WORLD TRADE  
ORGANIZATION   
WT/DS381/AB/R 
16 May 2012 
 (12-2620) 
 Original:   English 
  
 
     
 
    
 
     
UNITED STATES – MEASURES CO NCERNING THE IMPORTATION, 
MARKETING AND SALE OF T UNA AND TUNA PRODUCTS 
 
 
 
AB-2012-2 
 
 
 
    
 
    
Report of the Appellate Body  WT/DS381/AB/R 
 Page i 
 
 
I.  Introduction .................................................................................................................. ............... 1  
II.  Arguments of the Participants and the Third Participants .......................................................... 4  
A.  Claims of Error by the United States – Appellant ......................................................... 4 
1.  Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" ....................................................................................................... 4  
2.  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  ................................................................................................. 8  
3.  Article 2.4 of the TBT Agreement  and the Notion of "International 
Standard" ........................................................................................................ 13  
B.  Arguments of Mexi co – Appellee ................................................................................. 18 
1.  Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" ..................................................................................................... 18  
2.  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  ............................................................................................... 21  
3.  Article 2.4 of the TBT Agreement  and the Notion of "International 
Standard" ........................................................................................................ 27  
C.  Claims of Error by Mexico – Other Appellant ............................................................. 30 
1.  Consistency of the Measure at Issue with Article 2.1 of the 
TBT Agreement  ............................................................................................... 30  
(a)  Interpretation and Applicati on of Article 2.1 of the 
TBT Agreement  .................................................................................. 30  
(b)  Article 11 of the DSU ........................................................................ 35  
2.  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  ............................................................................................... 37  
3.  Article 2.4 of the TBT Agreement  and the Effectiveness and 
Appropriateness of the AIDCP Standard as a Means to Fulfil the 
United States' Objectives ................................................................................ 39  
4.  The Panel's Exercise of Judicial Economy ..................................................... 41  
D.  Arguments of the United States – Appellee .................................................................. 43 
1.  Consistency of the Measure at Issue with Article 2.1 of the 
TBT Agreement  ............................................................................................... 43  
(a)  Interpretation and Applicati on of Article 2.1 of the TBT 
Agreement  .......................................................................................... 43  
(b)  Article 11 of the DSU ........................................................................ 48  
2.  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  ............................................................................................... 50  
3.  Article 2.4 of the TBT Agreement  and the Effectiveness and 
Appropriateness of the AIDCP Standard as a Means to Fulfil the 
United States' Objectives ................................................................................ 52  
4.  The Panel's Exercise of Judicial Economy ..................................................... 53  
E.  Arguments of the Third Participants ............................................................................ 55 
1.  Australia .......................................................................................................... 55  
(a)  Annex 1.1 to the TBT Agreement  and the Definition of 
"Technical Regulation" ...................................................................... 55  
(b)  The Panel's Exercise of Judicial Economy ........................................ 55  
2.  Brazil ............................................................................................................... 55  
(a)  Annex 1.1 to the TBT Agreement  and the Definition of 
"Technical Regulation" ...................................................................... 55  WT/DS381/AB/R 
Page ii  
 
(b)  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  .................................................................................. 56  
(c)  Article 2.4 of the TBT Agreement and the Notion of 
"International Standard" .................................................................... 57  
3.  Canada ............................................................................................................ 58  
(a)  Article 2.1 of the TBT Agreement  and Article III:4 of the 
GATT 1994 ........................................................................................ 58  
(b)  The Panel's Exercise of Judicial Economy ........................................ 59  
(c)  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  .................................................................................. 59  
4.  European Union .............................................................................................. 61  
(a)  Annex 1.1 to the TBT Agreement  and the Definition of 
"Technical Regulation" ...................................................................... 61  
(b)  Consistency of the Measure at Issue with Article 2.1 of the 
TBT Agreement  .................................................................................. 62  
(c)  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  .................................................................................. 63  
(d)  Article 2.4 of the TBT Agreement and the Notion of 
"International Standard" .................................................................... 64  
5.  Japan ............................................................................................................... 64  
(a)  Annex 1.1 to the TBT Agreement and the Definition of 
"Technical Regulation" ...................................................................... 64  
(b)  Article 2.4 of the TBT Agreement  and the Notion of 
"International Standard" .................................................................... 65  
6.  New Zealand ................................................................................................... 66  
(a)  Annex 1.1 to the TBT Agreement  and the Definition of 
"Technical Regulation" ...................................................................... 66  
(b)  Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  .................................................................................. 66
 
(c)  Article 2.4 of the TBT Agreement  and the Notion of 
"International Standard" .................................................................... 67  
III.  Issues Raised on Appeal ....................................................................................................... .... 67 
IV.  Background and Overview of the Measure at Issue ................................................................. 69  
V.  Legal Characterization of the Measure at Issue ........................................................................ 72  
A.  Interpretation of Annex 1. 1 to the TBT Agreement ...................................................... 74 
B.  Whether the Measure at Issue Constitutes A Technical Regulation ............................ 76 
VI.  Article 2.1 of the TBT Agreement  ............................................................................................. 80  
A.  The Panel's Findings regarding "Treatment No Less Favourable" ............................. 81 
B.  Mexico's Appeal regarding "T reatment No Less Favourable" .................................... 84 
C.  "Treatment No Less Favourable" under Article 2.1 of the TBT Agreement ................ 85 
1.  The Panel's Approach to Assessing "Treatment No Less Favourable"........... 88  
D.  Whether the US Measure Is Inconsistent with Article 2.1 of the TBT Agreement ....... 92 
1.  Whether the Measure Modifies the Conditions of Competition in the 
US Market to the Detriment of Mexican Tuna Products ................................ 93  
2.  Whether the Detrimental Impact  Reflects Discrimination .............................. 95  
(a)  Uncontested Findings by the Panel .................................................... 96  
(b)  Findings by the Panel subject to the United States' Appeal 
under Article 11 of the DSU ............................................................ 100   WT/DS381/AB/R 
 Page iii 
 
 
(c)  Whether the Measure Is Calibrated ................................................. 109  
3.  Conclusion under Article 2.1 of the TBT Agreement  .................................... 114  
E.  Mexico's Claims under Article 11 of the DSU ........................................................... 115 
VII. Article 2.2 of the TBT Agreement  ........................................................................................... 116  
A.  The Panel's Findings ................................................................................................. 116 
B.  The United States' Appeal .......................................................................................... 118 
1.  Article 2.2 of the TBT Agreement  ................................................................. 119  
2.  The Panel's Application of Article 2.2 .......................................................... 124  
C.  Other Appