclosing party's responses to paragraph 1.1(e)(iii) questions shall also be video 
recorded, except as provided for in parag raph 3.5 and 3.9. A disclosing party shall advise 
the Panels, prior to responding to a paragraph 1.1(e)(iii) question, if its response to that 
question discloses, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or no n-disclosing third party.  
3.5 To facilitate the implementation of paragraph 3.4:  
a. The Panels shall, when sending advance questions to the parties, indicate which 
questions they consider meet the definition in paragraph 1.1(e)(iii) of these Additional 
Workin g Procedures.  
b. Spontaneous questions asked by the Panels during the course of the meeting shall not 
be recorded.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-13 - 
 
  3.6 The video recording foreseen under paragraphs 3.3 and 3.4 shall be entered into the 
dispute record.  
3.7 The video recording foreseen under p aragraphs 3.3 and 3.4 shall be made from a 
single camera. The camera shall be set at the same position, zoom, and focus throughout 
the meeting.  
3.8 In addition to the video recording foreseen under paragraphs 3.3 and 3.4, a secondary 
video recording, using  a separate video recording channel but captured from the video 
camera referenced in paragraph 3.6 will be made of the entirety of the Panels' meeting with 
the parties for back -up purposes. Except where the primary video recording is technically 
defective,  this secondary video will not be used when the Secretariat compiles the video for 
the delayed viewing, and will be deleted once the procedures provided for in Section 3.3 of 
these Additional Working Procedures have been completed.   
3.9 A disclosing party  shall advise the Panels prior to addressing its own or another 
party's BCI in its statements. When a disclosing party so advises, both video recordings will 
be discontinued for the relevant portion of the statement, after which the video recordings 
will b e resumed. In the interests of ensuring an efficient meeting, a disclosing party is 
invited to structure its statements so as to first deliver a non -BCI portion before delivering a 
portion that contains BCI. At the conclusion of a disclosing party's statem ent, the Panels' will 
ask the non -disclosing party to confirm that none of its own BCI was disclosed during the 
video recorded portion of the statement.  
3.3 Redaction of Recorded Statements  
3.10 In order to ensure, pursuant to paragraph 3 of the Panels' Wo rking Procedures, that 
disclosure by a disclosing party of its statements at the Panels' meeting with the parties 
does not impair or otherwise interfere with either the rights of a non -disclosing party or non -
disclosing third party or the integrity and pro mptness of the dispute settlement process, 
statements recorded pursuant to Section 3.2 of these Additional Working Procedures shall be 
redacted as described in this Section prior to delayed viewing.  
3.11 A disclosing party shall indicate, in the final writ ten version of its opening and closing 
statements, which paragraphs disclose, directly or indirectly, the exhibits, arguments, or 
positions of a non -disclosing party or non -disclosing third party. For example, a disclosing 
party could use the following phr ases in the final written version of its opening and closing 
statements: *Beginning  of discussion of [non -disclosing party]'s submissions*  and *End of 
discussion of [non -disclosing party]'s submissions* . Paragraphs that disclose, directly or 
indirectly, th e exhibits, arguments, or positions of a non -disclosing party or non -disclosing 
third party shall be redacted from the video recording. In order to avoid unnecessary 
discontinuity in the delayed viewing, a disclosing party is invited to structure its state ments 
in such a way as to separate those statements that disclose, directly or indirectly, the 
exhibits, arguments, or positions of a non -disclosing party or non -disclosing third party.  
3.12 Pursuant to paragraph 3.4 of these Additional Working Procedures,  where a response 
to a paragraph 1.1(e)(iii) question discloses, directly or indirectly, the exhibits, arguments, 
or positions of a non -disclosing party or non -disclosing third party, that response shall be 
redacted from the video recording.  
3.13 Following  the conclusion of the Panels' meeting with the parties, the Panels will review 
the recorded statements and the final written versions of a disclosing party's opening and 
closing statements. Using the paragraph numbers contained in the final written versio n of a 
disclosing party's opening and closing statements, the Panels will identify to the parties any 
paragraphs additional to those identified by the disclosing party pursuant to paragraph 3.11 
that, in the view of the Panels, disclose, directly or indire ctly, the exhibits, arguments, or 
positions of a non -disclosing party or non -disclosing third party. These paragraphs will be 
redacted from the video recording, except as provided for in paragraph 3.16.   
3.14 Following the conclusion of the Panels' meetin g with the parties, the Panels will review 
the video recording of a disclosing party's responses to paragraph 1.1(e)(iii) questions. The 
Panels will identify to the parties, by reference to the question number, any responses 
additional to the responses ide ntified by the disclosing party pursuant to paragraph 3.4 of WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-14 - 
 
  these Additional Working Procedures that, in the view of the Panels, disclose, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing 
third part y. These responses will also be redacted from the video recording, except as 
provided for in paragraph 3.16.  
3.15 If a non -disclosing party considers that any part of the video -recorded statements not 
identified by a disclosing party (pursuant to paragrap hs 3.11 and 3.4 of these Additional 
Working Procedures) or redacted by the Panels (pursuant to paragraph 3.13 or 3.14 of these 
Additional Working Procedures) discloses, directly or indirectly, the exhibits, arguments, or 
positions of a non -disclosing party  or non -disclosing third party, that party may bring such 
part of the video -recorded statements to the attention of the Panels (through the 
Secretariat) and the disclosing party. Such notification should be made within a deadline to 
be specified by the Pan els, and should identify the particular paragraph of the relevant 
opening or closing statement (or, where relevant, third party statement), or the particular 
response by question number, and indicate how, in the view of the notifying party, it 
discloses, d irectly or indirectly, the exhibits, arguments, or positions of a non -disclosing 
party or non -disclosing third party. Before the Panels make a decision regarding any 
identified issue, the disclosing party will be afforded an opportunity to explain where 
appropriate why, in its view, the identified part of the video -recorded statements does not 
disclose, directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party 
or non -disclosing third party.  
3.16 If a disclosing party considers  that any part of the video -recorded statements 
redacted by the Panels (pursuant to paragraph 3.13 or 3.14 of these Additional Working 
Procedures) does not disclose, directly or indirectly, the exhibits, arguments, or positions of 
a non -disclosing party or  non-disclosing third party, that party may bring such part of the 
video -recorded statements to the attention of the Panels (through the Secretariat) and the 
non-disclosing party. Such notification should be made within a deadline to be specified by 
the Pa nels, and should identify the particular paragraph of the relevant opening or closing 
statement (or, where relevant, third party statement), or the particular response by 
question number, and indicate how, in the view of the notifying party, it does not di sclose, 
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Before the Panels make a decision regarding any identified issue, the 
non-disclosing party will be afforded an opportunity to exp lain where appropriate why, in its 
view, the identified part of the video -recorded statements does disclose, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing 
third party.  
3.17 The Panels are mindful  of the need to ensure the promptness of the dispute 
settlement process. Therefore, in the interests of ensuring the workability and efficiency of 
these Additional Working Procedures, where a paragraph of a disclosing party's opening or 
closing statements,  or a disclosing party's response to a paragraph 1.1(e)(iii) question, is 
found to disclose, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party, the entire paragraph or response will be 
redacted, even if the paragraph or response also contains content that does not disclose, 
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party.  
3.18 If, in order to utilize the procedures provi ded for in paragraphs 3.15 or 3.16, a party 
considers it necessary to review a specific part of the un -redacted video -recording (e.g. the 
video -recording of a particular response to a question from the Panels), that party may 
request to view that part of t he video -recording. Such request must be made in sufficient 
time to ensure that the party is able to comply with the deadlines determined by the Panels 
in respect of paragraphs 3.15 and 3.16. Both parties will be invited to any screening of 
part(s) of the pre-redacted video -recording.  
3.19 If either party requests to view the redacted video recording prior to the delayed 
viewing, the Panels will invite both parties to attend a preview session, accompanied by a 
representative of the Secretariat, on the premi ses of the WTO. The purpose of the preview 
screening is to enable the parties to confirm that the Panels have made the redactions 
required under this Section. If either party considers that one or more of the redactions 
required under this Section has not been made, it shall inform the Panels immediately, 
preferably at the preview screening but in any case no more than 24 hours after the preview WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-15 - 
 
  session. After hearing the views of the other party, the Panels will decide whether or not to 
modify the redacted  video -recording. The preview session will be held on a date to be 
determined by the Panels in consultation with the parties.  
3.20 The Panels retain the right to modify these procedures after consulting with the 
parties.  
4 PANELS' SESSION WITH  THIRD PARTIE S 
4.1 Opt-in procedures  
4.1 Any third party wishing to be a disclosing third party shall notify the Panels in writing 
prior to the Panels' session with third parties, by a date to be determined by the Panels.  
Any third party that does not notify the Panel s of its intention to be a disclosing third party 
by that deadline will be treated by the Panels as a non -disclosing third party.  
4.2 Recording of Third Party Statements  
4.2 In accordance with the usual practice of the WTO, the audio of the entirety of th e 
Panels' session with third parties (including the floor recording and interpretation) shall be 
recorded and entered into the dispute record.  
4.3 The entirety of a disclosing third party's statement shall be video recorded, except as 
provided for in parag raph 4.9.  
4.4 A disclosing third party's responses to paragraph 1.1(e)(iii) questions shall also be 
video recorded, except as provided for in paragraph 4.5 and 4.9. A disclosing third party 
shall advise the Panels, prior to responding to a paragraph 1.1(e) (iii) question, if its 
response to that question discloses, directly or indirectly, the exhibits, arguments, or 
positions of a non -disclosing party or non -disclosing third party.  
4.5 To facilitate the implementation of paragraph 4.4:  
a. The Panels shall, when  sending advance questions to the third parties, indicate which 
questions they consider meet the definition in paragraph 1.1(e)(iii) of these Additional 
Working Procedures.  
b. Spontaneous questions asked by the Panels during the course of the meeting shall no t 
be recorded.  
4.6 The video recording foreseen under paragraphs 4.3 and 4.4 shall be entered into the 
dispute record.  
4.7 The video recording foreseen under paragraphs 4.3 and 4.4 shall be made from a 
single camera. The camera shall be set at the same zoo m and focus throughout the 
meeting.  
4.8 In addition to the video recording foreseen under paragraphs 4.3 and 4.4, a secondary 
video recording, using a separate video recording channel but captured from the video 
camera referenced in paragraph 4.7 will be m ade of the entirety of the Panels' session with 
third  parties for back -up purposes. Except where the primary video recording is technically 
defective, this secondary video will not be used when the Secretariat compiles the video for 
the delayed viewing, a nd will be deleted once the procedures provided for in Section 4.3 of 
these Additional Working Procedures have been completed.   
4.9 A disclosing third party shall advise the Panels prior to addressing a party's BCI in its 
statements. When a disclosing thi rd party so advises, both video recordings will be 
discontinued for the relevant portion of the statement, after which the video recordings will 
be resumed. In the interests of ensuring an efficient meeting, a disclosing third party is 
invited to structure  its third party statement so as to first deliver a non -BCI portion before 
delivering a portion that contains BCI.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-16 - 
 
  4.3 Redaction of Recorded Third Party Statements  
4.10 In order to ensure, pursuant to paragraph 3 of the Panels' Working Procedures, that 
disclosure by a disclosing third party of its statements at the Panels' session with third 
parties does not impair or otherwise interfere with either the rights of a non -disclosing party 
or non -disclosing third party or the integrity and promptness of the di spute settlement 
process, statements recorded pursuant to Section 4.2 of these Additional Working 
Procedures shall be redacted as described in this Section prior to delayed viewing.  
4.11 A disclosing third party shall indicate, in the final written version  of its third party 
statement, which paragraphs disclose, directly or indirectly, the exhibits, arguments, or 
positions of a non -disclosing party or non -disclosing third party. For example, a disclosing 
third party could use the following phrases in the fi nal written version of its third party 
statement: *Beginning of discussion of [non -disclosing party]'s submissions* and *End of 
discussion of [non -disclosing party]'s submissions*.  Paragraphs that disclose, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing 
third party shall be redacted from the video recording. In order to avoid unnecessary 
discontinuity in the delayed viewing, a disclosing third party is invited to structure its third 
party statement in such a way as to separate those statements that disclose, directly or 
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing 
third party.  
4.12 Pursuant to paragraph 4.4 of these Additional Working Procedures, wher e a third 
party's response to a paragraph 1.1(e)(iii) question discloses, directly or indirectly, the 
exhibits, arguments, or positions of a non -disclosing party or non -disclosing third party, that 
response shall be redacted from the video recording.  
4.13 Following the conclusion of the Panels' session with third parties, the Panels will 
review the recorded statements and the final written version of each disclosing third party's 
third party statement. Using the paragraph numbers contained in the final wri tten version of 
a disclosing third party's third party statement, the Panels will identify to the relevant 
disclosing third party, copying the parties and third parties, any paragraphs additional to 
those identified by the disclosing third party pursuant t o paragraph 4.11 that, in the view of 
the Panels, disclose, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party. These paragraphs will be redacted from the 
video recording, except as provide d for in paragraph 4.16.   
4.14 Following the conclusion of the Panels' session with third parties, the Panels will 
review the video recording of a disclosing third party's responses to paragraph 1.1(e)(iii) 
questions. The Panels will, by reference to the question number, identify to the relevant 
disclosing third party, copying the parties and third parties, any responses additional to the 
responses identified by the disclosing third party pursuant to paragraph 4.4 of these 
Additional Working Procedures tha t, in the view of the Panels, disclose, directly or indirectly, 
the exhibits, arguments, or positions of a non -disclosing party or non -disclosing third party. 
These responses will also be redacted from the video recording, except as provided for in 
paragra ph 4.16.  
4.15 If a non -disclosing party or non -disclosing third party considers that any part of a 
video -recorded third party statement or third party response to a paragraph 1.1(e)(iii) 
question  not identified by a disclosing third party (pursuant to pa ragraphs 4.11 and 4.4 of 
these Additional Working Procedures) or redacted by the Panels (pursuant to paragraph 4.13 
or 4.14 of these Additional Working Procedures) discloses, directly or indirectly, its exhibits, 
arguments, or positions, that party or thir d party may bring such part of the video -recorded 
statements to the attention of the Panels (through the Secretariat) and the relevant 
disclosing third party. Such notification should be made within a deadline to be specified by 
the Panels, and should iden tify the particular paragraph of the relevant third party 
statement, or the particular response by question number, and indicate how, in the view of 
the notifying party, it discloses, directly or indirectly, its exhibits, arguments, or positions. 
Before th e Panels make a decision regarding any identified issue, the relevant disclosing 
third party will be afforded an opportunity to explain where appropriate why, in its view, the 
identified part of the video -recorded statements does not disclose, directly or indirectly, the 
exhibits, arguments, or positions of a non -disclosing party or non -disclosing third party.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- A-17 - 
 
  4.16 If a disclosing third party considers that any part of the video -recorded statements 
redacted by the Panels (pursuant to paragraph 4.13 or 4.14  of these Additional Working 
Procedures) does not disclose, directly or indirectly, the exhibits, arguments, or positions of 
a non -disclosing party or non -disclosing third party, that third party may bring such part of 
the video -recorded statements to the attention of the Panels (through the Secretariat) and 
any relevant non -disclosing party or non -disclosing third party. Such notification should be 
made within a deadline to be specified by the Panels, and should identify the particular 
paragraph of the rel evant third party statement, or the particular response by question 
number, and indicate how, in the view of the notifying third party, it does not disclose, 
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Before the Panels make a decision regarding any identified issue, any 
relevant non -disclosing party or non -disclosing third party will be afforded an opportunity to 
explain where appropriate why, in its view, the identified part of the  video -recorded 
statements does disclose, directly or indirectly, its exh ibits, arguments, or positions.  
4.17 The Panels are mindful of the need to ensure the promptness of the dispute 
settlement process. Therefore, in the interests of ensuring the workabi lity and efficiency of 
these Additional Working Procedures, where a paragraph of a disclosing third party's third 
party statement, or a disclosing third party's response to a paragraph 1.1(e)(iii) question, is 
found to disclose, directly or indirectly, the  exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party, the entire paragraph or response will be 
redacted, even if the paragraph or response also contains content that does not disclose, 
directly or indirectly, the exhib its, arguments, or positions of a non -disclosing party or non -
disclosing third party . 
4.18 If any party or third party requests to view the redacted video recording of the Panels' 
session with third parties prior to the delayed viewing, the Panels will inv ite the parties and 
the third parties to attend a preview session, accompanied by a representative of the 
Secretariat, on the premises of the WTO. The purpose of the preview screening is to enable 
the parties to confirm that the Panels have made the redact ions required under this Section.  
4.19 The Panels retain the right to modify these procedures after consulting with the 
parties.  
_______________  
 
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- B-1 - 
 
  ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Executive summary of the arguments of the United States  B-2 
Annex  B-2 Executive summary of the arguments of Mexico  B-13 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- B-2 - 
 
  ANNEX  B-1 
EXECUTIVE SUMMARY OF  THE ARGUMENTS  OF THE UNITED STATES  
I. THE AMENDED MEASURE IS CONSISTENT WITH A RTICLE 2.1 OF THE 
TBT AGREEMENT  
A. The Determinati on Provisions Are Even -Handed in Both Design and 
Application  
1. The Appellate Body found that the detrimental impact of the U.S. dolphin safe labeling 
measure did not stem exclusively from legitimate regulatory distinctions based only on the design 
of the det ermination provisions.  As such, following the release of the Appellate Body report, the 
United States carefully reviewed the determination provisions, both in design and application.   
2. As to design, the United States accepted the DSB recommendations and r ulings and 
amended the determination provisions pursuant to the 2016 IFR in accordance with the Appellate 
Body's findings.  Mexico does not appear to disagree with this conclusion, and thus the issue does 
not appear to be in dispute in this proceeding.  
3. As to application, the United States also reviewed the readily available evidence to 
determine whether there is a basis for making a determination with respect to any particular 
fishery.  With regard to the first prong of the determination provisions, the re sult of NOAA's 
analysis was that there is no evidence that there are fisheries that meet the first prong of the 
determination provisions, i.e., in which there is a "regular and significant association between 
dolphins and tuna" similar to that in the ETP.  With respect to the second prong, the available 
evidence suggests that certain gillnet fisheries in the Indian Ocean region meet that standard.   
4. The text of the DPCIA is not explicit as to the metric whereby "regular and significant" 
dolphin mortality or  serious injury should be assessed or as to the benchmark against which levels 
of dolphin mortality should be measured to determine whether they are "regular and significant."  
Consequently, it was necessary to consider what metric and benchmark were most in keeping with 
the purposes of the U.S. dolphin safe labeling measure, in light of the available evidence.  Below, 
the United States explains: (1) the metric determined to be most appropriate; (2) the benchmark 
determined to be most appropriate; and, (3) the evaluation of different tuna fisheries on the basis 
of the available evidence.   
5. First, in considering the most appropriate metric, NOAA concluded that a per set measure of 
dolphin mortality on a fishery -by-fishery basis reflects the frequency with whi ch captains would 
have to make a determination that a dolphin was killed or seriously injured in a particular fishery.  
Such a metric is consistent with the purpose and structure of the U.S. measure because it 
assesses the effect of a tuna fishery on indiv idual dolphins and because it is tailored to the 
frequency with which a vessel captain in a particular fishery would have to detect that a dolphin 
had been killed or seriously injured in a particular set.  Specifically, where a captain would have to 
identi fy a dolphin mortality or serious injury more frequently, because more sets cause a direct 
dolphin harm, the determination provisions, if based on a per set metric, would provide that an 
observer certification (and enhanced tracking and verification) may b e necessary for tuna product 
to meet the "dolphin safe" standard.  Such a metric is also practical, as it used by many different 
regulating authorities, including by RFMOs, to assess the effect on dolphins (and other bycatch 
species) of tuna fishing in a p articular fishery, meaning that there is a considerable amount of per 
set data for different fisheries in different oceans that is readily available.   
6. Second , having identified an appropriate metric, it was necessary to determine the 
appropriate benchmark  against which fisheries would be evaluated to determine whether dolphin 
mortalities, on a per set basis, were "regular and significant."  In this regard, the United States 
recalled the suggestion of the Appellate Body that, to ensure even -handed treatment  of different 
fisheries, the benchmark should refer to the ETP large purse seine fishery.  NOAA determined that 
the most appropriate benchmark was a 20 -year average of direct dolphin mortalities caused by WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  dolphin sets in the ETP, beginning in 1997 and endi ng at the present day.  In terms of promoting 
the objective of the measure while ensuring even -handed treatment of different fisheries, this 
approach has several advantages, namely: (1) averages are generally a more reliable basis on 
which to make scientif ic determinations than single -year figures; (2) it takes into account both the 
levels of mortality that were occurring at the time the enhanced observer and tracking and 
verification requirements were imposed and current levels; and, (3) it is conservative  in nature, 
which is consistent with the objective of dolphin protection, because it takes into account any 
declines in direct mortalities due to dolphin sets in the ETP that  have occurred over the past 
20 years.  
7. Third, on this basis, the United States con sidered the available fishery -specific evidence 
concerning per set mortalities in fisheries other than the ETP large purse seine fishery.  As is 
shown by the relevant evidence on the record in this dispute, no evidence suggests that, on a per 
set basis, an y other fishery causes close to the level of dolphin mortalities caused by dolphin sets 
in the ETP, as an average since 1997.  Thus, no evidence suggested that any fishery for which 
fishery -specific evidence was available exhibited "regular and significant " dolphin mortality.  
8. However, evidence from certain gillnet fisheries in the Indian Ocean area suggested that 
levels of mortality are occurring such that, if per set data were available, the per set mortality rate 
likely would meet or exceed the "regular a nd significant" standard.  In particular, several exhibits 
presented in the first compliance proceeding suggested an alarming level of dolphin mortality was 
occurring in the Indian and Pakistani gillnet fisheries in the Indian Ocean, as well as in neighbor ing 
fisheries of other countries.  The United States attempted to find per set data on these fisheries, 
but none was available.  Consequently, the United States considered whether any alternative 
metrics might act as a proxy for per set data and enable an evaluation of those fisheries.  NOAA 
determined that data were available to support evaluation under a dolphin bycatch rate metric, 
i.e., the number of dolphins killed per ton of target catch (tuna) landed.  While this is not a perfect 
metric for this anal ysis, it served as a reasonable proxy for the per set data.  On September 28, 
2016, NOAA issued a determination, on the basis of the best information available, that a "regular 
and significant" mortality of dolphins was occurring in these fisheries.  The d etermination provided 
that any tuna product produced from these fisheries to be marketed as dolphin safe in the United 
States would have to be accompanied by a certification by an observer from a qualified and 
authorized observer program and a certificatio n attesting to the catch documentation, the 
substance of the dolphin safe labeling standards, and the chain of custody information.  
9. Thus, in the context of amending the design determination provisions, the United States 
evaluated their application based on  an appropriate metric and benchmark.  The evidence 
confirmed that, for all the fisheries for which per set mortality data is available, a positive 
determination was not required.  For certain gillnet fisheries, however, this data was not available, 
but ot her relevant data suggested that these fisheries would meet the standard of "regular and 
significant mortality."  On this basis, and in the absence of contradictory information submitted by 
the countries, NOAA designated these fisheries.  Thus, the applica tion of the determination 
provision, like its design, is in compliance with Article 2.1.  
10. In the first compliance proceeding, the design of the determination provisions was the sole 
basis on which the Appellate Body found that the detrimental impact of the measure did not stem 
exclusively from legitimate regulatory distinctions.  In addition to addressing the DSB 
recommendation and the determination provisions, the 2016 IFR has also addressed the other 
concerns identified during the first compliance proceedi ng, even though these concerns did not 
form the basis for the DSB recommendation at issue.  Looked at independently, the regulatory 
distinctions made by the eligibility criteria, the certification requirements, and the tracking and 
verification requirement s are even -handed.   
B. The Appropriate Legal Test for Even -Handedness in This Dispute  
11. For purposes of this dispute, as the Appellate Body has explained, the test for even -
handedness is whether the regulatory distinctions, when viewed as a whole, are calib rated to the 
differences in risks to dolphins of overall harms between setting on dolphins in the ETP large purse 
seine fishery, on the one hand, and other fishing methods in other oceans on the other.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  12. Mexico rejects the Appellate Body's analysis.  In part icular, Mexico rejects the Appellate 
Body's conclusions that:  "there is  a special relevance in these Article 21.5 proceedings in 
conducting an assessment" of whether the differences in labelling conditions are calibrated to the 
risks to dolphins; and a me asure " will not violate Article 2.1  if it is properly 'calibrated' to the risks 
to dolphins arising from different fishing methods in different areas of the oceans."  
13. First, Mexico gives no "special relevance" to the Appellate Body's calibration test. Rathe r, in 
Mexico's view, whether the differences in labeling conditions are calibrated to differences in overall 
harm to dolphins is merely "one element" of the legal test for even -handedness that the Panels 
should apply.  Indeed, whether the measure is calibr ated to the overall harm is not even the most 
important test under Mexico's approach, as Mexico suggests that the key inquiry is whether 
differences in labeling conditions can be reconciled with the objectives of the measure (irrespective 
of the risk).  Mo reover, Mexico appears to reject the application of the Appellate Body's calibration 
test for purposes of examining the certification requirements and tracking and verification 
requirements.  
14. Second, Mexico implicitly – but repeatedly – alleges that the mea sure will violate Article 2.1 
even if  it is calibrated by contending that the measure is inconsistent with Article 2.1 for reasons 
unrelated to whether it is calibrated to risks of harm to dolphins.  Thus, in its first written 
submission, Mexico argues tha t all three regulatory distinctions are inconsistent with Article 2.1 
because they are "at odds with the objectives and the design, architecture and revealing structure 
of the tuna measure." While in its second submission Mexico claims that the measure is 
inconsistent with Article 2.1 because it is "inconsistent with the objectives of sustainable 
development," as well as the fact that the measure does not apply "strict" certification and 
tracking and verification requirements to tuna product produced from f ishing methods that result 
in above de minimis  harms to dolphins or in fisheries subject to (allegedly) substandard municipal 
regulations.  
C. Mexico's Proposed Legal Tests for Even -Handedness Are Incorrect  
15. First, Mexico conceives of the even -handedness tes t as a multi -factor analysis where "one of 
the[] questions" is whether the measure is calibrated, and "[a]nother question is whether the 
regulatory distinctions are reconciled with the objectives of the measure."  In Mexico's view, these 
two questions "do not create independent or discrete legal tests," but rather are different elements 
that are weighed and balanced against one another to determine whether the measure is even -
handed.  Mexico misunderstands the Appellate Body's even -handedness analysis as it  applies in 
this dispute.   
16. While the Appellate Body has recognized that there may be different approaches a panel 
could employ to test whether the challenged measure is even -handed, the facts and circumstances 
of a particular dispute will dictate the appr oach that is needed.  In this dispute , the Appellate Body 
"considered appropriate an analysis" of whether the measure "is properly 'calibrated' to the risks 
to dolphins arising from different fishing methods in different areas of the oceans."  The fact tha t, 
in theory, there are different ways to test for even -handedness does not mean, as Mexico 
suggests, that the Panels must explore all these options in this dispute or that doing so would be 
appropriate.   
17. Indeed, what Mexico seems to be arguing is that th e Appellate Body has required the Panels 
to face the same situation that the first compliance panel did with regard to the certification 
requirements where that panel balanced the two analyses.  The Appellate Body, however, reversed  
this analysis, finding that the majority did not conduct the appropriate analysis to determine the 
even-handedness of the certification requirements.  Further, if Mexico were correct that the 
Appellate Body has required these Panels to engage in this multifactor balancing test, the 
Appellate Body's analysis of the  eligibility criteria would also have been fundamentally different.   
18. In this dispute, the question of whether the detrimental impact stems exclusively from 
legitimate regulatory distinctions is not answered by conductin g an assessment that fails to take 
into account differences in risks to dolphins.  Rather, the question of even -handedness is answered 
by determining whether those differences in the regulatory distinctions "can be explained as being 
properly tailored to, or commensurate with, the differences in such risks in the light of the 
objective of protecting dolphins from adverse effects arising in different fisheries."  In this regard, WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  it is clear that the calibration analysis, as set out by the Appellate Body, alr eady takes into account 
the dual objectives of the measure.  Specifically, the Appellate Body's test examines whether the 
measure is calibrated to the risk of harm to dolphins as a way of explaining the differences in 
regulatory distinctions.  Dolphin prot ection, including through consumer information, is the main 
substantive objective of the measure, and label accuracy is a means of ensuring that end.  
Consequently, if the measure is appropriately calibrated to the risks to dolphins in different ocean 
areas, then the regulatory distinctions of the measure are consistent with the measure's 
objectives.  Additionally, the fact that the Appellate Body analysis requires the same calibration 
test to determine whether the measure reflects arbitrary or unjustifiabl e discrimination for 
purposes of the chapeau of Article XX further confirms that, for purposes of this dispute, the 
analysis is not what Mexico claims.  
19. Second, Mexico argues that the Panels should adopt different tests – not related to risks to 
dolphins, namely, "the risks of inaccurate information being provided" – to determine the even -
handedness of the certification requirements and tracking and verification requirements than it 
should apply for the eligibility criteria.  Mexico's arguments lack merit f or several reasons.  As 
explained above, the Appellate Body's calibration analysis already takes into account the 
objectives of the measure.  Further, different tests do not apply to different regulatory distinctions.  
In the first compliance proceeding, t he Appellate Body faulted that panel for applying a modified 
calibration test to the eligibility criteria and a different test to the certification requirements and 
tracking and verification requirements, emphasizing that the same test must be applied to e ach of 
these "cumulative and highly interrelated" regulatory distinctions.  Mexico's approach urges the 
Panels to conduct an incorrect "segmented analysis" that the Appellate Body has already rejected.  
Moreover, the tests that Mexico claims must be used t o determine whether the certification 
requirements and tracking and verification requirements are even -handed are incorrect.  
Specifically, Mexico's argument (that tuna product produced by a  fishing method that causes 
above de minimis  harm to dolphins mus t be ineligible for the label) is a rejection of the calibration 
analysis.  Similarly, Mexico's other test, which posits that "strict" certification and tracking and 
verification requirements need to be applied to tuna caught in all fisheries where the lev el of 
applicable municipal fishery regulations falls below some (unspecified) minimum standard, is also a 
rejection of the calibration argument as it does not depend on an analysis of the differing risks to 
dolphins.  
20. Third, Mexico's argument with regard to  "environmental sustainability" is bereft of support, 
as to both the law and the facts.  
D. The Eligibility Criteria Are Calibrated to the Risk to Dolphins Posed by 
Different Fishing Methods  
21. The United States has established that the eligibility criteria ar e calibrated to the differences 
in risk to dolphins of overall harm.  Specifically, the United States has established that: (1) setting 
on dolphins is a unique fishing method that is inherently unsafe for dolphins; (2) fishing methods 
that can produce tuna  product eligible for the U.S. dolphin safe label do not pose equivalent risks 
to dolphins; and (3) the eligibility criteria are commensurate with the differences in risk.  
1. Setting on Dolphins Is a Unique Fishing Method that Is Inherently 
Unsafe for Dolp hins 
22. The United States has shown that setting on dolphins is a fishing method that is particularly 
harmful to dolphins for three reasons: (1) it intentionally targets dolphins, such that dolphins must 
be put at risk of direct and indirect harm in every dol phin set; (2) it causes a unique category of 
unobservable harms that may occur in every dolphin set, regardless of whether a dolphin is 
directly killed or injured; and, (3) it continues to cause a high level of direct dolphin mortalities.  
23. First, it is well -established that setting on dolphins is the only fishing method that 
intentionally targets dolphins to catch fish.  Thus, every dolphin set involves a sustained 
interaction between a large purse seine vessel (and its speedboats and often helicopters) and a 
herd of dolphins whereby the vessel chases about 600 dolphins for up to 2 hours, ultimately 
capturing about 300 -400 of them.  Other fishing methods, by contrast, can be used with no effect 
on dolphins at all.  Furthermore, vessels may interact with a sma ll number of dolphins only WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  incidentally and those other fishing methods can be conducted without putting any dolphin directly 
in danger.  
24. In this regard, Mexico is wrong to argue that the intentional nature of dolphin interactions is 
not relevant to the ris k profile of setting on dolphins.  Previous Appellate Body reports confirm that 
the analysis must be based on an assessment of the "overall levels of risk" caused by different 
fishing methods in different fisheries.  The first compliance panel confirmed th e relevance of the 
intentional nature of the dolphin interactions in dolphin sets, explaining that every set must 
involve a sustained interaction with hundreds of dolphins for up to several hours and that these 
interactions are inherently dangerous, as the y can cause significant unobservable harms, as well 
as direct mortalities and serious injuries.  There is, thus, no basis for excluding this feature of 
setting on dolphins from the analysis of the fishing method's risk profile.  
25. By contrast, as the first co mpliance panel recognized, other fishing methods in other 
fisheries do not intentionally target dolphins.  In particular, as the United States has explained, 
other fishing methods can be used without harm to dolphins.  Indeed, some fisheries – including 
certain handline, gillnet, longline, pole and line, and purse seine fisheries – pose no known, or only 
a remote, risk to any dolphins, due to the distribution of dolphins and the area where the fishery 
operates.  In many other tuna fisheries, including in pa rticular purse seine and longline fisheries, 
there is some known risk, but the vast majority of all sets occur without any dolphin interaction 
and, therefore, without putting any dolphin in danger.  Thus, the vast majority of fishing activities 
in these fi sheries involve no dolphins at all and, therefore, pose little or no risk of direct or indirect 
dolphin harms.  
26. Second , setting on dolphins causes a unique category of indirect, unobservable harms due 
to the chase and encirclement process.  Mexico argues th at such effects are "speculative and 
unproven" and claims that, to the extent conclusions are drawn concerning indirect effects caused 
by dolphin sets, the same conclusions "must be presumed in relation to other fisheries and fishing 
methods."  Further, Me xico claims that the actions that cause the unique unobservable effects of 
dolphin sets are actually positive because they make the method sustainable.  None of Mexico's 
arguments have merit, and Mexico is wrong to try to "appeal" the DSB recommendations a nd 
rulings in these proceedings.  
27. In this regard, Mexico is incorrect that if setting on dolphins is found to cause unobservable 
effects, then there must be a presumption that other fishing methods cause the same effects.  As 
the United States has explained , a significant body of peer -reviewed scientific literature concludes 
that setting on dolphins causes indirect, unobservable harms to dolphins due to the chase and 
encirclement process.  Such harms include reproductive effects, calf -cow separation, and phy sical 
harms induced by stress.  A 2007 article on the subject explained that a review of the existing 
literature showed, inter alia , that: (1) dolphin sets "entail well -recognized stressors in other 
mammals, especially wild animals," and that typical respo nses "to such disturbances include 
changes in metabolism, growth, reproduction, and immune status, any of which, alone or in 
combination, could significantly affect survival and reproduction"; (2) samples from dolphins 
caught in dolphin sets "showed cell d amage similar to that in heart muscle, indicative of a degree 
of capture myopathy that could lead to unobserved mortality in some cases"; and, (3) 
"developmental issues indicate that smaller calves (less than 1 year postpartum) may have more 
difficulty rem aining associated with the mother during fishery activities."  A 2010 study explained 
that there is evidence that the ETP large purse seine fishery "has been a significant factor in the 
lives of dolphins since its inception" and, in particular, "is influen cing reproduction in dolphin 
populations."  There are no such studies indicating similar indirect, unobservable mortalities 
caused by any other fishing method in any other fishery, and Mexico presents none.   
28. Mexico has presented no evidence undermining pr evious findings that setting on dolphins 
causes a unique category of unobservable harms due to the chase itself that are not caused by 
other fishing methods.  As a consequence, it is simply not possible for dolphin sets to be certified 
"dolphin safe" in th e sense of having caused no harm to dolphins, since unobservable harms may 
occur in each set, even without any direct dolphin mortality, but cannot be seen by a captain or 
observer.  Mexico's attempts to portray dolphin sets as a sustainable, positively re garded fishing 
method are misleading and not relevant to whether the method is dolphin safe.   
29. Third, setting on dolphins is a uniquely dangerous fishing method in terms of direct dolphin 
mortalities.  Over the past decade, dolphin sets by ETP large purse seine vessels have caused WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  several hundreds, and sometimes thousands, of direct dolphin mortalities per year.  Controlling for 
the level of effort, in order to facilitate comparison across fisheries, these figures translate to 
between 69.4 and 126.3 dolphin  mortalities per 1,000 dolphin sets.  This level of dolphin 
mortalities, being caused by 80 -90 vessels in approximately 10,000 sets per year, is generally 
unparalleled in other tuna fisheries.  
2.  Fishing Methods that Can Produce Tuna Product Eligible for  the 
U.S. Dolphin Safe Label Do Not Pose Equivalent Risks to Dolphins  
30. Fishing methods that produce tuna product potentially eligible for the dolphin safe label 
generally pose a lower level of risk to dolphins than setting on dolphins in the ETP because: (1 ) 
they are not intrinsically harmful to dolphins and can be carried out without involving any 
dolphins; (2) they do not cause the types of unobservable harms caused by the chase and 
encirclement process regardless of whether dolphins are directly killed; a nd, (3) the levels of any 
direct dolphin mortality they may cause are generally lower, on a per set basis, than those caused 
by dolphins sets under the AIDCP and certainly are not high enough to counterbalance the unique 
risks posed by dolphin sets and thu s equalize the risk profiles of dolphin sets and other fishing 
methods.  
31. In this regard, Mexico is wrong to argue that "where there is credible evidence that dolphins 
have been harmed by a fishing method, it must be assumed that there are widespread direct and 
indirect harms unless proven otherwise with absolute certainty ."  The Appellate Body found that 
calibration, not Mexico's "zero tolerance" benchmark, is the applicable test for whether the U.S. 
measure, including the eligibility criteria, is even -hande d.  Mexico has put forward no evidence 
suggesting any other fishing methods are intrinsically dangerous to dolphins or cause such 
unobservable harms.  Further, Mexico's evidence does not show that, as a general matter, other 
fishing methods cause the level  of direct dolphin mortalities caused by dolphin sets under the 
AIDCP.  
32. With respect to purse seine sets other than dolphin sets , all the available set -by-set data 
confirms that such a fishing method causes a much lower level of direct dolphin mortality tha n 
dolphin sets.  This is true for the Atlantic, Indian, western and central Pacific, and ETP Ocean purse 
seine fisheries where all of the evidence shows that levels of direct dolphin mortalities in these 
fisheries are well below those due to dolphin sets i n the ETP.  In this regard, the ETP large purse 
seine fishery itself provides the clearest example of why Mexico's arguments fail.  The evidence 
establishes that free school and floating object sets have accounted for over half of all sets in the 
ETP large  purse seine fishery in the past decade but have caused only 0.2%  of dolphin mortalities 
in the fishery – the other 99.8%  being caused by dolphin sets.  Mexico's failure to respond to this 
evidence – or even acknowledge its existence at all – is telling.  Purse seine sets other than 
dolphin sets thus cause significantly lower levels of direct mortality than dolphin sets and also put 
dolphins at risk less often and do not cause the unobservable harms that are caused by the chase 
and encirclement process.  
33. With respect to longline fishing , the evidence establishes that this fishing method can be 
used without causing any harms to dolphins, and that the risks to dolphins from longlining in 
general in different areas of the oceans are significantly lower than the risks to dolphins from 
setting on dolphins in the ETP large purse seine fishery.  While Mexico criticizes the United States 
for applying a "presumption," Mexico fails to introduce evidence suggesting that the U.S. evidence 
on the record is not correct and representative.  The United States has shown that, for example, in 
every tuna longline fishery for which data is available, the vast majority of sets (over 95 percent) 
occur without interacting with any dolphins.  Further, the United States has shown that for every 
tuna longline fishery for which evidence is available, observed direct dolphin mortalities constitute 
small fractions of those caused by dolphin sets in the ETP on a fishery -by-fishery basis.  Mexico 
has put forward no evidence contradicting the U.S. evidence.  
34. With respect to pole and line fishing , Mexico does not even appear to contest that such a 
fishing method causes less overall harm to dolphins than does setting on dolphins in the ETP large 
purse seine fishery.   
35. With respect to gillnet fishi ng, such a fishing method can produce tuna product that can be 
certified dolphin safe in the way that setting on dolphins cannot.  Unlike in dolphin sets, dolphins WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  are not an essential component of gillnet fishing and, therefore, gillnet sets, and even ent ire gillnet 
fisheries, can be conducted without interacting with and harming dolphins.  Further, as the first 
compliance panel correctly found and the Appellate Body confirmed, gillnet fishing is not capable of 
causing the types of unobservable harms to do lphins that setting on dolphins causes as a result of 
the "chase itself" even if no dolphins were directly observed to have been killed.  
36. Mexico is further incorrect to argue that the levels of mortality caused by gillnets in the 
Indian Ocean gillnet fisher ies supports a finding that all tuna product produced from gillnet fishing 
should be ineligible for the dolphin -safe label.  The evidence on the record concerning the Indian 
Ocean gillnet fisheries is not suggestive of bycatch rates in all gillnet fisherie s around the world.  
Dolphins are not evenly distributed throughout the world's oceans, and different fisheries of the 
same gear -type can have vastly different bycatch levels depending on their area of operation and 
spatial overlap with dolphin populations .  Some gillnet fisheries, in particular, are carried out in 
areas such that there is little or no known risk to any dolphin species.  Further, there are 
techniques that can reduce dolphin interactions in gillnet fisheries, and thereby reduce the 
potential  for dolphin harm.  Thus, gillnet fishing overall presents a lower risk to dolphins than 
dolphin sets.  
37. With respect to trawl fishing , the evidence establishes that trawl fishing does not cause a 
higher level of dolphin mortalities than dolphin sets in the ETP.  In particular, studies of trawl 
fisheries indicate that, where they are used to catch tuna, bycatch is generally rare.  One study 
commented that trawlers cause less mortality of marine mammals than other fishing methods, 
speculating that this might b e due to "the disturbance caused by the trawling action at the bottom 
and at midwater warning cetaceans before they get caught."  With respect to tuna pelagic pair 
trawling in particular, the FAO explained:  "In most cases [if it is] a single species fishe ry, bycatch 
rates of other species are low. . . .  On few fishing ground[s], the incidental catch of dolphins and 
marine mammals creates some problems."  
38. With respect to handline fishing , Mexico has not even argued that such a fishing method 
causes a higher  level of dolphin mortalities than setting on dolphins does in the ETP large purse 
seine fishery.  Indeed, Mexico points to no dolphin mortalities or other harms reportedly caused by 
handline fishing.  Rather, Mexico argues that handline vessels have been known to "chas[e]" 
dolphins and, therefore, if chasing dolphins is intrinsically harmful, "the tuna measure must 
disqualify tuna caught by handlines in association with dolphins in order to be even -handed."  
However, none of Mexico's evidence suggests that  handline fishing in general or in the Indian 
Ocean is harmful to dolphins at all, let alone as harmful as setting on dolphins in the ETP large 
purse seine fishery.  
3. The Eligibility Criteria Are Commensurate with the Differences in 
Risk  
39. The eligibility criteria are commensurate with the differences in risk to dolphins posed by 
setting on dolphins, on the one hand, and other fishing methods that produce tuna potentially 
eligible for the label, on the other.  First, the eligibility criteria distinguish bet ween the only fishing 
method that intentionally targets dolphins and those that do not.  Because it intentionally targets 
dolphins, setting on dolphins is, by its very nature, inherently unsafe to dolphins.  Other fishing 
methods by contrast, are not intri nsically dangerous, in that the intention of the fishing vessels is 
not to interact with dolphins (and, indeed, most sets occur without putting even one dolphin in 
danger).  Second, the eligibility criteria are commensurate with the differences in risk to dolphins 
of setting on dolphins and other fishing methods, as reflected in the number of dolphins directly 
endangered when such methods are employed.  Setting on dolphins endangers, on average, 
hundreds of dolphins each and every time the method is employe d.  Other fishing methods, by 
contrast, only very rarely endanger a single dolphin, illustrated by the fact that vessels interact 
with dolphins in less than 1 percent of sets in nearly every fishery for which evidence is available.  
Third, the eligibility criteria are commensurate with the differences in risk posed by setting on 
dolphins and other fishing methods because they deny eligibility to a fishing method that may 
cause massive unobservable harms every time it is employed, irrespective of whether a d olphin 
has been killed or injured or whether AIDCP restrictions are applicable, while allowing eligibility for 
those fishing methods that generally do not cause many of these types of harms at all, and do not 
cause any of these harms without a dolphin bein g killed or seriously injured.  Fourth, the eligibility 
criteria are commensurate with the differences in risk because they deny eligibility to a fishing 
method that causes a higher rate of observed mortalities and serious injuries while allowing WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  eligibili ty for those fishing methods that cause a lower rate of observed mortalities and serious 
injuries.  
40. For the reasons stated above, the eligibility criteria cannot support a finding of less favorable 
treatment under Article 2.1.  
E. The Certification Requireme nts Are Even -Handed  
41. Under the U.S. measure, as amended, all tuna product sold in the U.S. market as dolphin 
safe must be accompanied by a captain certification attesting that (1) "no purse seine net or other 
fishing gear was intentionally deployed on or us ed to encircle dolphins during the fishing trip in 
which the tuna were caught"; and (2) no dolphin mortality or serious injury occurred "in the sets 
or other gear deployments in which the tuna were caught."  Additionally, to be eligible for the 
label, tuna  product produced from the ETP large purse seine fishery must be accompanied by 
certifications from an AIDCP -approved observer, as has been the case since the original measure 
came into effect.  Moreover, under the 2016 IFR, captains operating outside the ETP large purse 
seine fishery are now required to certify completion of the NMFS dolphin -safe captain's training 
course, regarding issues pertinent to the dolphin safe certification.   
42. The certification requirements meet the test of calibration.  Specifica lly, and as discussed 
above, the ETP large purse seine fishery has a special risk profile that is different from the risk 
profiles of other fisheries  The differences in the certification requirements are commensurate with 
these different risk profiles.  T his is the case for at least two reasons.  
43. First, the differences in the certification requirements are commensurate with the differences 
in risk because the task of verifying that tuna meets the eligibility criteria is so much more difficult 
in the ETP la rge purse seine fishery than it is in other fisheries.  That is to say, it is appropriate to 
require two certifiers (one of whom has to meet certain minimum education standards and has 
undergone some training) where the conditions facing the certifier are very difficult and to require 
only one certifier (who need not meet minimum education standards but is required to have taken 
a training course) where the conditions are less difficult.  The ETP large purse seine fishery is 
fundamentally different from oth er fisheries in terms of the number of dolphins put at risk of 
mortality or serious injury by interacting with the vessel, fishing gear, etc. and the frequency with 
which that interaction is taking place.  Further, the ETP large purse seine fishery differs  
substantially from other fisheries in how this interaction occurs.  ETP large purse seine vessels, in 
coordination with speedboats and a helicopter, engage in lengthy chases of large dolphin herds, 
which usually last 20 -40 minutes but can take over two ho urs, with the entire process lasting 
another one -to-two hours following the end of the chase.  Such a complex scene – in varying 
weather and ocean conditions – can make it very difficult for even the captain and a single 
observer to see every dolphin inter action throughout the entire process.  There is no evidence that 
this type of interaction is repeated elsewhere in the world.  In other fisheries, by contrast, where 
interactions with dolphins are generally accidental and are of limited scope and duration,  captains 
are capable of determining the fate of the few dolphins they may encounter.   
44. Second , the differences in certification requirements are commensurate with the differences 
in risk among fisheries because any difference in the "margin of error" resu lting from the different 
requirements has a rational connection to the difference in risk, as discussed by the minority 
panelist in the first compliance panel's report.  That is to say, even if the conditions facing the 
certifiers in the ETP large purse se ine fishery and other fisheries were the same (which they are 
not), and a captain working outside the ETP large purse seine fishery were, therefore, a less 
"sensitive" mechanism than an AIDCP observer, the regulatory distinction is calibrated (and thus 
even-handed) in tolerating a higher "margin of error" for the certifier where the risks are lower 
and tolerating a lower "margin of error" where the risks are higher.  The United States has already 
demonstrated – indeed, the first compliance panel agreed – that the probability of dolphin 
mortality or serious injury is greater in the ETP large purse seine fishery than outside it.  Thus, it 
remains the case that, as the minority panelist put it, the different certification requirements 
"represent[] a fair respon se to the different risk profiles existing in different fisheries, as 
established by the evidence," even without taking into account that the certification requirements 
have narrowed since the first compliance proceeding.  Taking the changes made by the 20 16 IFR 
into consideration, it is even clearer that the certification requirements reflect a "fair response" to 
different risk profiles among fisheries, as established by the evidence on the record.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  45. Thus, the certification requirements are calibrated to th e risk profiles of different fisheries 
and, as such, are even -handed and thus cannot support a finding of less favorable treatment.   
F. The Tracking and Verification Requirements Are Even -Handed  
46. The purpose of the tracking and verification requirements of  the NOAA tracking and 
verification regime is to distinguish between tuna product that meets the dolphin safe standard 
and tuna product that does not.  The NOAA regime is composed of the interlocking elements of 
recordkeeping and reporting, physical segreg ation, verification, and sanctions.  The 2016 IFR 
established additional chain of custody recordkeeping requirements for U.S. processors or 
importers, as applicable.  U.S. processors and importers must collect and retain records regarding 
each custodian of  the tuna or tuna product throughout the complete chain of custody, including 
storage facilities, transshippers, processors, re -processors, and wholesalers/distributors.  These 
records must be sufficient for NMFS to conduct a trace -back to verify that any tuna product 
certified to NMFS as dolphin -safe, in fact, meets the dolphin -safe labeling requirements.  
Moreover, the recordkeeping must be sufficient for NMFS to trace any non -dolphin safe tuna 
loaded onto the vessel back to one or more storage wells or o ther storage locations for a particular 
fishing trip to prove that such non -dolphin safe tuna was kept physically separate from dolphin -
safe tuna from catch through unloading.  
1. The Regulatory Differences Between the Two Regimes Are Narrow  
47. The first compl iance panel's even -handedness analysis was based on a comparison of the 
two different sets of tracking and verification requirements.  The first compliance panel concluded 
that the two regimes differed as to "depth," "accuracy," and "degree of government o versight."  
48. Depth .  The first compliance panel used the term "depth" to refer to the point to which tuna 
can be traced back.  The AIDCP regime requires that processed tuna product be traceable back to 
the AIDCP TTF, not the set or the well as the first comp liance panel suggested.  Thus, all that is 
required to be disclosed at the time of an audit is that the tuna in question was harvested on a 
particular trip covered by the TTF number, that it was caught in one of the sets listed on the TTF, 
and that it was stored in one of the wells listed on the TTF.   
49. Accordingly, there is no practical difference in the tracking and verification requirements 
between the AIDCP and NOAA regimes as to "depth."  Both regimes have the same objective – to 
distinguish between dol phin safe and non -dolphin safe tuna, by being able to track and verify that 
the two types of tuna have been kept physically separate from one another from the vessel 
through processing.  To do so, both regimes require a separate set of information for dolp hin safe 
or non -dolphin safe tuna product ( i.e., different TTF pages for the AIDCP regime and different 
Form 370s (or equivalent) and captain certifications for the NOAA regime), to which NMFS can 
trace back the tuna.   
50. Accuracy .  The first compliance pane l used the term "accuracy" to refer to "the degree of 
confidence that a particular captain (or, where applicable, observer) statement properly describes 
the lot of tuna to which it is assigned."  In the panel's view, "[the AIDCP] tuna tracking forms . . . 
accompany particular catches of tuna throughout the fishing and production process, from the 
point of catch right through to the point of retail" and, "accordingly the identity of a particular 
batch of tuna can, in principle, always be established."  In co ntrast, for the NOAA regime, the first 
compliance panel questioned whether and how the "particular certificates are kept with particular 
lots of tuna up until the tuna reaches the canning plant."  The 2016 IFR directly addressed the first 
compliance panel' s concern with regard to "accuracy."  U.S. processors and importers now must 
maintain recordkeeping sufficient to allow NMFS to verify the dolphin safe status of tuna product.  
Such records must pertain to each custodian of the tuna or tuna product through out the chain of 
custody, including storage facilities, transshippers, processors, re -processors, and 
wholesalers/distributors.  In other words, this new recordkeeping requirement establishes a 
concrete legal obligation that the documentation attesting to whether the tuna is dolphin safe 
does, in fact, stay with the tuna throughout the supply chain.   
51. Accordingly, there is no practical difference  in the tracking and verification requirements 
between the AIDCP and NOAA regimes as to "accuracy."  Given that U .S. processors and U.S. 
importers must maintain records as to the complete chain of custody sufficient for NMFS to do a WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  complete trace back of the tuna product that is the subject of the verification, the legal 
requirements in place for both the AIDCP and NOAA regimes mean that "the degree of confidence 
that a particular captain (or, where applicable, observer) statement properly describes the lot of 
tuna to which it is assigned" will be the same.  
52. Degree of Government Oversight .  The first compliance panel used the phrase "degree of 
government oversight" to refer to "the extent to which a national, regional, or international 
authority is involved in the tracking and verification process."  In the panel's view, in the AIDCP 
regime, "information concerning eve ry stage of the tuna catch and canning process is made 
available to national and regional authorities, which must be sent copies of tuna tracking forms 
and are thus able to verify at any stage of the catch and canning process whether a particular 
batch of tuna is dolphin -safe."  By contrast, in the NOAA regime, the panel's view was that "the 
United States has, as it were, delegated responsibility for developing tracking and verification 
systems to the tuna industry itself, including canneries and importers,  and has decided to involve 
itself only on a supervisory and ad hoc  basis through the review of monthly reports and the 
conduct of audits and spot checks."  Under the current measure, NMFS receives dolphin safe 
certifications for all tuna product sold on t he U.S. market as dolphin safe.  Moreover, all U.S. 
processors and importers marketing dolphin safe tuna product must now retain records such that 
the complete chain of custody for the tuna product, and the tuna contained therein, can be 
established.  Thus , with respect to "government oversight," the 2016 IFR narrowed the differences 
between the NOAA and AIDCP regimes.   
2. The Differences in Requirements Are Calibrated to the Differences 
in Risk  
53. Like the certification requirements, the tracking and verifi cation requirements are calibrated, 
and thus even -handed, because it is appropriate to use a more "sensitive" mechanism where the 
risks of dolphin mortality and serious injury are high, and a less "sensitive" mechanism where the 
risks of dolphin mortality and serious injury are low, as discussed by the minority panelist with 
regard to the certification requirements.  The fact that the "mechanism" here occurs subsequent to 
the catch of the tuna does not mean that the calibration argument is rendered irreleva nt to this 
stage of the analysis, as the Appellate Body has confirmed.  Thus, any differences between the two 
"mechanisms," i.e., the tracking and verification systems, are small, particularly in light of the 
significant differences in risk between the ETP  large purse seine fishery and other fisheries.  With 
respect to depth, both the AIDCP and NOAA regimes require that tuna product that is "dolphin 
safe" (for purposes of their respective regimes) be traceable back to the harvesting vessel and trip 
and to t he group of wells that held dolphin safe tuna.  With respect to accuracy, both regimes 
require chain of custody recordkeeping sufficient to enable national authorities to trace a particular 
lot of tuna from harvesting through processing.  With respect to g overnment oversight, both 
regimes enable a government authority to obtain documentation "concerning every stage of the 
tuna catch and canning process" and thus both can "go behind" the dolphin safe certifications to 
the same extent.   
G. The Measure, as a Whole, Is Even -Handed  
54. Although the United States considers it useful to discuss the issues on a distinction -by-
distinction basis in order to provide a thorough explanation of how the calibration analysis applies 
in these proceedings, such a "segmented" app roach is not the analysis that the Appellate Body has 
explained is necessary.  Rather, the Appellate Body has stated consistency with the 
TBT Agreement and GATT 1994 must be determined based on a "comprehensive" analysis that 
takes into account the "cumula tive and highly interrelated" nature of the different distinctions and 
"reconcil[es]" any different intermediate conclusions that may be drawn as to particular regulatory 
distinctions.  In particular, the Appellate Body has stated that the fact that one re gulatory 
distinction may not be "balanced" in relation to the risk does not mean the measure as a whole 
should be found inconsistent – it is necessary to look at whether the measure "as a whole" is 
commensurate with the risk.  
55. This type of broad analysis ma kes sense.  It is not the role of a WTO panel to step into the 
shoes of a regulator and find a measure inconsistent based on a hyper -technical investigation of 
whether the measure responds to every small detail of different circumstances around the world.  
The WTO Agreement has never been interpreted as requiring a measure to satisfy such a 
standard.  Rather, the Appellate Body has indicated that the analysis should be the same type of WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  analysis as other past panels have done, namely whether the measure, as a whole, is justified in 
light of the evidence available.  In this light, the Appellate Body's characterization of the calibration 
test – in particular, whether the regulatory distinctions are "commensurate" with the risk – is not 
materially different from  how the previous proceeding's minority panelist understood it.  The 
question is simply whether the regulatory distinctions drawn by the measure reflect a "fair 
response to the different risk profiles existing in different fisheries, as established by the 
evidence. " 
56. In fact the measure – when viewed as a whole – reflects such a "fair response" to the 
evidence.  In particular, the evidence establishes that the ETP large purse seine fishery has a 
higher risk profile than other fisheries because a uniquely dan gerous fishing method is widely 
employed in that fishery that is not employed in other fisheries.  The measure recognizes the 
unique risk to dolphins that the intentional chase and capture of dolphins poses and draws 
distinctions between fishing methods an d fisheries in light of that difference in risk.  The difference 
in risk "explains" the distinctions contained in the measure, and the measure is, in turn, calibrated 
to the risk.  Accordingly, the measure is consistent with Article 2.1.   
III. THE MEASURE  IS CONSISTENT WITH A RTICLE XX OF THE GAT T 1994  
57. For purposes of this dispute, the Appellate Body has stated that the question to be answered 
to determine whether the measure reflects "arbitrary or unjustifiable discrimination," as 
understood in the chapeau  of Article XX, is the same question that needs to be answered to 
determine whether the measure is even -handed under Article 2.1.  Namely, is the measure 
calibrated to differences in risk of overall harm between setting on dolphins in the ETP large purse 
seine fishery and other fishing methods employed in other fisheries?  As discussed, the measure 
is, in fact, so calibrated.  As such, any inconsistency with GATT 1994 Articles I:1 and III:4 is 
justified under Article XX.  
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF MEXICO  
I. INTRODUCTION  
1. These two proceedings, under Article 21.5 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU), concern a disagreement as to the consistency with 
the WTO covered agreements of measu res taken to comply with the recommendations and rulings 
of the Dispute Settlement Body (DSB) in the first Article 21.5 compliance proceedings in United 
States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products . 
2. The most  recently amended tuna measure — that is, the tuna measure as amended by the 
2016 Interim Final Rule — continues to be inconsistent with Article 2.1 of the Agreement on 
Technical Barriers to Trade (TBT Agreement) and Articles I:1 and III:4 of the General A greement 
on Tariffs and Trade, 1994 (GATT 1994). Moreover, it does not meet the requirements of the 
chapeau in Article XX of the GATT 1994 and, therefore, the general exceptions in Article XX do not 
apply.  
3. Mexico has established a prima facie case, and both parties agree, that: (i) the tuna 
measure is a "technical regulation " covered under the TBT Agreement; (ii) the tuna products at 
issue are "like"; and (iii) the measure has a detrimental impact on the competitive opportunities of 
Mexican tuna products  in the US market, and the first part of the "less favourable treatment " test 
under Article 2.1 is therefore satisfied. In addition, Mexico has established a prima facie case, and 
both parties agree, that the 2016 tuna measure is inconsistent with Articles  I:1 and III:4 of the 
GATT 1994. Further, Mexico agrees with the United States that the measure would provisionally 
fall within subparagraph XX(g) of the GATT 1994.  
4. However, Mexico and the United States disagree on whether the detrimental impact stems 
exclusively from a legitimate regulatory distinction or reflects discrimination against Mexican tuna 
products under Article 2.1, and also on whether or not the require ments of the chapeau of 
Article  XX are met — specifically, the requirement that the measur e must not be applied in a 
manner that constitutes a means of arbitrary or unjustifiable discrimination.  
5. The key areas of disagreement relate to whether or not the tuna measure 's different 
regulatory treatment of tuna products containing tuna caught by the Mexican fishing fleet in the 
Eastern Tropical Pacific Ocean (ETP) large purse seine fishery, on the one hand, and tuna products 
containing tuna caught by other fishing vessels in other fisheries, on the other hand, is 
appropriately "calibrated " to the relevant differences in circumstances — i.e., the overall relative 
risks or levels of harm to dolphins arising from different fishing methods in different areas of the 
oceans — taking account of the objectives of the measure, such that the detrimental impa ct 
caused by the regulatory distinctions can be reconciled with, or rationally related to, the objectives 
of the measure.  
6. The Panels are required to fully interpret and apply the calibration assessment described 
by the Appellate Body for the purposes of  determining: (i) whether, under Article 2.1 of the 
TBT Agreement, the tuna measure is even -handed in its design, architecture, revealing structure, 
operation, and application in the light of the particular circumstances of the case  or lacks even -
handednes s, such that the detrimental impact cannot be said to stem exclusively from a legitimate 
regulatory distinction (e.g., because the measure is designed or applied in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination); and (ii) w hether the measure 
satisfies the requirements of the chapeau of Article XX or is designed or applied in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination.  
7. It is important to note that there will always be differences in fact ual circumstances where 
technical regulatory distinctions are applied to like products from different origins with trade -
restrictive effects. The mere existence of such factual differences among like products — e.g., 
different circumstances of production — cannot, on its own, justify differences in regulatory 
treatment that result in detrimental impact on a group of imported products. Such an 
interpretation would render Article 2.1 and the chapeau of Article XX inutile.  
8. Thus, the Panels must carefully co nsider under what circumstances regulatory differences 
amount to "calibration " that justifies them as even -handed, such that they do not constitute a WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  means of arbitrary or unjustifiable discrimination. Where should the line be drawn between 
(i) "legitimate " calibration of regulatory distinctions, and (ii) regulatory distinctions that are 
designed and applied in a manner that lacks even -handedness or otherwise constitutes a means of 
arbitrary or unjustifiable discrimination? The determination of where this l ine is drawn must be 
flexible enough to accommodate the many different facts and circumstances that could arise in 
respect of a measure in pursuit of legitimate objectives, but not so flexible as to render inutile the 
obligations in Article 2.1 of the TBT Agreement, the chapeau of Article XX of the GATT 1994, and 
other similar provisions in the WTO Agreements.  
II. THE 2016 TUNA MEASUR E 
9. The measure taken to comply is the most recently amended tuna measure, which 
comprises: (a) Section 1385 ( "Dolphin Prote ction Consumer Information Act "), 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; (b) U.S. Code of Federal Regulations, Title 50, Part 216, 
Subpart H ("Dolphin Safe Tuna Labeling "), as amended by the 2013 Final Rule and the 2016 
Interim Final Rule; (c) the court ruling in Earth Island Institute v. Hogarth,  494 F.3d 757 
(9th Cir. 2007); and (d) any implementing guidance, directives, policy announcements or any 
other document issued in relation to instruments (a) through (c) above, including any 
modifications or amendments in relation to those instruments.  
10. The tuna measure remains inconsistent with Article 2.1 of the T BT Agreement and 
Articles  I:1 and III:4 of the GATT 1994, and the general exceptions in Article XX of the GATT 1994 
do not apply.  
III. LEGAL ARGUMENT  
11. For a violation of Article 2.1 of the TBT Agreement to be established, the following 
elements must be satisfied: (i) the measure at issu e must be a "technical regulation " within the 
meaning of Annex 1.1; (ii) the imported products at issue must be like the domestic product and 
the products of other origins; and (iii) the treatment accorded to imported products must be less 
favourable than that accorded to like domestic products or to like products originating in other 
country.  
12. In these compliance proceedings, it is undisputed that the first two of the above -
referenced elements are satisfied.  
A. Treatment No Less Favourable  
13. The Appel late Body has established a two -step analysis for assessing whether a technical 
regulation accords "less favourable treatment " under Article 2.1 of the TBT Agreement. The first 
step focuses on whether the measure at issue modifies the conditions of competi tion in the 
relevant market to the detriment of imported products as compared to like domestic products or 
like products originating in any other Member. The second step determines whether any such 
detrimental impact stems exclusively from a legitimate reg ulatory distinction or reflects 
discrimination against the group of imported products.  
14. It is undisputed that the tuna measure continues to modify the conditions of competition in 
the US market to the detriment of Mexican tuna products, such that the fi rst step of the 
"treatment no less favourable " test under Article 2.1 is satisfied.  
15. In determining whether the detrimental impact on imports stems exclusively from a 
legitimate regulatory distinction, a panel must carefully scrutinize whether the techn ical regulation 
at issue is even -handed in its design, architecture, revealing structure, operation, and application 
in the light of the particular circumstances of the case. The Appellate Body has found that where a 
regulatory distinction is not designed and applied in an even -handed manner, that distinction 
cannot be considered "legitimate ", and thus the detrimental impact will reflect discrimination 
prohibited under Article 2.1. The Appellate Body has also confirmed that, in undertaking this 
assessment o f even -handedness, a panel does not err by assessing whether the detrimental 
impact caused by a regulatory distinction can be reconciled with, or is rationally related to, the 
policy objectives pursued by the measure at issue, so long as, in doing so, it d oes not preclude 
consideration of other factors that may al so be relevant to the analysis.  
16. In the original proceedings, the Appellate Body concluded that the United States had not 
demonstrated that the difference in the tuna measure 's labelling conditi ons was "calibrated " to the 
risks to dolphins arising from different fishing methods in different areas of the oceans. In the first 
compliance proceedings, the Appellate Body found that the compliance panel had erred to the WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  extent that its analysis had not  encompassed, in response to the United States ' arguments, an 
assessment of whether the regulatory distinctions drawn by the amended tuna measure (i.e., with 
respect to the eligibility criteria, the certification requirements, and the tracking and verifica tion 
requirements) were "calibrated " to the relative risks of harm to dolphins posed by different fishing 
techniques in different areas of the oceans. As the United States defended the amended tuna 
measure 's regulatory distinctions on the basis of "calibra tion", the Appellate Body considered there 
to be a "special relevance " in conducting a calibration assessment as part of the "treatment no less 
favourable " test in the second step of the Article 2.1 analysis in this dispute.  
17. While the Appellate Body de scribed, in general terms, the methodology of the applicable 
calibration assessment, it was unable to complete the analysis because there were insufficient 
factual findings and undisputed facts on the record regarding the overall relative risks or levels o f 
harm to dolphins arising in different fisheries. As a consequence, it was unable to resolve the 
question of whether or not the different eligibility criteria, the different certification requirements, 
the different tracking and verification requirements were "calibrated " to such different overall 
relative risks or levels of harm. Nonetheless, the Appellate Body found that other aspects of the 
measure 's design (i.e., the "determination provisions ") reflected a lack of even -handedness, and 
that, for this re ason alone, the United States had not demonstrated that the differences in the 
amended tuna measure 's labelling conditions were calibrated to, or commensurate with, the risks 
to dolphins arising from different fishing methods in different areas of the ocea ns. 
18. In the current compliance proceedings, the United States attempts to restrict the Panels ' 
assessment of even -handedness in the second step of the "treatment no less favourable " test 
under Article 2.1 to a narrow interpretation of "calibration ". In so doing, the United States seeks to 
exclude considerations, questions, and factors relevant to both the calibration assessment and the 
overall analysis described by the Appellate Body in the first compliance proceedings, including 
whether the tuna measure 's regulatory distinctions are designed or applied in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination because, for example, the 
detrimental impact they cause cannot be reconciled with, or rationally connected to, the objectiv es 
of the measure. In Mexico 's view, the assessment of even -handedness is a multi -factor analysis 
that carefully scrutinizes the design, architecture, revealing structure, operation, and application of 
the measure in the light of the particular circumstanc es of the case. This analysis is  based on the 
arguments and evidence adduced by the disputing parties, and therefore includes — but is not 
restricted to — the question of whether or not the relevant regulatory distinctions are "calibrated " 
to the relative overall risks of harm to dolphins arising in different fisheries.  
19. Thus, the Panels must take into account a number of factors or questions in conducting 
and resolving the legal test for "even-handedness ", including both whether the tuna measure 's 
regulatory distinctions can be justified on the basis that they are "calibrated ",  and whether, as 
Mexico argues, the discriminatory effects constitute arbitrary or unjustifiable discrimination on the 
basis that the regulatory distinctions cannot be reconciled with, or rationally connected to, the 
legitimate policy objectives of the measure.  
20. These questions do not create independent or discrete legal tests; rather, they are 
elements within the overall analysis of whether or not the tuna measure is "even-handed", and 
they are assessed cumulatively, in relation to one another, on a common record of facts and 
circumstances. The careful assessment of a relevant question or factor within the context of the 
legal test for "even-handedness " should not be viewed as c onducting a separate legal test. As the 
Appellate Body explained, assessing whether a measure involves "arbitrary or unjustifiable 
discrimination " is "one of the ways to determine whether the detrimental impact caused by a 
technical regulation is even -handed", but "the fact that a measure is designed in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination is not the only way in which a 
measure may lack even -handedness. " A panel should not be precluded from considering "other 
factor s that may also be relevant to the analysis ". In this regard, the Appellate Body has explicitly 
confirmed that, in the circumstances of this dispute, a calibration assessment is a necessary part 
of the legal test for even -handedness, but it is not a separa te, independent test in and of itself. 
The Appellate Body also made it clear that the calibration analysis must be undertaken "taking 
account of the objectives of the measure ". 
21. Accordingly, contrary to the arguments of the United States, both the nexus  between the 
regulatory distinctions and the objectives of the measure and the calibration of the measure are 
relevant to the assessment of whether the tuna measure is even -handed.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  1. The Risks to Dolphins can only be Addressed if the Label is 
Accurate  
22. The accuracy of the information provided to consumers on the U.S. dolphin -safe label is a 
central consideration in determining whether the detrimental impact caused by the tuna measure 
stems exclusively from a legitimate regulatory distinction . This is b ecause the calibration 
assessment must be undertaken "taking account of the objectives of the measure ", which 
necessitates an assessment of whether there is a "rational connection " between the regulatory 
distinctions and the objectives of the measure. This  is clearly reflected in the reasoning and 
findings of the Appellate Body and the Panels in the previous proceedings.  
23. The undisputed objectives of the tuna measure are: (i) ensuring 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) contributing to the protection of dolphins, by ensuring that the 
U.S. market is not used to encourage fishing fleets to catch tuna in a manner that adversely 
affects dolphin s. 
24. Taking these two objectives into account, the calibration assessment requires an 
assessment of the "accuracy " of the label. This is because an inaccurate label misleads consumers 
about whether tuna products that they purchase contain tuna caught in a manner that adversely 
affects dolphins, which in turn allows the U.S. market to be used to encourage fishing fleets to 
catch tuna in a manner that adversely affects dolphins. In such circumstances, a high risk of 
inaccurate labelling equates to a high ri sk to dolphins, contrary to both of the interrelated 
objectives of the tuna measure. Thus, the objectives of the measure cannot be fulfilled if the 
accuracy of the dolphin -safe information on the label is neither (i) required, nor (ii) enforced, i.e., 
through sufficient certification and tracking and verification conditions.  
25. The fundamental linkage between protecting dolphins from mortality and serious injury 
and providing accurate labelling information was recognized by the original Panel. In the origi nal 
proceedings, the Panel found that the tuna measure operated on the basis of incentives created by 
consumer choice, such that achievement of the measure 's secondary objective (i.e., to protect 
dolphins by ensuring that the U.S. market is not used to enc ourage fishing fleets to catch tuna in a 
manner that adversely affects dolphins)  was therefore dependent in large part on the achievement 
of the primary objective (to ensure that consumers are not misled or deceived about whether tuna 
products contain tuna  caught in a manner that adversely affects dolphins). In other words, the 
risks of harm to dolphins are inextricably linked to the accuracy of the dolphin -safe information 
provided to consumers and, therefore, accuracy is a necessary and central considerat ion in the 
calibration analysis  
26. The United States ' interpretation of calibration as allowing, on the facts of this dispute, for 
there to be a "margin of error " in the accuracy of the information provided to consumers on the 
dolphin -safe label is someth ing that cannot be justified for the purposes of the assessment of 
even-handedness in the second step of the "treatment no less favourable " test under Article 2.1 of 
the TBT Agreement or for the assessment of arbitrary and unjustifiable discrimination unde r the 
chapeau of Article XX of the GATT 1994.  
27. In arguing that the accuracy of the label is not relevant to the calibration test, the United 
States incorrectly narrows the test to an assessment of the "risks" (i.e., mortality and serious 
injury to dolph ins) in isolation from the mechanism that addresses those risks (i.e., the provision 
of dolphin -safe information to consumers on the label affixed to tuna products in the U.S. market). 
The Appellate Body has explained that the focus of the calibration  test is on "how the risks … are 
addressed " and not on the risks in isolation. The risks are addressed through the dolphin -safe label 
which, in turn, is governed by the labelling conditions. The differences in the labelling conditions 
include differences that r elate to the accuracy of the labels.  
28. Mexico is not required to adduce evidence that proves actual instances where tuna 
products containing non -dolphin -safe tuna caught outside the ETP have been inaccurately labelled 
as dolphin -safe.  For the purposes o f establishing a lack of even -handedness under the second part 
of the legal test in Article 2.1 of the TBT Agreement and arbitrary discrimination under the 
chapeau of Article XX of the GATT 1994, Mexico is only required to establish a prima facie  case 
that, under the circumstances related to the design and application of the tuna measure 's labelling 
conditions and requirements, tuna products containing non -dolphin -safe tuna caught outside the 
ETP could potentially enter the U.S. market inaccurately labelled  as dolphin -safe. The burden then 
shifts to the United States to sufficiently explain how such instances can be prevented in the 
application of the tuna measure 's labelling conditions and requirements.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  29. In EC – Seal Products , for example, the Appellate Body considered the mere possibility 
that the measure at issue could be applied in a manner that might inaccurately characterize 
products with an advantageous market status to be sufficient to establish a prima facie  case of 
arbitrary or unjustifiable disc rimination, thereby shifting the burden to the responding Member. In 
this respect, the Appellate Body indicated that it fell to the European Union to sufficiently explain 
how instances of such inaccurate characterization could be prevented in the applicati on of the 
measure at issue.  
30. In the current proceedings, Mexico has established a prima facie  case that, due to gaps 
and deficiencies in the eligibility criteria, the certification requirements and the tracking and 
verification requirements, tuna produc ts derived from tuna caught outside the ETP under non -
dolphin -safe circumstances – which are therefore not properly eligible for the dolphin -safe label – 
could potentially enter the U.S. market inaccurately labelled as dolphin -safe. Mexico showed not 
only that there are gaps, but also that major suppliers of tuna for the U.S. market – Thailand, the 
Philippines and Chinese Taipei – were found by the European Commission to have significantly 
deficient regulation of their fishing fleets and processing industri es, meaning that they could not 
provide assurances of the sources of their sea food products. That is, in fisheries other than the 
ETP large purse seine fishery, factors such as deficiencies in record -keeping, transshipments, and 
illegal, unreported and un regulated (IUU) fishing can lead to dramatic deficiencies in the accuracy 
of information, including dolphin -safe information. Moreover, the United States lacks jurisdiction to 
audit foreign fishing vessels, carrier vessels, and foreign processors. The U.S.  processors and 
importers are required to collect the documentation, but not to validate the information contained 
therein.  
2. The Measure is Not Calibrated to the Overall Relative Risks or 
Levels of Harm to Dolphins arising in Different Fisheries  
31. It is important to recall that the concept of "calibration " was first raised in the original 
proceedings as a defensive argument by the United States, not as an independent analysis 
developed by the Appellate Body. The concept of "calibration " as a potential j ustification was 
further developed by the Appellate Body in the first compliance proceedings, again in relation to 
the United States ' arguments.  
32. Further to the Appellate Body 's guidance in the first compliance proceedings, the 
calibration assessment in  this dispute must examine whether the de jure and de facto  regulatory 
differences — i.e., the "relevant regulatory distinctions " under Article 2.1 of the TBT Agreement — 
are "calibrated " to the different relative risks (i.e., the likelihood) that dolphins  will be adversely 
affected (i.e., dolphin mortalities or serious injuries) in the course of tuna fishing operations by 
using different fishing methods in different areas of the oceans. The differences are calibrated if 
they are "not disproportionate with ", "are commensurate with ", and are "appropriately tailored to " 
the different "relative overall risks or levels of harm " to dolphins — including both observable and 
unobservable mortality and serious injury — associated with tuna fishing using different fis hing 
methods in different ocean areas, "taking account of " and "in the light of " the objectives of the 
measure. The consideration of the objectives of the measure incorporates the requirement that the 
detrimental impact caused by the regulatory distinction s must be reconciled with, or rationally 
related to, the objectives of the measure.  
33. In order to apply the calibration test, the Panels must first identify the differences in the 
"risk profiles " of the different "fishing methods " in the different "areas  of the oceans ". In these 
proceedings, questions regarding the relative risk profiles are "more acute " and a detailed 
assessment that reflects a "thorough understanding of the relative risk profiles " is necessary. 
"Risk" refers to the likelihood of dolphin  mortalities or serious injuries. The likelihood of dolphin 
mortalities or serious injuries (i.e., the risk profile) must be assessed both in relation to fishing 
methods and in relation to fishing areas of the oceans. In determining the risk profile of a f ishery, 
focusing on both the fishing method and the ocean area is necessary because the risk to dolphins 
arising from a particular fishing method may change depending on the fishing area. Likewise, the 
risk to dolphins in a particular fishing area may chan ge depending on the fishing method that is 
used in that area. The comparative evaluation of the overall relative risks in different areas of the 
oceans must also take into account the reliability of the record -keeping and reporting — that is, 
the accuracy of the information provided and the levels of IUU fishing — by the tuna suppliers in 
those areas, including the level and effectiveness of governmental oversight of the commercial 
activities of tuna fishing vessels, brokers, trans -shippers and producers of  tuna products.  
34. Finally, in assessing the various factors that make up the risk profiles of the different 
fishing methods and the different areas of the oceans, the Panels must take into account the WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  nature of the evidence relied upon by the United Stat es to establish those factors.  Where the 
United States relies on precautionary presumptions or a low standard of proof for assessing the 
risk profile of a fishing method and an ocean area, a similar presumption or low standard of proof 
must be used for as sessing the risk profiles of other fishing methods in other ocean areas.  To do 
otherwise would be arbitrary and unjustifiable.  
a. Determination of the Risk Profiles of Different Fishing 
Methods in Different Ocean Areas  
35. Pursuant to the Appellate Body 's direction, in evaluating whether the measure is 
calibrated, the Panels must conduct a comparative analysis of the overall relative risks or levels of 
harm posed to dolphins by different fishing methods in different ocean areas. In the first 
compliance pro ceedings, the Panel narrowed its comparison to what it characterized as the 
"unobservable " adverse effects caused by different fishing methods. The Appellate Body rejected 
this approach, determining that the comparison must take into account the total adve rse effects 
caused by a fishing method, including the direct, observable mortalities and serious injuries. In 
this respect, the Appellate Body considered that by  focusing solely on its understanding that the 
unobserved harms differed between setting on dol phins and other fishing methods, the Panel did 
not consider the relative risks posed by the relevant fishing methods in respect of observable 
mortality or serious injury, and therefore did not resolve the questions of the overall levels of risk 
in the diff erent fisheries and how they compare to each other. The Appellate Body specifically and 
expressly considered that such an examination was needed in order to assess whether the 
differences in the dolphin -safe labelling conditions under the amended tuna meas ure are 
appropriately tailored to, and commensurate with, those respective risks.  
36. It is clear from the Appellate Body 's reasoning that risk profiles must be objectively 
determined for the different relevant fishing methods and fishing areas, such that they capture the 
implications of all factors that affect the likelihood of total or "overall " (i.e., observed and 
unobserved) dolphin mortality and serious injury caused by each fishing method at issue in each 
ocean area at issue. Once such risk profiles a re determined, they can be compared in order to 
identify the differences in the overall relative risks or levels of harm. The design and application of 
the different eligibility criteria, certification requirements, and tracking and verification 
requiremen ts can then be scrutinized in the light of these differences in order to determine 
whether or not the regulatory distinctions are commensurate with, or tailored — that is, 
"calibrated " in an even -handed manner — to the different risk profiles arising in di fferent fisheries.  
37. It is not necessary for the Panels to undertake a comprehensive comparison of the risk 
profiles for all fishing methods in all ocean areas. Rather, the scope of the Panels ' analysis is 
largely dictated in this dispute by the evidence  adduced by the Parties. As the Party asserting that 
the tuna measure is "calibrated ", the United States bears the burden of demonstrating that it has 
properly tailored the different labelling conditions and requirements to the different overall relative 
risks or levels of harm arising in different fisheries. This burden must be satisfied if the United 
States is to rebut Mexico 's prima facie  case under Article 2.1 that the measure does not stem 
exclusively from a legitimate regulatory distinction. In partic ular, Mexico has shown that the 
deficiencies and gaps in the design, architecture, revealing structure, operation, and application of 
the regulatory distinctions result, in the light of the particular circumstances of the case, in the 
provision of inaccura te dolphin -safe information to consumers in direct contradiction of both of the 
measure 's objectives. Therefore, the measure cannot be said to be designed and applied in an 
even-handed manner. The Panels need only to find that there is evidence of one exam ple in which 
the measure is not commensaurate with, or properly tailored to, the overall relative risks or levels 
of harm for the United States to be found not to have satisfied this burden. While Mexico 's 
evidence demonstrates several examples of fishing methods and fisheries where the overall 
relative risks to dolphins are equivalent to or greater than the those arising from Agreement on 
the International Dolphin Conservation Program (AIDCP) -compliant tuna fishing in the ETP, the 
tuna measure 's labelling conditions and requirements are less strict for those fisheries. This 
outcome is inconsistent with the concept of calibration described by the Appellate Body.  
38. In the circumstances of this dispute, the determinative factors in ascertaining the risk 
profiles for the purposes of the calibration assessment are (i) the existence of observed and 
unobserved dolphin mortalities and serious injuries, and (ii) the magnitude of those mortalities and 
serious injuries. These factors reflect the aggregate "results " of all other risk factors that have 
been discussed in this dispute. While the United States attempts to include as an additonal factor 
the subjective description of the AIDCP -compliant dolphin encirclement fishing method as 
"particularly harmful " simply bec ause it involves intentional interactions with dolphins, Mexico WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  emphasizes that ascribing risk to the features of the fishing activity and, at the same time, to the 
evidence of both observed and unobserved dolphin mortality and serious injury will double -count 
the overall relative risks or levels of harm. This is why the Appellate Body did not include a 
subjective description of fishing techniques in the methodology it described for determining risk 
profiles. Thus, it is the measurable results or consequenc es of a fishing method, as evidenced in 
total aggregate levels of observable and non -observable dolphin mortalities and serious injuries, 
that must be assessed, rather than presumptions extrapolated from subjective descriptions of the 
features or character istics of the fishing methods.  
39. The most scientific and objective approach to determining risk profiles would be to use 
potential biological removal  (PBR) rates for the relevant fisheries in order to ascertain whether or 
to what extent dolphin populatio ns are being adversely affected by the fishing method. Another 
approach would be to consider the estimated overall, worldwide mortality levels of different fishing 
methods based on the available evidence on the record. The United States 's rejection of the use of 
PBR levels to evaluate whether different fishing methods and specific fisheries are dolphin -safe is 
inconsistent with the manner in which the United States regulates its own fisheries, inconsistent 
with the approach taken in its new Marine Mammal Pr otection Act regulations, and contrary to 
scientific methods. If a fishery is small, but the levels of harm caused by the fishing method is 
depleting the local dolphin stocks, then allowing tuna caught by those methods in those fisheries 
to be marketed as "dolphin -safe" (i.e., because the absolute number of dolphins killed is lower 
than in larger fisheries) is inconsistent with dolphin protection and contrary to the objectives of the 
tuna measure.  
40. Alternatively, if the United States disregards scientifi c measurements and justifies 
disqualification of Mexico 's AIDCP -compliant fishing method on the basis of a specualtive 
precautionary presumption that it is causing an unknown magnitude of unobservable harms in 
every fishing set, then the same type of preca utionary presumption and speculation must be 
applied to other fishing methods and other ocean regions . In other words, where there is credible 
evidence that dolphins have been harmed by a fishing method, it must be presumed that there are 
widespread direct  and indirect harms being caused by that fishing method unless proven otherwise 
with absolute certainty . The United States does the opposite, however. For all fishing methods 
other than dolphin encirclement, the United States applies a presumption that dol phins are not 
being harmed unless proven otherwise (a presumption that benefits from the general deficit of 
complete or reliable data on dolphin mortality caused by commercial tuna fishing outside the ETP). 
If the same presumptive standard is not applied t o all fishing methods that cause dolphin 
mortalities and serious injuries, but rather different presumptive standards are applied arbitrarily, 
then the tuna measure cannot be said to be applied in an even -handed manner.  
41. The favorable presumption that t he United States applies to non -ETP fisheries under the 
tuna measure is inconsistent with regulations that the United States recently issued to implement 
the Marine Mammal Protection Act, under which the United States, after a five -year grace period, 
will ban entirely imports of seafood from fisheries for which the exporting nation is unable to 
demonstrate that the fishery is not having population effects on marine mammals. This 
inconsistency highlights the arbitrariness of the standard that the United Stat es is applying under 
the tuna measure, under which it allows products to be labelled and advertised as dolphin -safe 
without reliable evidence supporting such a claim.  
42. It is important to note that, in the original proceedings, the Panel determined that dolphin 
populations affected by fishing techniques other than setting on dolphins face risks at least 
equivalent to those currently faced by dolphin populations in the ETP under AIDCP monitoring. The 
United States has not presented evidence that would just ify disregarding that determination.  
43. Gillnet Fishing.  The United States has admitted that the tuna gillnet fisheries of Iran, 
India, Sri Lanka, Pakistan, Oman, Yemen, Tanzania, the United Arab Emirates, Mozambique and 
Saudi Arabia in the Indian Ocean a ll have dramatically higher dolphin bycatch rates than dolphin 
encirclement sets in the ETP large purse siene fishery. Nonetheless, tuna products made with tuna 
caught using the gillnet fishing method in general — including tuna harvested in these gillnet 
fisheries in particular — remain eligible for the US dolphin -safe label. Further, this eligibility is 
conditioned on requirements and conditions that are more liberal than those applicable in the ETP 
large purse seine fishery.  
44. The evidence adduced by M exico demonstrates that the gillnet fishing method is highly 
destructive to dolphins. The United States ' arbitrary application of the determination provisions to 
the gillnet fisheries in the Indian Ocean, exclusively on the basis of evidence adduced by Mex ico in 
the first compliance proceeding, raises strong questions about why it has not made tuna products WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- B-20 - 
 
  made with gillnet -caught tuna ineligible for the dolphin -safe label. The United States argues that, 
in principle, gillnet fishing can be dolphin -safe if  it is done in an ocean area where there are no 
dolphins. In support of this proposition, the United States cites to a report on U.S. fisheries that 
includes a few that have not been deemed dangerous to marine mammals. However, the fisheries 
to which the U nited States refers are not tuna fisheries, and, in any event, the same document 
identifies a total of twenty -six gillnet fisheries that are designated as posing risks to marine 
mammals. There is no reasonable explanation why the United States has not made  gillnet fishing 
an ineligible method for harvesting dolphin -safe tuna.  
45. Longline Fishing.  There is substantial and uncontradicted evidence on the record that 
longlines kill and maim dolphins, and that longline fishing is threatening the viability of do lphin 
stocks in some fisheries.  
46. The association between dolphins and longline fishing is well -established. In the past, 
analyses of this issue tended to focus on negative effects on fishing caused by "depredation " – i.e., 
the consuming by marine mammal s of both bait and target fish on longline hooks – but it is now 
widely recognized that dolphins are severely harmed by such interactions.  
47. Notably, the United States itself has designated the longline tuna fishery in the area of the 
U.S. State of Hawai i as threatening the regional population of false killer whales (a species of 
dolphin ), which are classified as "endangered " and "depleted ". The U.S. Department of Commerce 
has established a "take reduction plan " to protect those dolphins. Based on the dat a in this fishery, 
a report published by the Sea Turtle Restoration Project on longline fishing estimates that over 
18,000 dolphins are killed annually by longline fishing in the Pacific Ocean. The United States has 
also designated the "Atlantic pelagic lo ngline fishery " – in an area off the eastern coast of the 
United States – as a fishery harmful to marine mammals that requires a "take reduction plan " and 
formed a Pelagic Longline Take Reduction Team (PLTRT).  
48. The United States argues that the total nu mbers of reported  dolphin deaths from longlines 
are lower than those for dolphin sets in the ETP, and that the number of "interactions " that are 
reported  is low on a per -deployment basis. However, there are no comprehensive programs to 
monitor the harm cau sed to dolphins by longline fishing, and the percentage of observed fishing 
sets is too low to draw scientifically meaningful conclusions.  Difficulties also arise from the fact 
that the lines can be as long as 90 miles in length, which would impair the ab ility of observers to 
see the deaths and injuries as they are occurring.  
49. The evidence on the record establishes that longline fishing kills tens of thousands of 
dolphins per year. This level of harm exceeds the adverse effects of AIDCP -compliant dolphi n 
encirclement in the ETP. Notwithstanding these facts, the tuna measure permits tuna caught using 
longlines to be used to produce tuna products eligible for the US dolphin -safe label, while tuna 
products produced using tuna harvested in AIDCP -compliant do lphin encirclement sets is never 
eligible, even if an independent, scientific observer certifies that no dolphins were killed or injured 
in a fishing set.  
50. Trawl Fishing.  The Panel in the first compliance proceeding found that trawl fishing for 
tuna res ults in dolphin mortalities. An article published by Greenpeace International reports 
significant dolphin mortalities caused by the trawl net fishing method, including on example in 
which 30 dolphins were killed in one single haul of the net. Although it i s uncontested that trawl 
fishing is a highly destructive fishing method that kills dolphins in many fisheries, the United 
States applies a presumption that this is a safe fishing method for dolphins that should be eligible 
for the dolphin -safe label. As in  the cases of gillnet and longline fishing, it is not even -handed for 
the tuna measure to unconditionally disqualify the AIDCP dolphin -safe fishing method from 
producing tuna eligible for dolphin -safe products, but not to disqualify the trawl method.  
51. Handline Fishing.  It is well -established that tuna regularly associate with dolphins in the 
Indian Ocean and other ocean areas, just as they do in the ETP, and that handline fishers chase 
herds of dolphins specifically to locate the tuna swimming beneath th em. 
52. Mexico 's evidence establishes that (i) the ETP is not the only place in the world in which 
tuna routinely associate with dolphins, as the United States has argued, and (ii) that other fishing 
methods intentionally "target " dolphins to find tuna. Mo reover, if, as the United States argues, the 
"chasing " of dolphins to locate tuna is presumed to be "intrinsically " or "particularly " harmful to 
dolphins, regardless of whether or not any dolphin mortality or serious injury has been caused in 
the process, then the tuna measure must disqualify tuna caught by handlines in association with 
dolphins in order to be even -handed.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  53. Unregulated Purse Seine Fishing.  The panels in the original and first compliance 
proceedings found that purse seine fishing in gener al may result in substantial dolphin bycatch, 
even when it does not involve the encirclement of dolphins.  In the current proceedings, the 
evidence on the record establishes that purse seine sets on floating objects, such as fish -
aggregating devices (FADs),  is a highly destructive method, and that FAD fisheries cause 
thousands of dolphin mortalities. This evidence includes, for example, a report sponsored by the 
U.S. Department of Commerce in which scientists estimated that about 2,000 dolphins were being 
killed each year by a fleet of five tuna purse -seiners using fish -aggregating devices in the 
Philippinnes, and a report in which a single FAD set that killed 180 dolphins was observed, among 
others. On the basis of this evidence, it is not even -handed for th e tuna measure to allow tuna 
products made with tuna caught in FAD purse seine fishing sets to be eligible for the US dolphin -
safe label, while it prohibits tuna products made with tuna harvested using the AIDCP dolphin -safe 
fishing method from conditional  eligibility.  
54. AIDCP -Compliant Dolphin Encirclement Purse Seine Fishing.  By virtue of the AIDCP 
requirement for 100 percent observer coverage (by independent, highly -qualified scientific 
observers), the ETP large purse seine fishery has the most compreh ensive, accurate, and reliable 
data on dolphin mortality in the world. The evidence regarding the existence and magnitide of 
direct, observed mortalities caused by the AIDCP -compliant dolphin -encirclement method is not in 
dispute. This evidence demonstrate s that, in 2015, 96.4 percent of dolphin encirclement sets were 
made without causing any direct dolphin mortality or serious injury.  
55. Mexico does not agree that unobserved mortalities and serious injuries from 
AIDCP -compliant dolphin -safe sets, if they exist at all, always occur in every set or are material. 
This is a presumption (i.e., the panel in the original proceedings considered there to be "sufficient 
evidence … to raise a presumption that genuine concerns exist "), and it is based on evidence 
attempting to explain low population growth estimates that Mexico has vigorously refuted in the 
current proceedings with more recent evidence.  
56. The only objective scientific evidence of the magnitude of any unobservable harms caused 
by AIDCP -compliant dolph in encirclement is the evidence related to the growth of dolphin stocks in 
the ETP. The most recent evidence identifies errors in the previous population assessment surveys 
which indicate that the populations were likely seriously underestimated. One of th e Department of 
Commerce authors who participated in the prior dolphin population assessments has concluded in 
the more recent evidence that there is a high likelihood that, due to flaws in the design and 
execution of the population surveys, the northeaste rn spotted dolphin stock has been 
underestimated by more than 60 percent, and that the eastern spinner dolphin stock has been 
underestimated by 73 percent. Moreover, the United States agreed in 2009, based on population 
estimates, to a decision of the AIDC P Parties, on the advice of the Scientific Advisory Committee, 
to increase the ETP "stock mortality limits " (SMLs) for the two dolphin stocks that are most 
involved in the tuna fishery and which the United States has designated as "depleted " – from 648 
to 793 for the northeastern spotted dolphin, and from 518 to 655 for the eastern spinner dolphin. 
The action of the U.S. Department of Commerce in agreeing to increase the SMLs for the two 
"depleted " stocks contradicts the United States ' assertion that there is a reasonable basis to 
presume that there "could be " thousands of unobserved mortalities.  
57. Overall, the evidence on the record shows that direct mortalities in the ETP large purse 
seine fishery are well within the limits of sustainability, while the s uggestions of indirect, 
unobservable effects are speculative and unproven (generally arising in order to attempt to explain 
the mistaken premise that dolphin populations are not recovering at the expected rates).  
b. Eligibility Criteria  
58. The eligibility  criteria specify which fishing methods are prohibited from being used to 
catch tuna that can be designated as dolphin -safe. Only two methods are currently ineligible: 
dolphin encirclement and high seas large -scale driftnet fishing. All other tuna fishing methods are 
eligible to catch tuna that could be designated as dolphin -safe provided that the other labelling 
conditions are met. This difference in treatment between ineligible and eligible fishing methods is 
not even -handed.  
59. The evidence on the recor d establishes that hundreds of thousands of dolphins and other 
marine mammals are killed annually in commercial fishing operations. The United States has failed 
to prove that tuna fishing methods other than the AIDCP -compliant dolphin encirclement method 
in areas of the oceans outside the ETP do not result in equivalent or greater overall relative risks 
or levels of harm to dolphins.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  60. In particular, the eligibilty criteria permit tuna caught in gillnet fisheries in the Indian 
Ocean (where the United Stat es estimates there are over 60,000 dolphin mortalities annually) to 
remain eligible for the US dolphin -safe label, while prohibiting the tuna harvested using 
AIDCP -compliant dolphin encirclement sets in which no dolphins were killed or injured from ever 
being eligible. This alone is sufficient to establish that the tuna measure is not commensurate with, 
or properly tailored to, the relative overall risks or levels of harm to dolphins arising from different 
fishing methods in different areas of the oceans.  
61. Furthe r, under the tuna measure, all tuna caught during a voyage in which a dolphin 
encirclement set was made even one time is disqualified. In other words, if a fishing vessel, during 
a two -month voyage, made one dolphin encirclement set while all of its other sets were on FADs 
or unassociated, and no dolphins were killed or seriously injured during any of the fishing sets, all 
of the tuna caught by the vessel would be disqualified from the dolphin -safe label. Conversely, in 
the case identified by Mexi co where a vessel fishing in the West Pacific killed 180 dolphins in a 
single purse seine FAD set, all of the tuna caught by that vessel in other sets during that same 
voyage was eligible to have the dolphin -safe label.  
62. Thus, careful scrutiny of the de sign and application of the eligibility criteria in the light of 
the particular circumstances of the case reveals that the tuna measure 's regulatory distinctions 
lack even -handedness, such that the detrimental impact cannot be said to stem exclusively from  a 
legitmate regualtory distinction. Moreover, this shows that the tuna measure 's regulatory 
distinctions between tuna harvested in the ETP using the AIDCP dolphin -safe fishing method and 
tuna harvested using other fishing methods in other ocean areas is c learly not commensurate with, 
or properly tailored to, the relative overall risks or levels of harm to dolphins arising from different 
fishing methods in different areas of the oceans.  
c. The Certification Requirements  
63. Every Mexican tuna product contai ning tuna caught by a large purse seine vessel in the 
ETP must be supported by a signed statement from an independent, highly -trained scientific 
observer on board the vessel. The sole function of the AIDCP observer is specifically to observe all 
procedures  relating to dolphins during fishing sets, to monitor compliance with all mandatory 
dolphin -protection procedures, and to provide written reports (which are subsequently reviewed by 
the AIDCP International Review Panel) on any and all bycatch and interacti ons with marine 
mammals, including detecting and reporting on any mortalities or serious injuries caused to 
dolphins in the course of a fishing set. In contrast, tuna caught outside the ETP large purse seine 
fishery only needs to be self -certified as dolph in-safe by the captain of the fishing vessel that 
harvests it. Unlike the independent observer in the ETP, the captain has a number of other 
important responsibilities that take priority, e.g., the operation of the vessel, conducting fishing 
manoeuvers, an d the safety of the crew, among others. Those other responsibilities require the 
captain 's attention during fishing sets or gear deployments. As a practical matter, a fishing captain 
outside the ETP large purse seine fishery will either be (i) distracted a nd unable to give his or her 
full attention to identifying dolphin mortality or serious injury, or (ii) precluded by his or her other 
responsibilities from actually observing the fishing set at all.  
64. In the first compliance proceedings, the panel determ ined that t he evidence strongly 
suggested that certifying whether a dolphin has been killed or seriously injured during the course 
of a fishing set or a gear deployment is a highly complex task. In this regard, the panel found 
"especially telling " the fact  that the tuna measure itself recognized the necessity of training and 
education in equipping persons with the necessary technical know -how to ensure that they can 
properly certify the dolphin -safety of a tuna catch. The panel concluded that the United Sta tes had 
failed to rebut Mexico 's evidence that captains may not necessarily and always have the technical 
skills required to certify that no dolphins were killed or seriously injured, and that this may result 
in inaccurate information being passed to consu mers, in contradiction to the objectives of the 
measure.  
65. In the current proceedings, the online "training " program that the United States purports 
to provide to fishing vessel captains under the new tuna measure is superficial and filled with 
ambiguous  language. Further, the Department of Commerce has no mechanism to verify that a 
captain has read the short training document or adequately understands its contents. Moreover, 
two of the largest tuna product suppliers to the United States have both stated that it will not be 
possible to implement or enforce these training requirements. Thus, this amendment has not 
remedied the deficiencies and gaps that led the first compliance panel to determine that captains 
may not necessarily and always have the require d technical skills.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  66. As Mexico has previously noted, the accuracy of the dolphin -safe information provided to 
consumers on the U.S. label is essential to the achievement of the measure 's objectives. If the 
certification is inaccurate, then the error wil l be replicated throughout the tracking and verification 
process — to the extent that a functioning tracking and verification process exists — with the 
consequence that the tuna product produced using that tuna will be erroneously labelled. As 
explained ab ove, where there is a high risk that inaccurate dolphin -safe information will be 
provided to consumers, there is a high risk that the U.S. market will be used to encourage fishing 
fleets to catch tuna in a manner that adversely affects dolphins. Thus, a hi gher risk of inaccurate 
certification in an ocean area results in a higher overall risk of harm to dolphins in that ocean area.  
67. As a consequence, a relevant and material factor in both the "rational connection " 
assessment and the "calibration " assessme nt is that certain major suppliers of tuna for the U.S. 
market have been the subject of detailed reports by the European Commission identifying them as 
non-cooperating countries in fighting IUU fishing and unreliable in terms of accurate or complete 
report ing and record -keeping. For example, the Philippines was found to have a lack of checks on 
logbooks. Chinese Taipei  vessels were found to have inconsistent information concerning catch, 
master declarations, logbooks, International Commission for the Conser vation of Atlantic Tunas 
(ICCAT) statistic documents, and dolphin safety declarations . The United States has provided no 
explanation as to how or why the captains ' self-certifications from the fleets of these countries 
should be treated as reliable or accu rate. 
68. Noting that the Appellate Body 's guidance is to assess whether the tuna measure is 
calibrated to the risks to dolphins arising from different fishing methods in different areas of the 
oceans , it is pertinent and appropriate for the Panels to eval uate the application of the regulatory 
distinctions not just on the basis of the fishing methods, but also on where they are being used. 
The reliability (or unreliability) of a fishing fleet or the regulatory authorities that oversee the fleet 
are relevant  factors in the analysis.  
d. The Tracking and Verification Requirements  
69. Contrary to the United States ' assertions, arguments, and purported evidence, there 
remain dramatic differences between the design and application of the tuna measure 's different 
tracking and verification regimes applicable to the tuna harvested by large purse seine vessels in 
the ETP, on the one hand, and tuna harvested by other fishing methods in other ocean areas, on 
the other hand.  
70. The tuna measure continues to require tuna products made with tuna harvested in the ETP 
large purse seine fishery to be supported by the documentation required under the AIDCP regime. 
The first compliance panel found that the AIDCP 's comprehensive regime ensures that the 
information regarding wheth er or not a catch of tuna is AIDCP -certified dolphin -safe accompanies 
the tuna at every stage throughout the fishing and production processes, from the point of catch 
right through to the point of retail. Specifically, it found that every step of the catch  and canning 
process for tuna caught by large purse seine vessels in the ETP is prescribed, can be monitored by 
national and regional agencies, and is subject to some sort of governmental (including regional 
and international) oversight, and the responsibl e authorities are thus able to verify at any stage of 
the catch and canning process whether a particular batch of tuna is dolphin -safe. The factual 
circumstances underpinning these findings have not changed, and the panel 's findings continue to 
apply.  
71. In contrast, the most recently amended tuna measure is neither designed nor applied in a 
manner that can ensure that dolphin -safe certifications made outside the ETP can be connected 
with the tuna contained in a tuna product produced in the United States o r any other country. 
Unlike the Mexican tuna industry, most major tuna products companies in other countries are not 
vertically integrated. They purchase tuna from third party companies, and in many cases the tuna 
passes through several parties before it i s processed into a tuna product. The path of tuna from 
the point where it is harvested from the ocean to the point where it is processed into a tuna 
product for the U.S. market may involve transhipment at sea, consolidation from multiple fishing 
vessels in to a refrigerated carrier, and IUU fishing activities. Outside the ETP, however, there are 
no requirements under the tuna measure for, and no actual established practice of, segregating 
dolphin -safe tuna from non -dolphin -safe tuna in separate storage wells  or during transhipment. 
None of the documents submitted by the United States shows that even U.S. processors require 
fishing vessels to have separate storage wells for the segregation of dolphin -safe and non -dolphin -
safe tuna.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- B-24 - 
 
  72. The most recent amendmen ts to the tuna measure purport to require U.S. processors and 
importers to collect and retain for two years "information on each point in the chain of custody 
regarding the shipment of the tuna or tuna product to the point of entry into U.S. commerce ". 
However, the tuna measure imposes no obligation on U.S. processors or importers to validate or 
audit the documentation that they receive. Moreover, the Department of Commerce lacks 
jurisdiction to audit foreign fishing vessels, carrier vessels, and foreign pr ocessors on the basis of 
this documentation. Under other U.S. regulatory compliance programs (unrelated to fishing), a 
U.S. company would be expected to audit its suppliers or customers, and to have records of such 
audits available for review by U.S. gover nment authorities, but there are no such obligations under 
the tuna measure.  
73. These gaps and deficiencies are exacerbated in ocean regions where there is unreliable 
reporting and record -keeping. In this respect, the European Communities ' reports on Thai land, the 
Philippines and Chinese Taipei  are especially important.  For example, the report on Thailand found 
that the documentation schemes developed by the authorities for the purpose of traceability are 
being used incorrectly by operators, allowing them to launder fish by over -declaring the incoming 
quantities from erroneous catch certificates. Similarly, the report on the Philippines found that 
there is neither a working traceability system nor any measure to ensure that authorities are 
controlling the v eracity of information and traceability of transactions pertaining to the fishing and 
transhipment activities of their vessels. The report on Chinese Taipei  determined that there is no 
traceability system able to ensure full transparency in all stages of f ishing transactions (i.e. catch, 
transhipment, landing, transport, factory processing, export and trading), and there is no certainty 
that what is recorded in the authorities ' systems corresponds with what is recorded in the 
companies ' accounting and produ ction systems.  
74. The United States argues that the regulatory differences in the tuna measure 's tracking 
and verification requirements are calibrated because "it is appropriate to use a more 'sensitive ' 
mechanism where the risks of dolphin mortality and serious injury are high, and a less 'sensitive ' 
mechanism where the risks of dolphin mortality and serious injury are low. In this regard, the 
United States relies on the dissenting opinion of the minority panellist in the first compliance 
proceedings to j ustify a greater "margin of error " in the application of the measure to other fishing 
methods in other ocean areas. However, the United States ' position that calibration can justify 
"margins of error " in the accuracy of the dolphin -safe label among differe nt fishing methods and 
fisheries is legally incorrect. Such an interpretation ignores the large body of jurisprudence on the 
meaning of arbitrary or unjustifiable discrimination, which involves the question of whether or not 
a rational connection exists be tween the detrimental impact caused by the measure and the 
objectives of the measure. This is a crucial element of the legal analyses for both even -
handedness under Article 2.1 of the TBT Agreement and arbitrary or unjustifiable discrimination 
under the ch apeau to Article XX of the GATT 1994 because it ensures symmetry in the calibration 
tests conducted under each of these provisions.  
B. The Tuna Measure is Inconsistent with Art icles I:1 and III:4 of the 
GATT  1994 and Cannot be Justified under Article XX  
75. In its submissions, Mexico has established a prima facie case that the tuna measure is 
inconsistent with Articles I:1 and III:4 of the GATT 1994. The United States does not dispute these 
inconsistencies. Further, Mexico agrees with the United States that  the measure provisionally falls 
within the general exception in subparagraph XX(g) of the GATT 1994. Mexico and the United 
States disagree on whether or not the requirements of the chapeau of Article XX are met, namely 
the requirement that the measure mus t not be applied in a manner that constitutes a means of 
arbitrary and unjustifiable discrimination.  
76. The burden is on the United States to demonstrate that the requirements of the chapeau 
of Article XX are met.  
77. In the original compliance proceedin gs, the Appellate Body found that, in the 
circumstances of this dispute, an assessment of whether the requirements of the tuna measure 
are calibrated to the likelihood that dolphins would be adversely affected in the course of tuna 
fishing operations in th e respective conditions was relevant for an analysis of arbitrary or 
unjustifiable discrimination under the chapeau. The Appellate Body further found that, so long as 
the similarities and differences between Article 2.1 of the TBT Agreement and Article XX of the 
GATT 1994 are taken into account, it may be permissible to rely on reasoning developed in the 
context of one agreement for the purposes of conducting an analysis under the other. Thus, given 
that Mexico 's arguments under both Article 2.1 of the TBT Agreement and the chapeau  of 
Article   XX of the GATT 1994 are grounded in the assssment of arbitrary and unjustifiable WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- B-25 - 
 
  discrimination, it is appropriate for Mexico to rely upon its submissions regarding the lack of 
calibration under Article 2.1 to establis h that the 2016 tuna measure is applied in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination between countries where the same 
conditions prevail, such that the requirements of the chapeau are not met.  
78. The Panels need only t o find that there is evidence of one example where the tuna 
measure is not designed or applied in a manner that is commensurate with, or properly tailored to, 
the overall relative risks or levels of harm to dolphins arising from different fishing methods i n 
different ocean areas in order to conclude that the United States has not satisfied its burden. 
Mexico has presented considerable evidence and arguments to demonstrate that (i) the tuna 
measure was never "properly tailored to " and is not otherwise "calibrated" to the risk profiles of 
the ETP large purse seine fishery and other tuna fisheries, and (ii) the tuna measure is designed 
and applied in a manner that constitutes a means of arbitrary and unjustifiable discrimination.  
79. Consequently, the tuna meas ure cannot satisfy the require ments of the chapeau of 
Article  XX, and the United States has not met its burden to show otherwise. Therefore, the 
inconsistencies with Article I:1 and III:4 of the GATT 1994 cannot be justified under Article XX of 
the GATT 19 94. 
IV. CONCLUSION  
80. For the reasons set out in Mexico 's submissions in these two proceedings, Mexico 
respectfully requests that the Panels reject the United States ' claims under Article 21.5 of the DSU 
in their entirety and find that the tuna measure is  inconsist ent with Article 2.1 of the 
TBT Agreement and Articles I:1 and III:4 of the GATT 1994, and ca nnot be justified under 
Article  XX of the GATT 1994.  
 
 
_______________  
 
 
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Executive sum mary of the arguments of Australia  C-2 
Annex  C-2 Executive summary of the arguments of Brazil  C-5 
Annex  C-3 Executive summary of the arguments of Canada  C-8 
Annex C -4 Executive summary of the arguments of Ecuador  C-12 
Annex C -5 Executive summary of the  arguments of the European Union  C-13 
Annex C -6 Executive summary of the arguments of Japan  C-16 
Annex C -7 Executive summary of the arguments of New Zealand  C-19 
Annex C -8 Executive summary of the arguments of Norway  C-21 
 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-2 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA  
I. INTRODUCTION  
1. Australia 's statements have addressed several issues raised in these proceedings under the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (DSU).  
2. This summary sets out Australia 's views on the function and scope of Article 21.5 of the DSU 
proceedings and the core inquiry of an analysis under Article 2.1 of the Agreement on Technical 
Barriers to Trade (TBT Agreement) . 
II. FUNCTION AND SCOPE O F PROCEEDINGS UNDER ARTICLE 21.5  
3. The Appellate Body has stated that a compliance review should not be confined to an 
assessment of whether a responding Member has implemented a Dispute Settlement Body (DSB) 
recommendation. Article 21.5 of the DSU instead requires a panel to examine the consi stency of 
the measures taken to comply with the WTO Agreement.1 
4. The Appellate Body has also previously noted that these proceedings form part of a 
continuum – this requires due recognition to be accorded to the recommendations and rulings 
made by the DS B in the original proceedings, based on the adopted findings of the Appellate Body 
and original panel.2 
5. Australia does not consider that it is the purpose of a compliance review to re -open 
questions which have been substantively answered by the Appellat e Body in earlier proceedings 
and are not required to be re -visited in light of a new and different measure. Australia notes, in 
this context, that a key objective of the dispute settlement system is to promptly resolve disputes 
and provide clarity to Memb ers on their WTO obligations. In that regard, Australia considers that 
the Panel should focus its considerations on whether the 2016 IFR has addressed the issues which 
the Appellate Body found to cause the inconsistency of the previous measure with Article  2.1 of 
the TBT Agreement and Articles I:1 and III:4 of the General Agreement on Tariffs and Trade 
(GATT 1994).  
III. THE CORE INQUIRY OF A TBT AGREEMENT ARTI CLE 2.1 ANALYSIS  
6. The Appellate Body has made clear that not every instance of a detrimental impa ct on 
imports arising from a technical regulation constitutes a b reach of Article 2.1 of the 
TBT Agreement.3 Where such detrimental impact stems exclusively from a legitimate regulatory 
distinction, the technical regulation does not violate Article 2.1.4  
7. Thus, once a de facto detrimental impact on imports is established, Australia considers the 
crux of an Article 2.1 analysis is in determining whether the regulatory distinction at issue is 
designed and applied in a manner that is legitimate (or is inste ad designed and applied in a 
manner that constitutes a means of arbitrary or unjustifiable discrimination).  
IV. CONSIDERATION OF OBJ ECTIVES IN AN ARTICL E 2.1 ANALYSIS  
8. Australia considers that an assessment of the legitimacy  of the regulatory distinction  at issue 
must be made in light of the objective of the technical regulation. In Australia 's view, determining 
the legitimacy of the regulatory distinction requires an analysis of whether the regulatory 
distinction is rationally connected to the objective of the technical regulation. Where the regulatory 
distinction bears no rational connection to the objective of the technical regulation, Australia 
                                                
1 Appellate Body Report, Canada – Aircraft (Article 21.5), paras 40 – 42. 
2 Appellate Body Report, US – Tuna II (Article 21.5 – Mexico), para 7.112.  
3 Appellate Body Reports, US – COOL , para. 271.  
4 Appellate Body Reports, US – COOL , para. 271. WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  considers it would constitute arbitrary or unjustifiable discrimination and amount to a breach of 
Article 2.1 .  
9. Australia considers that the objectives of the measure at issue in this dispute formed an 
integral part of the calibration analysis articulated by the Appellate Body in the original 
proceedings, and that it is unnecessary for the Panel in these proce edings to undertake a revised 
analysis of the contribution of the policy objectives to the measure. Australia considers that the 
Panel instead ought to focus on, and make a decision with respect to, the defined issue in these 
proceedings – whether the 2016  IFR is consistent with the WTO Agreement – in accordance with 
the calibration analysis test which the Appellate Body has previously and clearly outlined, and 
which already takes account of the measure 's objectives.  
V. CALIBRATION ANALYSIS  
10. Australia co nsiders that the calibration analysis adopted by the Appellate Body in the original 
proceedings was used as a means of determining whether the regulatory distinction imposed by 
the measure at issue was legitimate (or instead constituted a means of arbitrar y or unjustifiable 
discrimination) in the particular circumstances of this dispute. The Appellate Body described 
calibration as having "special relevance in these proceedings ".5 It also clarified that calibration is 
"not, in and of itself, a generally appl icable test of whether detrimental impact stems exclusively 
from a legitimate regulatory distinction " but rather terminology that originated in the United 
States ' submissions.6 The Appellate Body further emphasised that the "use of the terms 'even-
handed ' and 'calibrated ' did not constitute different legal tests. "7 
11. In Australia 's view, calibration should be viewed as a useful analytical method when the 
circumstances of a case warrant its use. However, it should only be used to inform an analysis of 
the core inquiry – which is whether a regulatory distinction is legitimate, or instead constitutes 
arbitrary or unjustifiable discrimination. It is not of itself a test o f consistency with Article 2.1.  
VI. EVEN -HANDEDNESS  
12. Similarly, the even -handedness of a measure has been identified by the Appellate Body as 
one of the considerations that goes to determining whether or not a detrimental impact stems 
exclusively from a legitimate regulatory distinction as opposed to constituting arbitrary or 
unjustifiable d iscrimination.  
13. The Appellate Body first used the phrase "even-handed " in connection with Article 2.1 in 
US — Clove Cigarettes , saying that in making an assessment of whether a differentiation stems 
from a legitimate regulatory distinction:  
 …a panel mu st carefully scrutinize the particular circumstances of the case, that is, the 
design, architecture, revealing structure, operation, and application of the technical 
regulation at issue, and, in particular, whether that technical regulation is even -handed,  in 
order to determine whether it discriminates against the group of imported products.8 
14. The issue was again examined in US — COOL , which cited the Clove Cigarettes  decision. 
However, here, the Appellate Body appears to have treated even -handedness as being the test for 
legitimate regulatory distinction rather than merely part of the test, as had been the case in Clove 
Cigarettes,  in finding that:  
In assessing even -handedness , a panel must "carefully scrutinise the particular 
circumstances of the case… " (emphasis added)9 
15. The Appellate Body report in the original proceedings of the current matter cited the Clove 
Cigarettes  version of the test,10 but in the compliance proceedings the Appellate Body used the 
US — COOL  formulation (despite citing US — Clove Cigarettes ).11  
                                                
5 Appellate Body Report  US — Tuna II (21.5  — Mexico) , para. 7.101.  
6 Appellate Body Report  US — Tuna II (21.5  — Mexico) , para. 7.154.  
7 Appellate Body Report  US — Tuna II (21.5  — Mexico) , para. 7.98. 
8 Appellate Body Report US — Clove Cigarettes , para. 182.  
9 Appellate Body Reports US — COOL , para. 271. WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  16. In Australia 's view, as with the calibration analysis, even -handedness should be viewed as a 
useful analytical method when the circumstances of a case warrant its use. However, it should only 
be used to inform an analysis of the co re inquiry – which is whether a regulatory distinction is 
legitimate, or instead constitutes arbitrary or unjustifiable discrimination. It is not of itself a test of 
consistency with Article 2.1.  
VII. OBJECTIVES OF THE 20 16 TUNA MEASURE  
17. Australia agre es that the objectives set out by the Panel12 continue to be the objectives of 
the 2016 Tuna Measure.  In Australia 's view it is important to see these as inter -linked and 
mutually supportive objectives.  
VII CONCLUSION  
18. In its compliance stage report i n this matter, the Appellate Body "noted that, in determining 
whether the detrimental impact on imports stems exclusively from a legitimate regulatory 
distinction, the 'particular circumstances ' of the case may inform the appropriate way in which to 
assess  even-handedness in that specific case. " This is clearly true. The differentiations made within 
a measure, the bases on which those differentiations are made, and the way they interact with the 
measure 's objectives will all dictate the analytical process r equired of a panel in a given case.  
19. However, in Australia 's view, the core inquiry of any such assessment is determining 
whether the regulatory distinction at issue is designed and applied in a manner that is legitimate , 
or is instead designed and app lied in a manner that constitutes a means of arbitrary or 
unjustifiable discrimination. The particular analytical process adopted by a panel in the specific 
circumstances of a given case should give effect to, not replace, this core inquiry.  
 
                                                                                                                                                  
10 Appellate Body Report US — Tuna II (Mexico) , para. 215 note 461, para 225.  
11 Appellate Body Report  US — Tuna II (21.5  — Mexico) , para. 7.31, 7.97, 7.239.  
12 As set out in 'Questions in advance of the Panels ' Third Party session ' circulated 17 Janua ry 
2017:"first, ensuring that consumers are not misled or deceived about whether tuna products contain tuna that 
was caught in a manner that adversely affects dolphins, and, second, contributing to the protection of dolphins, 
by ensuring that the US market  is not used to encourage fishing fleets to catch tuna in a manner that 
adversely affects dolphins. " WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-5 - 
 
  ANNEX C -2 
EXECUTIVE SUMMARY OF T HE ARGUMENTS OF BRAZ IL 
1. Brazil's comments focus on the following issues: (i) the scope of the even -handedness test; 
(ii) the characterization of the Tuna measure; (iii) the relationship between the even -handedness 
test and the objective of the measure, and (iv) the role of Article 2.2 of the TBT Agreement.  
 
I. The scope of the even -handedness test  
2. Brazil understands that the main issue before the Panel is what should be the proper scope 
for the even -handedness test to establish that Mexic an tuna is accorded treatment no less 
favourable that that accorded to like products of US origin or to like products originating in any 
other country, as provided for in Article 2.1 of the TBT Agreement. In Brazil's view, the Panel 
should adopt a holistic  approach in determining the elements that compose the even -handedness 
test, taking into account the objectives of the measure. The Panel should also ensure that the 
objective of the measure is assessed from a broader standpoint, in light of all the releva nt 
circumstances related to the protection of the legitimate objective, so as to reduce the room for 
concealing arbitrary and unjustifiable restrictions on international trade   
 
3. For Brazil, in formulating the even -handedness test in the present dispute, t he Panel should 
be guided by the level of adverse effects and not by the fishing methods. It is also important that 
the Panel do not lose sight of the importance that the even -handedness of the measure be 
assessed on the basis of performance requirements, and not in relation to a specific technology. In 
this regard, the Panel should be cautious of statements that suggest that the only fishing methods 
that do not pose any harm to dolphins are those adopted by developed countries with ample 
means to purchase the most novel (and expensive) technologies.  
 
II. The characterization of the Tuna measure  
4. Brazil does not dispute that WTO Members have the right to adopt technical regulation to 
pursue their legitimate objectives and that preventing adverse effects to d olphins is a legitimate 
objective. Brazil recalls however that, as the Appellate Body has ruled in previous disputes, 
adjudicators are not bound by a Member's characterization of its measure, making it clear that the 
formulation of a measure cannot encompa ss discriminatory exceptions unrelated to its objective.   
 
5. In these proceedings, the United States has identified its objective in relation to fishing 
methods and their adverse effects to dolphins. The question, thus, is whether, given the particular 
circumstances of the case, focusing exclusively on the fishing methods as the eligibility criteria for 
the US "dolphin -safe" could justify a different regulatory treatment for Mexican tuna.  
 
6. In this regard, Brazil agrees with Mexico that "it is essential that  the Panel distinguish 
between the activities that define the fishing method and the level of adverse effects on dolphins 
caused by those activities".  This is a similar consideration as the one made by Professor Mavroidis 
in discussing the Appellate Body Report in the original proceedings:  
 
"The question before the Panel should be whether the 'dolphin -safe' label had 
been accessible to all tuna meeting the regulatory requirements irrespective of 
the manner in which it had been fished. Performance requireme nts (e.g., all 
who use a fishing method for tuna which guarantees that x or less quantity of 
dolphins will be killed will have access to a 'dolphin -safe' label) are preferable to 
process requirements (only those who use a particular fishing technique will 
have access to the 'dolphin -safe' label) for a number of reasons ranging from 
reaping gains from innovation to reducing the risk for protectionism by 
promoting a domestic technique, and shifting adjustment costs to foreign 
imports."  
 
7. In Brazil's view, the level of adverse effects to dolphins would need to be assessed by 
measurable (quantitative) performance requirements, as for instance, the evidence related to the WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-6 - 
 
  growth of dolphin stocks, as suggested by Mexico.  Hence, the mere reference to possible 
unobserved consequences of different fishing methods cannot justify less favourable treatment. 
Such effects need to be measured, so that it is possible to assess whether the detrimental 
treatment is calibrated to the risk to dolphins in different fisheries .   In this context, Brazil would 
also like to caution the Panel against widening the margin for the adoption of non -product related 
PPMs 
8. Moreover, it makes little sense that the contribution of a given fishing method to the 
protection of dolphins shoul d be considered in isolation, while this same method may be harmful to 
other species or to the marine environment.  
 
III. The relationship between the even -handedness test and the objective of the 
measure  
9. Brazil is of the view that even -handedness needs  to be assessed in relation to both 
objectives of the measure, as initially characterized by the United States in the original 
proceedings namely: i) "ensuring that consumers are not misled or deceived about whether tuna 
products contain tuna that was caug ht in a manner that adversely affects dolphins"; and ii) 
"contributing to the protection of dolphins, by ensuring that the US market is not used to 
encourage fishing fleets to catch tuna in a manner that adversely affects dolphins". The first 
relates to co nsumer protection and the second to the protection of the environment.  
 
10. In what concerns the consumer protection aspect of the measure, Brazil understands that 
the US's definition of "dolphin safe" is particular sensitive of the way tuna is caught and  would not 
allow consumers to be informed of the reduction in dolphin mortality made possibly by other 
methods. In Brazil's views nothing on the records of these proceedings seem to support the 
assertion that consumers are more concerned with the way tuna is caught than with the adverse 
effects to dolphins.  
 
11. Brazil understands that in these proceedings the United States has tried to present the Tuna 
Measure as primarily related to the protection of dolphins, adapting the formulation of the 
objective of the measure to suit its own purposes. Yet if the Tuna Measure is not designed to 
protect consumers in US territory – but dolphins in all quarters of the world – this would mean that 
the United States would be acting beyond its jurisdiction.  
 
12. This woul d be very different from the situation in US-Shrimp . In that case, the Appellate 
Body explained that, since turtles were a migratory species occurring also in US territorial waters, 
the measure had a sufficient territorial connection to be justified under Article XX of the GATT.1 In 
the present dispute, whether there is such a territorial link was never part of the equation, for the 
measure has always been mainly about consumer protection. However, if we are now to accept the 
US's argument that the measure main objective is the protection of dolphins all over the world, 
and that consumer information is only a secondary aspect of the measure, then these 
considerations become not only relevant, but would need to be clearly established.  
 
13. Brazil considers t hat, by emphasizing the environmental aspects of the measure to the 
detriment of its consumer information component, the United States is purposely trying to divert 
the Panel's attention from the measure's shortcomings concerning accuracy.  
 
14. Brazil is not convinced by the United States' argument that, given that dolphin protection is 
the main objective of the measure, if the measure is appropriately calibrated to the risks to 
dolphins in different areas of the ocean, then any regulatory distinctions, in cluding the differences 
in accuracy of the information contained in the dolphin safe label, are consistent with the 
measures objectives.  For Brazil, it is difficult to see how a measure that, in some cases, can result 
in granting the US dolphin -safe label  to tuna caught in a fishing trip whether dolphins were killed 
or seriously harmed could be capable of fulfilling its legitimate objectives. It seems only logical 
that the granting of the dolphin safe label in such situation would not only be misleading to  
consumers, but it also would not contribute to the objective of dolphin protection.   
 
15. In Brazil's view, the United States is misinterpreting the reasoning of the Appellate Body in 
paragraphs 7166 to 7169 of its report in the first compliance proceedi ngs. There, the Appellate 
                                                
1 Appellate Body Report, US-Shrimp , para. 117 -119. 
 WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  Body faulted the Panel for having segmented its analysis, and for not considering that "the 
accuracy of the US dolphin -safe label can be compromised at any stage of the tuna production 
stage, in contradiction with the objectives o f the amended tuna measure". It is thus clear that 
accuracy is a fundamental element of the analysis.  
 
16. As Brazil sees it, while the Appellate Body made clear that even -handedness is also relevant 
when assessing the tracking and verification requiremen ts, it has never suggested that differences 
in risk profiles in different fisheries would justify diminishing the accuracy of the measure. This is 
to say that there may be differences in the means the Tuna Measure employs to certify that no 
dolphins were k illed or seriously harmed but under no circumstance should such differences result 
in mislabelling of the tuna products.  
 
17. Brazil is also not convinced by the US's argument that ensuring that the measure is 
calibrated to the different risk profiles in different fisheries would automatically entail that the 
measure is also calibrated to the different certification, tracking and verification requirements. As 
the Appellate Body has explained, the "assessment of the even -handedness of the amended tuna 
measu re must take account of the fact that its various elements – the eligibility criteria, the 
certification requirements, and the tracking and verification requirements -  establish a series of 
conditions of access to the dolphin -safe label".  This means that  both objectives of the measure 
need to be assessed in relation to all its elements.  
 
IV. Conclusion: The role of Article 2.2 of the TBT Agreement  
18. Brazil considers that a large part of the difficulties in crafting a consistent test of even -
handedness in this dispute results from the fact that Members are dealing with one single, narrow 
definition of dolphin -safe designed unilaterally by the United States and to be enforceable 
worldwide. In Brazil's opinion, there are different ways to protect dolphins.  The AIDCP countries 
made large investments to ensure that dolphin mortalities in the ETP were reduced to levels 
approaching zero. They adopted stringent certification criteria to make sure that no tuna caught in 
a manner that adversely affects dolphins wo uld be granted the AIDCP dolphin -safe label. Yet, they 
can neither use their label in the US market, nor can they inform consumers of how they are 
ensuring the protection of dolphins. At the same time, the United States is claiming that accuracy 
is not a r elevant consideration of the Tuna Measure, which means that the measure is not capable 
of fulfilling its consumer information objective.  
 
19. In the original proceedings, the Appellate Body found that the AIDCP dolphin safe label 
would not be a less trade restrictive alternative to the US dolphin safe -label because it was limited 
to the ETP and did not address unobserved mortalities. However, given the shortcomings of the 
Tuna Measure, the Appellate Body could be confronted with a scenario where labels rela ting to the 
protection of dolphins in different fisheries coexisted in the US market. These would be less trade 
restrictive alternatives to the Tuna Measure that would allow consumers to fully exercise their 
preferences in relation to dolphins protection m easures. The Appellate Body's jurisprudence in US-
COOL (21.5) could be relevant in this regard.  
 
20. Brazil understands that Article 2.2 of the TBT Agreement is not being raised in these 
compliance proceedings. However, as Canada has argued in its Third P arty Submission, the 
balance of rights and obligations under the TBT is not safeguarded exclusively by Article 2.1. Brazil 
feels that, in these proceedings, the Appellate Body has fallen short of giving Article 2.2 its full 
meaning.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX C -3 
EXECUTIVE SU MMARY OF THE ARGUMEN TS OF CANADA  
I. THE LEGITIMATE REGUL ATORY DISTINCTION TE ST UNDER ARTICLE 2.1  OF THE 
TBT AGREEMENT IS NOT  A TEST OF "EVEN -HANDEDNESS"  
A. The Legal Standard to be Applied  
1. The United States and Mexico disagree on how to apply the legiti mate regulatory distinction 
(LRD) test under Article 2.1 of the TBT Agreement.  In particular, the disputing parties advance 
competing views on the relevance of "calibration" and its role in assessing whether the detrimental 
impact to competitive opportuni ties for imported products arising from the amended measure 
stems exclusively from a legitimate regulatory distinction.  
2. The arguments of the disputing parties rely on previous panel and Appellate Body Reports in 
this dispute, which have found that asses sing whether the regulatory distinctions are properly 
calibrated to the risks to dolphins posed by the various fishing methods used is an appropriate 
basis upon which to determine whether the measure is "even -handed" and therefore meets the 
LRD test.  
3. Canada agrees that, in the circumstances of this dispute, calibration is a valid conceptual 
tool to determine whether the detrimental impact on competitive opportunities for imported 
products arising from the design or application of the measure stems exclus ively from a LRD.  
However, Canada does not agree that even -handedness is the appropriate legal standard to be 
applied in determining whether the detrimental impact on competitive opportunities for imported 
products stems exclusively from a LRD.  
4. The eve n-handedness legal standard, as first articulated by the Appellate Body, derives from 
the sixth recital of the preamble of the TBT Agreement.  According to the Appellate Body, the 
language of the sixth recital suggests that Members have a right to use tech nical regulations in 
pursuit of their legitimate objectives, provided that they do so in an even -handed manner and in a 
manner that is otherwise in accordance with the provisions of the TBT Agreement.  
5. In Canada's view, refashioning the explicit language  of the sixth recital into the vague and 
subjective concept of even -handedness is neither necessary nor appropriate as a descriptor for the 
legal standard to be applied. Specifically, the term even -handedness has no clear relationship with 
the "arbitrary o r unjustifiable discrimination or a disguised restriction on international trade" 
standard articulated in the sixth recital.  
6. There are at least three reasons why the even -handedness legal standard, as articulated by 
the Appellate Body in US – COOL , is n ot appropriate in the context  of the LRD test in 
TBT Article  2.1. 
7. First, in Canada's view, there is no textual support for even -handedness as an independent 
legal standard. The term does not appear in either the fifth or sixth preambular recital or in 
Article 2.1 itself. Despite this, starting with US – COOL , the Appellate Body appears to have 
framed even -handedness, not as short -hand for the interpretive guidance found in the sixth 
recital, but as an independent legal standard that must be met to comply  with the non -
discrimination obligation in Article 2.1.  More specifically, the Appellate Body took the position that 
arbitrary and unjustifiable treatment is simply an example of the absence of even -handedness.  
8.  Second, Canada considers that there is n o obvious contextual or even conceptual 
relationship between the language in the fifth and sixth recitals of the TBT Agreement and even -
handedness as an independent legal standard.  
9. The fifth and sixth recitals contain two central legal concepts. The fir st concept is necessity. 
The second concept is the requirement that, even when measures are necessary, they must not be WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-9 - 
 
  applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination (AUD), or 
a disguised restriction on internati onal trade.  
10. The necessity concept is explicitly captured by the obligation in Article 2.2. Canada is 
therefore of the view that the concept has, at most, a very limited role to play in the interpretation 
of Article 2.1. Otherwise, it could result in th e conflation of the disciplines of Articles 2.1 and 2.2.  
11. The AUD and disguised restriction language, on the other hand, is clearly relevant to the 
non-discrimination obligation in Article 2.1, which, by its nature, focuses on regulatory distinctions 
between products. This link is not, in principle, different from the relationship between the 
non-discrimination obligations in the GATT, such as Article III:4, and general exceptions in 
GATT  Article  XX. 
12. The LRD element in TBT Article 2.1 reflects the sa me balance found in GATT Articles III:4 
and XX. This is the balance between the right to regulate and desire to ensure that regulatory 
measures do not constitute a means of AUD, or a disguised restriction on international trade, as 
indicated in the sixth r ecital of the preamble to the TBT Agreement.  
13. In both Brazil – Retreaded Tyres  and EC – Seal Products , the Appellate Body identified the 
AUD phrase as encapsulating the idea of a rational connection between discrimination caused by 
the measure and its p olicy objective.  Such a rational connection exists where there is a close and 
genuine relationship of ends and means between the discrimination (or, in the case of 
TBT Article  2.1, the regulatory distinction) and the policy objective being pursued.  
14. Of course, the precise nature of the terminology used would matter less if it was made clear 
that when we speak of "even -handedness" we are really talking about arbitrary or unjustifiable 
discrimination. The Appellate Body seemed to suggest as much in US - Tuna II  (Mexico) when it 
said that the sixth recital sheds light on the meaning and ambit of the "treatment no less 
favourable" requirement, by making it clear that technical regulations may pursue legitimate 
objectives but must not be applied in a manner t hat would constitute a means of AUD.  
15. However, as Canada explained earlier, the Appellate Body's shifting language indicates that 
it does not consider even -handedness to be limited in this manner.  
16. The third reason that Canada considers the Appellate  Body's interpretive reasoning to be 
problematic has to do with potential for an imbalance to arise between the GATT and the 
TBT Agreement.  
17. This imbalance could arise where a technical regulation is challenged under both the 
TBT Agreement and the GATT.   If that measure were to be challenged under both TBT Article 2.1 
and GATT Article III:4, and is found to have resulted in a detrimental impact on the competitive 
opportunities on imports, it is at least conceivable that it could be found to be justified under 
GATT  Article XX but at the same time be found to have violated Article 2.1.  
18. This possibility would exist because the legal standard for satisfying the LRD test is 
seemingly different from, and more stringent than, the test in the chapeau of Artic le XX. The 
Appellate Body has indicated that the absence of AUD is not sufficient to show that the measure is 
even-handed.  Thus a technical regulation that does not give rise to AUD can nevertheless fail the 
even-handedness standard.  As a result, the mea sure would violate TBT Article 2.1, while at the 
same time being justifiable under GATT Article XX because it complies with the AUD standard in 
the chapeau.  
19. This is incongruous with the Appellate Body's statement in US – Clove Cigarettes  that the 
balan ce between trade liberalization and the right to regulate reflected in GATT Article III:4 and 
Article XX is, in principle, not different from the balance reflected in Article 2.1 of the 
TBT Agreement.  Canada considers that it would also be incongruous wit h the object and purpose 
of the TBT Agreement.  
20. Canada therefore considers that the appropriate standard for whether the detrimental 
impact on competitive opportunities for imported products stems exclusively from a legitimate 
regulatory distinction in Article 2.1 should simply be whether that regulatory distinction, whether WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-10 - 
 
  in its design or application, gives rise to arbitrary or unjustifiable discrimination, or a disguised 
restriction on international trade.  
B. The relationship between the LRD legal st andard and calibration  
21. In regard to the case at hand, Canada considers that the question of whether the 
US measure is calibrated does not need to be answered with reference to whether the measure is 
"even -handed".  Rather, in Canada's view, whether the  measure is calibrated fundamentally is a 
question of whether there is a rational connection between the policy objective being pursued and 
the regulatory distinctions being drawn.  
22. A measure that is not calibrated to the risks to dolphins arising from the various fishing 
methods used in different parts of the oceans may result in tuna being labelled and sold on the US 
market as dolphin safe when it is not. This would run contrary to the stated objectives of the 
measure and would therefore fail the ratio nal connection test under the AUD legal standard. This is 
consistent with the AUD standard elaborated by the Appellate Body in Brazil – Retreaded Tyres  
and affirmed in EC – Seal Products . 
23. Therefore, the Panels need not, and should not, resort to the ev en-handedness legal 
standard. To determine whether the US measure meets the LRD test, all it needs to do is 
determine whether there is a rational connection between the US measure and the objectives it 
pursues; a measure that is properly calibrated to the risks to dolphins arising from the various 
methods of fishing tuna in different areas of the oceans would reflect such a rational connection.  
C. Establishing Whether the Measure Satisfies the LRD Test Requires an 
Examination of the Relationship Between the  Regulatory Distinction and 
the Objective of the Measure   
24. As the Appellate Body indicated in US – Tuna II (Mexico) (Article 21.5 – Mexico) , 
determining whether the measure is even -handed, and therefore that the detrimental impact 
stems exclusively fro m a legitimate regulatory distinction, hinges on the relationship between the 
measure and the policy objective(s) being pursued. If there is no nexus between the regulatory 
distinctions drawn by the measure and the objective being pursued, or that relation ship is weak, 
this would indicate that the measure is not even -handed.  Further, as the Appellate Body indicated 
in US – COOL , such a scenario can arise where the regulatory burden imposed on producers is 
disproportionate relative to the amount or accuracy  of the information provided to the consumer.  
25. Similarly, in the case of the US measure at issue in this dispute, the Appellate Body has 
determined that a key element in determining whether the measure is even -handed is whether the 
labelling conditions are calibrated to – that is, they accurately reflect – the risks to dolphins arising 
from the different fishing methods. The relevance of calibration to risks arises from the policy 
objectives being pursued. Labelling conditions, including tracking and ver ification requirements, 
that are properly calibrated as to risks minimizes the likelihood that a tuna product will be 
improperly labelled as dolphin -safe or improperly prevented from using the label; it therefore 
strengthens the accuracy of the label, thus  contributing to the policy objective of ensuring that 
consumers are not misled by the presence of a dolphin -safe label on tuna products.  By extension, 
an accurate label allows consumers to exercise their preference for dolphin -safe tuna, thus 
incentivizi ng tuna producers to adopt harvesting measures that minimize risks of adverse effects 
to dolphins.  
II. THE ROLE OF THE OBJE CTIVE OF SUS TAINABLE DEVELOPMENT  IN THE 
WTO  AGREEMENT  
26. Mexico claims that the 2016 Tuna Measure is inconsistent with TBT Article 2 .1 because "it 
discriminates against an environmentally sustainable fishing method in favour of one that is 
unsustainable". Mexico's argument is based on the reference in the first recital in the preamble of 
the WTO Agreement to "the optimal use of the wor ld's resources in accordance with the objective 
of sustainable development".  
27. Canada considers that Mexico's characterization of the role that the reference to sustainable 
development in the preamble plays in the interpretation and application of the WT O obligations is WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-11 - 
 
  misplaced, and that Mexico's claim that Members' measures that are inconsistent with the 
objective of sustainable development are ipso facto  inconsistent with their WTO obligations is 
incorrect.  
28. The preamble to the WTO Agreement makes it clear that optimal use of the world's 
resources in accordance with the objective of sustainable development is an important principle 
underlying the WTO Agreement. However, given its preambular status, the role of the reference to 
sustainable developmen t in respect of the WTO Agreement itself is circumscribed by the customary 
rules of treaty interpretation, as codified in the Vienna Convention on the Law of Treaties 
(Vienna  Convention).  
29. The WTO jurisprudence also confirms the use of the preamble to d etermine the object and 
purpose of the treaty, or to inform the meaning of its provisions. The preamble to the 
TBT Agreement informs the meaning of the term "treatment no less favourable" as used in 
Article  2.1. However, this does not mean that the referen ce to sustainable development in the 
preamble can be used to insert a requirement for consistency with this principle as a precondition 
for consistency with Article 2.1.  
30. Further, the Appellate Body has previously found that the sixth recital of the pre amble to the 
TBT Agreement does not set out a test that is separate and independent from Article 2.1 itself.  
Canada considers that this is equally true of the reference to sustainable development in the first 
recital of the WTO Agreement, and consistent w ith Canada's view that compliance with Article 2.1 
does not require a separate examination of whether the measure at issue is consistent with the 
objective of sustainable development.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX C -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF ECU ADOR* 
The purpose of  Ecuador's brief intervention as interested third party in this session devoted to 
"third parties" in the dispute United States – Measures Concerning the Importation, Marketing and 
Sale of Tuna and Tuna Products , and specifically the recourse by the United  States to Article 21.5 
of the Dispute Settlement Understanding (DSU) and second recourse by Mexico under the same 
article, is to highlight the importance of complying with the provisions of the DSU.  
 
For us, the text of Article 21 of the DSU is clear and precise in providing for "prompt 
implementation", i.e. prompt compliance with the recommendations and rulings of the Dispute 
Settlement Body (DSB) for the sole purpose of ensuring resolution of a dispute. Clearly, this is 
only possible if the parties to a dispute have the will to abide by those provisions.  
 
Article 21 also refers to the particular attention that should be paid to matters affecting developing 
country Members of this Organization with respect to measures that are the subject of the dispute, 
matters and provisions which, in Mexico's view, the United States has not complied with, since we 
consider that the "dolphin safe" labelling measure has not been brought into conformity with the 
DSB's recommendations and rulings.  
 
Ecuador reiterates its pos ition in this respect that it is of the utmost importance for Members to 
maintain coherence and consistency with their obligations in respect of the covered agreements 
under the WTO, and hence the need for the DSB to monitor the implementation of its 
recom mendations and determinations. Only then will it be possible to maintain the WTO dispute 
settlement system as a central element in ensuring the security and predictability of the 
multilateral trading system which preserves the rights and obligations of Mem bers under the 
covered agreements.  
 
 
 
 
 
                                                
* Ecuador requested that its oral statement at the Panels' joint meetings with the parties be treated a s 
its executive summary.  The original statement was delivered in Spanish.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-13 - 
 
  ANNEX C -5 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  EUROPEAN UNION  
1. In the view of the European Union, the Panels should allow themselves to be guided by the 
Appellate Body clarifications in the previous proceedin gs. This means, among others, that the test 
of whether a technical regulation accords less favourable treatment to imported products proceeds 
in two steps: The first question is whether the technical regulation at issue modifies the conditions 
of competiti on to the detriment of such imported products vis -à-vis like products of domestic origin 
and/or like products originating in another country. If so, then as a second step it is to be 
assessed whether the detrimental impact on imports stems exclusively from  a legitimate 
regulatory distinction rather than reflecting discrimination against the group of imported products. 
Where the detrimental impact caused by a technical regulation stems exclusively from a legitimate 
regulatory distinction, such technical regu lation is not according less favourable treatment to 
imported products within the meaning of Article 2.1. As regards the test of whether the 
detrimental impact "stems exclusively from a legitimate regulatory distinction", a panel does not 
err by assessing whether the detrimental impact can be reconciled with, or is rationally related to, 
the policy pursued by the measure at issue. However, this must not preclude consideration of 
other factors that may be relevant to the analysis. The central concept for the  analysis is "even -
handedness". Even -handedness is a relational concept. It must be tested through a comparative 
analysis. Regulatory distinctions by definition treat groups or products differently. A proper 
assessment of even -handedness can only be made t hrough examination of the treatment accorded 
to all the groups that are being compared. In doing so, the Panels should consider whether the risk 
profiles of the relevant fisheries giving rise to the different groups of tuna products are the same 
or differe nt. In assessing whether the amended tuna measure is adequately calibrated to the 
relative adverse effects on dolphins arising outside the ETP large purse -seine fishery as compared 
to those inside that fishery, the Panels are asked to make factual findings  regarding the different 
risk profiles in these different fisheries.  
2. The Panels asked whether accuracy of the information can be considered merely as the 
means to achieve the main objective of protecting dolphins. The European Union makes four 
observati ons in this respect. First, as a doctrinal matter, the European Union cautions against any 
tendency to narrow down the analysis to a single, all -encompassing objective and to use such a 
singular objective as a basis for a roving inquiry into every detail o f a particular measure. As we 
noted previously in the COOL case, the broad assessment under Article 2.1, and in particular the 
assessment of even -handedness, cannot require regulatory measures to be as pure as the driven 
snow. In reality, every measure wil l have a variety of features that cannot be explained by a single 
overriding objective. A measure might have to mitigate adverse effects on a conflicting objective, 
or simply on a different objective implicated by the measure. This does not in itself mean that the 
measure is not even -handed, or that it reflects discrimination. To require that a measure can be 
entirely explained by a single objective, with other objectives only being means to an end or of an 
incidental nature, would set the bar prohibitively  high for any regulating Member.  
3. Second, we will consider the abstract conceptual link between the two objectives at issue in 
this case. On the one side, "ensuring that consumers are not misled or deceived about whether 
tuna products contain tuna that w as caught in a manner that adversely affects dolphins ", and on 
the other side "contributing to the protection of dolphins, by ensuring that the US market is not 
used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins ". On an 
abstract conceptual level the meaning of the objective of "consumer information " is not exhausted 
by considering it as a mere means to an end. The objective of "ensuring that consumers are not 
misled or deceived " is legitimate in its own right. In aimi ng for such an objective, a WTO Member 
may for example try to give its citizens an informed choice. It may try to make accurate 
information available and empower its citizens in taking their own decisions, based on their own 
assessments of the accurate inf ormation which they receive. All this may empower an active and 
responsible citizenry. This shows that the objective of ensuring that consumers are not misled may 
be an objective in its own right. It can go far beyond the objective of protecting of dolphin s.  
4. Third, on an abstract level and as regards the order of priority between different objectives: 
We do not see that on an abstract level, a panel should venture to establish a normative pyramid WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-14 - 
 
  of different objectives to which the panel would accord d ifferent weight. It would go beyond what 
could and should reasonably be expected from a Panel or the Appellate Body, and would indeed 
encroach on the regulatory space of WTO Members, if WTO dispute settlement organs were to try 
to establish an abstract pyr amid of importance for different objectives under Article 2.1.  
5. Fourth, the fact that in abstract terms, such objectives (accuracy of information and dolphin 
protection) may overlap but may remain independent of each other does not necessarily imply that  
the United States has presented them as fully independent in these proceedings.  
6. In addition to the observations set out in our written and oral statements, the European 
Union would like to respond to the Panels' questions, taken as a whole, with four main points.  
7. First, we do not consider that the Panels' task is limited to considering or focussing on only 
the eligibility criteria. On the contrary, we consider that the Panels must consider the measure as a 
whole, and this will necessarily include a consideration of the other elements, including the 
certification requirements, the tracking and verification requirements and the determination 
provisions. The Panels will have to take a view about the measure as a whole that is balanced and 
reasonable. In  this respect, we also observe that regulatory measures may legitimately pursue 
more than one objective simultaneously, and indeed this is quite usual. It is also quite possible for 
there to be multiple objectives that are, in some way, in counterpoint wit h each other. This may 
mean that the measure contributes towards achieving one particular objective, but that such 
contribution is inherently limited by the desire to purse the other objective at the same time. This 
does not in itself necessarily mean that  the measure is internally incoherent or inconsistent, 
disclosing the existence of de facto  discrimination.   
8. Second, we wish to emphasise again that regulatory space or regulatory autonomy is as 
much a pillar of the WTO legal system as MFN or national treatment. The WTO does not envisage 
complete international harmonisation. For similar reasons it does not envisage that successive 
panels on the same issue will gradually whittle away at the regulatory space of the regulating 
Member until but one regulato ry solution remains. Rather, a given regulatory problem may be 
susceptible to being dealt with by means of more than one regulatory response. For regulatory 
space to have any meaning there must be situations in which two or more solutions present 
themselve s, and the regulating Member remains free to choose between them without a panel 
second guessing that choice.  
9. In this respect, as the Appellate Body has explained, Article 2.2 of the TBT Agreement 
(which sets out a necessity test, not a pure or strong p roportionality test) contextually informs an 
analysis under Article 2.1 of whether or not there is de facto  discrimination. The concept of de 
facto discrimination is not itself a panacea (and should not be a first port of call), but is rather in 
the nature  of a safety -net to guard against abuse, in the form of facially origin neutral regulations 
that are in fact disguised restrictions on international trade. This means that, in the context of a de 
facto discrimination analysis, one should not over -extend be yond the normal necessity analysis. It 
is not the adjudicator's task to opine on what the appropriate trade -off should be between the 
legitimate objective and the trade restriction. That is a matter for the regulating Member when it 
fixes its ALOP (which d etermines what the regulating Member cares about, and how much it cares 
about it).  
10. In this case, what this means is that we should see that the relative risk profiles of the 
various fisheries on the one hand, and the treatment of those differences in t he design and 
architecture of the measure at issue, especially in terms of the regulatory costs imposed, on the 
other hand, are broadly comparable. For example, if one sees a difference of, for example, 
approximately 10:1 in the risk profiles, that is what  one would expect to see, approximately, in the 
measure at issue. A lower ratio (such as, for example, 8:1) should not even be an issue in this 
case, since that would mean that the measure at issue is relatively accommodating  to Mexico's 
trade interest. In  the presence of such a mismatch it would be both unnecessary and incorrect to 
conclude that there is an internal incoherence revealing de facto  discrimination. On the other 
hand, a higher ratio (such as, for example, 12:1) should not necessarily lead to a  finding of 
breach. These are approximations only. At the very least, when the Panels find themselves 
operating within the margin of error of the analytical tools at their disposal they should be 
extremely cautious about striking at the measure at issue, s ince there is a severe risk that, in 
doing so, they would be trespassing in the regulatory space of the regulating Member. Finally, if WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-15 - 
 
  the ratio appears to be very different (such as, for example, 20:1), then that may be an indication 
of breach.  
11. Of cou rse, what the margin of error actually is might, in itself, be difficult to quantify and 
might thus also be in the nature of an approximation or a qualitative assessment. In such 
circumstances, it would become particularly important to pay close attention to where the burden 
of proof lies.  
12. For these reasons we disagree with Mexico's assertion that the Panels should consider 
whether or not there is above de minimis  harm to dolphins elsewhere and if so find in Mexico's 
favour. To us, that is not the right  question. Rather, the question, as set out above, is whether or 
not the different risk profiles (be they de minimis  or otherwise) are adequately reflected in the 
design and architecture of the measure at issue.  
13. Third, the burden of proof with respect to the different risk profiles lies with the 
complainant, Mexico. Mexico complains that the US is demonstrating a sort of reverse "precaution" 
with respect to other fisheries because it declines to assume harm absent evidence to that effect. 
In this respec t, the EU notes, by way of context, that under Article 5.7 of the SPS Agreement 
(which is generally taken to embody some concept of "precaution") the obligation on the 
regulating Member is simply to seek to obtain the information necessary to make a more o bjective 
assessment of the risk. That does not mean that the regulating Member is itself required to 
conduct the necessary research on behalf of the interested party seeking market access. Rather, it 
can simply ask legitimate questions, and it is then for the interested party to adduce the necessary 
evidence. Thus, as long as Mexico understands what evidence is required, and as long as the US 
authorities are open to receiving such evidence, we do not see here any basis on which to support 
a claim of breach by Mexico. We understand that the relevant matters may be relatively hard for 
Mexico to prove, and that is something that the Panels can and should take into account – but the 
burden rests with Mexico.   
14. Fourth, we do not think that calibration (which is not treaty language) means precise 
quantitative analysis – or hyper or ultra -calibration. There is plenty of case law in the field of trade 
remedies that confirms that Members are not obliged to use quantitative methods. This is all the 
more true in the  area of regulatory law. Furthermore, as explained above, calibration does not 
mean that a panel can get into the question of whether or not it considers the trade -off between 
the legitimate objective and the trade restriction is acceptable, the fixing of the ALOP being a 
matter for the regulating Member.  
15. Rather, what calibration requires (and referring to the broadly comparable observation 
above) is that the Panels are satisfied that the establishment of the facts by the regulating 
Member was proper, a nd that the evaluation of those facts by the regulating Member was 
unbiased and objective. If this is the case, and the differences between the risk profiles and the 
various elements of the measure are broadly comparable, even though the Panels might 
thems elves have reached a different overall conclusion if they would step into the shoes of the 
regulator, the regulating Member's evaluation should nevertheless not be overturned. This is the 
only way in which the concept of regulatory space can be given meani ng in practice.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX C -6 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF JAP AN 
I. CALIBRATION OF RISK TO DETERMINE EVEN -HANDEDNESS UNDER ART ICLE 2.1 
OF THE TBT AGREEMENT   
1.  The Appellate Body has explained that an assessment of whether a technical regulation 
accords "no less favourable" treatment under Article 2.1 of the TBT agreement entails a two -step 
examination:  (1) whether the technical regulation modifies the conditions of competition to the 
detriment of imported products ; and (2) if so, whether the detrim ental impact from the measure 
stems exclusively from a legitimate regulatory distinction.  Japan's arguments focus on the second 
step of the analysis – whether the detrimental impact stems exclusively from a legitimate 
regulatory distinction.  
2. The Appell ate Body in the first Article 21.5 proceeding found that, " [i]n determining whether 
the detrimental impact on imports stems exclusively from a legitimate regulatory distinction, a 
panel must carefully scrutinize whether the technical regulation at issue is  even-handed in its 
design, architecture, revealing structure, operation, and application in the light of the particular 
circumstances of the case."1 Then, it  examined whether the different conditions for access to a 
"dolphin -safe" label were "calibrated" to the risks to dolphins arising from different fishing methods 
in different areas of the ocean.2 Japan understands that an examination of whether a measure is 
calibrated to the risk is an appropriate means of assessing whether a measure is even -handed and  
is therefore in accordance with Article 2.1.  
3. In light of the above, when considering whether the U.S. measure complies with Article 2.1 , 
the Panel should  examine whether the United States properly conducted a comparative analysis of 
the overall levels of risk to dolphins in different fisheries  and fishing methods , and whether the 
treatment under the U.S. measure accorded to each of the groups compared is properly calibrated 
to the levels of identified risk for that group.3 
A. Comparative Analysis o f Different Risks to Dolphins  
4. The analysis of w hether a measure is properly calibrated to the risk s, and therefore even -
handed, must begin with an objective identification of the risk s posed to dolphins  in each fisher y 
and by each fishing method , followed b y a comparative analysis of the relevant risk profile s.  An 
examination of whether a measure is properly calibrated also requires a comparison of the 
different labelling conditions  applied to each group vis -à-vis the risk s identified in each group . 
5. It is important to identify the nature and degree of the relevant risks which the measure at 
issue address es in a precise and objective manner.   In this respect,  Japan notes that the United 
States draws a distinction between the risk profiles in the ETP large purse seine fishery, on the one 
hand, and in all other fisheries, on the other .  However , the frequencies  of dolphin interaction and 
mortality in the different areas of oceans in the "other fisheries" may not be  identical.  Moreover, 
the evidence presented  by Mexico challenging the United States' factual examinations  appear to 
warrant further inquiry  into the accuracy of the stated differences in the risk profiles among the 
different fisheries examined by the United States.  To the extent that these differe nt fisheries  may 
have different risk  profile s, Japan believes that it is necessary to conduct a precise and objective 
identification of the risks followed by a comparison of the respective risk profiles  of the respective  
fisheries, rather than a comparison  only of the risks that exist in the ETP large purse seine fishery 
with the risks that exist outside of the ETP large purse seine fishery.  
                                                
1 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para. 7.31 (quoting Appellate 
Body Report, US – Clove Cigarettes , para. 182).  
2 See Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , paras. 7.152 and 7.239.  
3 See Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para. 7.161.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  B. Whether the Treatment Accorded to Each Group is Properly Calibrated to  
the Relevant Risks Taking Into Account the Objective of the Measure  
1. Whether the Different Treatment is Commensurate with the 
Relevant Risk  
6. Once the risk s are identified, a Member must determine whether the different treatment 
accorded to each group is commensurate with the relevant risk, taki ng into account the objective 
of the measure as determined by the implementing Member.   For such purpose, and thus to 
determine whether the measure  at issue is  even-handed, the Panel  should examine whether the 
regulatory distinctions (in the present case, the difference in conditions for tuna products' access 
to dolphin -safe labels) are tailored to the different risk profiles which exist in the different fisheries 
and fishing methods.  Moreover, although certain discretion is granted to Members when setting  
labelling conditions calibrated to different risk profiles, such  labelling conditions must be designed 
to ensure  that access to the dolphin -safe label is accorded to the tuna and tuna products from the 
fisheries that are at the same level of safety for do lphins .     
7. Japan notes  that the risk addressed by the United States through its measure may be 
mitigated or eliminated through policies implemented by other  government s.  These mitigation 
polices are not accounted for in the U.S. measure.  For example, as the United States 
acknowledges, the U.S. measure treats setting on dolphins, and the tuna product it produces, 
differently from other fishing methods and the tuna product that they produce. Even 
acknowledging that setting on dolphins is an inherently ha rmful fishing method, the U.S. measure 
does not provide for consideration of any other  measures or mechanisms that vessels or fisheries 
may employ to mitigate such harm and achieve the same level of safety  as other fishing methods 
that are eligible for the  dolphin -safe label.  In Japan's view, a viable measure should focus on  the 
risk and its relationship to the regulatory treatments in question  and should leave room for other 
Members to undertake policies that achieve the goal sought by the  measure in ques tion. 
2. Whether the Detrimental Treatment is Rationally Related to the 
Policy Objective of the Measure  
8. The question of whether the detrimental treatment can be reconciled with, or is rationally 
related to, the policy pursued by the measure at issue also provides valid context for whether a 
measure accords "treatment no less favourable" under Article 2.1,  as it constitute s part of the 
overall analysis of whether the U.S. measure is even -handed.  
9. Japan does not contest that  the United States  has the di scretion to implement measures to 
pursue legitimate objectives. However, such regulatory autonomy  is not unlimited  and 
implementation  of a measure in a manner that constitutes arbitrary or unjustifiable  discrimination  
between the like products at issue is not permitted .  To avoid situations where the grant of 
regulatory autonomy is boundless , the policy  objectives of the measure should be precisely 
articulated so that the Panel can determine whether the different treatments under different 
labeling conditio ns are rationally related to the policy objective . The Panel should also strictly 
review  whether the different treatments under different labeling conditions are appropriate ly 
designed  to pursue  that policy objective .   
10. The manner in which the United S tates defines and articulates its policy objective in 
implementing  a measure will be relevant in determining whether the chosen measure is properly 
calibrated to meet these objectives in light of the risks.   Further, in light of the above, it is the 
implem enting Member  that is best positioned  to present and explain to the panel that it  has clearly 
articulated the policy objective of a measure .  In the case at hand, it is therefore the United 
States , rather than Mexico , who is best placed to  provide a  clear articulation of its policy objective 
to the Panel.  
11. The dolphin -safe label only provides information on whether the product satisfies the 
labeling conditions , which , in turn,  reflect  the policy objective of the U.S. measure . However, 
Japan  considers  that the assessment of the accuracy of the information provided by the label is 
included in the even -handedness test . The Panel should therefore  ensure that a dolphin -safe label 
on each product represents a uniform level of dolphin safety according to the po licy objective, 
regardless of the risk profile of the fishery and fishing method, or the different labeling conditions.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  Different labeling conditions may be applied depending on the risk profiles of the fisher ies and 
fishing methods, but this is so  only i n such a  manner as to ensure that the same threshold is 
applied to each of the like products for access to the same labeling.  
II. INTERPRETATION OF AR TICLES III:4 AND XX OF THE GATT 1994  
12. Consistent with its views expressed in previous proceedings befor e the panels and the 
Appellate Body  in this case , Japan reiterates that an analysis of "no less favourable treatment" 
under Article III:4 of the GATT 1994 should also involve an assessment of the legitimacy of the 
measure in light of the policy objectives pursued by the measure. However, Japan will focus on 
how policy objectives should be considered under Article XX herein.  
13. In the present case, in relation to the Article XX chapeau, the Panel must assess whether the 
U.S. measure constitutes arbitrary an d unjustifiable discrimination , focusing on "the rationale put 
forward to explain [the] existence  [of the discrimination] ." The United States is in the best position 
to articulate the policy objective under lying the discriminat ory treatment  and the rationa le for the 
discrimination .  The Panel should then conduct a strict review of whether the United States has 
explained the rationale behind  the discrimination and the relationship between the discrimination 
and the policy objective,  and thus determine whethe r the discrimination contained in the U.S. 
measure  is aimed at achieving the regulatory objective of dolphin protection  in a consistent and 
even-handed  manner  for all like products,  including both domestic and foreign products .    
14. Finally, Japan notes that the "eligibility criteria" exclude tuna caught by large -scale high seas 
driftnet fishing and purse seine fishing by "setting on dolphins" from being eligible for the dolphin -
safe label .  The Panel should consider whether  such eligibility requirement  may constitute arbitrary 
discrimination, as it constitutes a "single rigid and unbending requirement" that allows "little or no 
flexibility in how officials made the determination []."4 In this connection, Japan  notes that  the 
Appellate Body in US – Shrimp  found that a "discrimination results not only when countries in 
which same conditions prevail are differently treated, but also when the application of the measure 
at issue does not allow for any inquiry into the appropriateness of the regulatory program fo r the 
conditions prevailing in those exporting countries."5 
15. In this respect, Japan notes the Appellate Body's finding that "[a]uthorizing an importing 
Member to condition market access on exporting Members putting in place regulatory programmes 
compara ble in effectiveness to that of the importing Member gives sufficient latitude to the 
exporting Member with respect to the programme it may adopt to achieve the level of 
effectiveness required."6  Japan's view is that where the regulatory distinctions are not based on 
the objective  characteristics of the products themselves, but rather, on the process or production 
method of the product – which may vary from country to country,  industry to industry,  and 
product to product  – an importing country is not neces sarily suited to adopt a single process or 
production method for achieving the level of effectiveness required.  
                                                
4 Appellate Body Report, US – Shrimp , para. 177.  
5 Appellate Body Report, US – Shrimp , para. 144.  
6 Appellate Body Report, US – Shrimp , para. 144.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX C -7 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NEW  ZEALAND  
I. INTRODUCTION  
1. New Zealand addresses two matters in this second compliance Pane l proceeding: first, the 
role of the calibration assessment in this dispute; and second, the legal status of the Preamble to 
the WTO Agreement. New Zealand’s comments reflects our systemic interest in the proper 
implementation of the Agreement on Technical  Barriers to Trade (TBT Agreement).  
II. CALIBRATION ASSESSME NT IN THIS DISPUTE  
2. Both complainants in this dispute appear to agree that the legal issue before the Panel is the 
interpretation and application of the calibration assessment discussed in the A ppellate Body report 
in the original proceedings. While New  Zealand does not wish to comment on the facts involved in 
the calibration assessment itself, New  Zealand does wish to comment on the role this assessment 
played in this dispute and what, if any, r ole it may play in future disputes under Article 2.1 of the 
TBT Agreement.  
3. The term calibration was first used in this dispute by the United States, who had argued in 
the original proceedings that the original tuna measure was even -handed, and thus cons istent with 
Article 2.1, because it was calibrated to the risks to dolphins arising from different fishing methods 
in different areas of the oceans.1 It was then used by the Appellate Body in the original 
proceedings to assess the United States' argument.  
4. The Appellate Body also used this term in the first compliance proceedings, where 
calibration was relevant to determining whether the regulatory distinctions drawn by the amended 
tuna measure, and the resulting detrimental impact, could be explained as commensurate with the 
different risks associated with tuna fishing in different oceans and using different fishing methods.2 
In other words, it again was part of the assessment of whether the amended tuna measure at 
issue was applied even -handedly.  
5. Therefore, the role of the calibration assessment in this dispute was as part of the test for 
even-handedness under Article 2.1 of the TBT Agreement. It was not a separate test in and of 
itself. As such, whether it will be appropriate to apply a calibration as sessment in order to 
determine whether a measure is even -handed in another dispute will depend on the facts of that 
dispute.  
6. New Zealand also wishes to note that the Appellate Body did not appear to rely on the 
calibration assessment in determining whet her the amended tuna measure was even -handed. It 
relied on other features of the amended tuna measure that were not dependent on an assessment 
of relative risks associated with different fishing methods in different areas of the oceans.3  The 
Appellate Bod y examined the even -handedness of the labelling conditions applied under the 
amended tuna measure in certain scenarios that would present comparably high risks to dolphins 
inside and outside the ETP purse seine fishery.  
7. Therefore, the Panel may need to consider factors other than the calibration assessment in 
order to resolve this dispute.  
III. LEGAL STATUS OF THE PREAMBLE TO THE WTO AGREEMENT  
8. The second matter on which New  Zealand wishes to comment is the legal status of the 
Preamble to the WTO Agree ment.  
                                                
1 Panel Report, US - Tuna II (Mexico) , paras 7.258, 7.574, 7.559, 7.561.  
2 Appellate Body Report, US – Tuna II (Mexico)  (Article 21.5 – Mexico), para s 7.126, 7.155, 7.160.  
3 Ibid., paras. 7. 254-7.266.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-20 - 
 
  9. At paragraph 32 of its second written submission, Mexico submits that if the means 
Members use to achieve its objectives are inconsistent with the objectives of sustainable 
development, then they are likewise inconsistent with their WTO obligation s. New  Zealand 
appreciates the importance of environmentally sustainable fisheries, not only to the Pacific but to 
all oceans in the world. That is not the issue here. What New  Zealand wishes to comment on is 
whether the Preamble in and of itself creates l egally binding obligations under the WTO Agreement 
and its annexes.  
10. In New Zealand's view the Preamble provides the context in which Members have agreed to 
be bound by the rights and obligations set out in the articles and annexes of the WTO  Agreement.  
As such, the Preamble can be used as an interpretive aid to understanding those rights and 
obligations. However, it does not impose legally binding rights or obligations on the parties in its 
own right. Article 31 of the Vienna Convention on the Law of Tr eaties supports this view. Article 31 
identifies the preamble as part of the context for the purpose of the interpretation of a treaty. 
Similarly, WTO jurisprudence confirms the Preamble to the WTO Agreement as an aid to 
interpretation. The Appellate Body in US-Shrimp  considered that the Preamble "adds colour, 
texture and shading" to the interpretation of the agreements annexed to the WTO Agreement.4  
11. New Zealand considers there is also support for this view from the structure and language of 
the WTO Ag reement Preamble. First, the term "agree" is only referenced at the end of the 
Preamble. It introduces what follows in the next part – that is, the articles of the WTO Agreement, 
which set out the rights and obligations agreed by the parties under the WTO Agreement. Hence, 
WTO Member's rights and obligations are set out after the Preamble, not as part of it. In other 
words, the Preamble can be seen as a prelude to the rights and obligations under the Agreement.  
12. Second, the language reflects a hortatory approach, rather than binding commitments. The 
Preamble uses language such as "recognising", "being desirous". As indicated, the term "agree" is 
only used to introduce the material that follows the Preamble.  
13. In New  Zealand's view, the Preamble is a val uable aid to interpreting a Member's rights and 
obligations set out in the provisions of the WTO Agreement and its annexes. However, it does not, 
in and of itself, create legally binding obligations.  
                                                
4 Appel late Body Report, US - Shrimp , para. 153.  WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
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  ANNEX C -8 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NOR WAY 
I. THE TBT AGREEMENT AR TICLE 2.1 – THE CALIBRATION ANAL YSIS  
1. The Appellate Body has articulated that the relevant inquiry  under Article 2.1 of the 
TBT Agreement when considering if the detrimental impact stems exclusively from a legitimate 
regulatory dis tinction is whether the regulatory distinction is designed and applied in an even -
handed manner, or whether it lacks even -handedness, for example because it is designed or 
applied in a manner that constitutes arbitrary or unjustifiable discrimination.1 
2. In the original proceedings in this dispute, the Appellate Body accepted the notion of 
"calibration ". The Appellate Body has clarified that this is not a separate test, but rather a part of 
the assessment when considering if a measure is "even-handed ".2 In this particular dispute, a 
calibration analysis includes an examination of whether different conditions for access to a 
"dolphin -safe" label are "calibrated " to the risks to dolphins arising from different fishing methods 
in different areas of the ocean. Contrary to what Mexico argues in its First Written Submission,3 
Norway agrees with other third parties that the calibration test should not include an assessment 
of accuracy of certification, reporting and/or record -keeping related to the labelling condit ions.4 We 
note that this was not a part of the test applied by the Appellate Body in the original proceedings 
of this dispute.  
II. THE BURDEN OF PROOF UNDER ARTICLE 2.1 OF  THE TBT AGREEMENT  
3. The burden of proof is commented on by both parties in these p roceedings in their 
submissions to the Panels. While Mexico refers to the United States having the burden of proof 
with regard to Article XX of the GATT 1994, Mexico appears silent on the burden of proof with 
respect to Article 2.1 of the TBT Agreement. Th e United States, on the other hand, repeatedly 
states that the United States has the burden of proof with respect to the matter brought by the 
United States, and that Mexico has the burden of proof with respect to the matter brought by 
Mexico. In addition,  the United States refers to the Appellate Body 's statement that "the party that 
asserts a fact is responsible for providing proof thereof ".5  
4. Norway chooses to refrain from speculating in what the United States might imply is the 
consequence of them ha ving initiated Article 21.5 proceedings in a dispute where they were 
originally the respondent with regard to the burden of proof. However, we would like to point out 
that, in WTO dispute settlement, the main principle for the allocation of burden of proof  is that 
"the burden of proof rests upon the party, whether complaining or defending, who asserts the 
affirmative of a particular claim or defence ".6 Furthermore, "if that party adduces evidence 
sufficient to raise a presumption that what is claimed is tru e, the burden then shifts to the other 
party, who will fail unless it adduces sufficient evidence to rebut the presumption ".7 The Appellate 
Body, in the first Article 21.5 proceedings of this dispute, confirmed its statement in the original 
proceedings tha t this principle also applies to Article 2.1 of the TBT Agreement . 
5. As explained by the Appellate Body:  
Under Article 2.1, this means that a complainant must show that, under the technical 
regulation at issue, the treatment accorded to imported products  is less favourable than 
                                                
1 Appellate Body Report, US – Clove Cigarettes , para. 182 and Appellate Body Report, US – COOL , para. 
271.   
2 Appellate Body Report, US – Tuna II (Article 21.5 - Mexico) , para 7.98.  
3 Mexico 's First Written Submis sion, para. 218 ff.  
4 Australia 's Third Party Submission, European Union 's Third Party Submission.  
5 United States ' Second Written Submission, para. 11 and United States ' Third Written Submission, both 
referring to Appellate Body Report, US – Tuna II (Mexi co), para. 283.  
6 Appellate Body Report, United States - Wool shirts and Blouses, p. 14.   
7 Appellate Body Report, United States - Wool shirts and Blouses, p. 14.   WT/DS 381/RW/USA/Add.1  • WT/DS381/RW 2/Add.1  
 
- C-22 - 
 
  that accorded to like domestic products or like products originating in any other country. 
[...] If, however, the respondent shows that the detrimental impact on imported products 
stems exclusively from a legitimate regulatory dist inction, it follows that the challenged 
measure is not inconsistent with Article 2.1.8 
 
6. The Appellate Body 's use of the terms «complainant» and «respondent» must be seen in its 
context. In this regard, we refer to the reiteration by the Appellate Body t hat "Article 21.5 
proceedings do not occur in isolation from the original proceedings, but that both proceedings form 
part of a continuum of events ".9 The continuum of event means, in Norway 's view, that who are 
considered to be the complainant and the res pondent respectively with regard to the burden of 
proof in relation to Article 2.1 of the TBT Agreement are the same as in the original proceedings. 
In other words, this does not shift depending on who init iated Article 21.5 proceedings.  
7. Hence, it is cl ear that in this particular dispute, it rests upon Mexico to demonstrate that the 
first step of the legal standard for establishing a violation of Artic le 2.1 is fulfilled – i.e. that  the 
technical regulation at issue modifies the conditions of competition  in the market of the regulating 
Member to the detriment of the group of imported products vis-à-vis the group of domestic or 
other foreign products.10 If such detrimental impact is demonstrated, it rests upon the United 
States to show that the detrimental  impact on imported products stems exclusively from a 
legitimate regulat ory distinction.  
 
__________  
                                                
8 Appellate Body Report, US – Tuna II (Article 21.5 – Mexico) , para. 7.32.  
9 Appellate Bod y Report, US – Tuna II (Article 21.5 – Mexico) , paras. 5.9 and 7.64, referring to previous 
Appellate Body Reports.  
10 Appellate Body Report, US – Clove Cigarettes , para. 180.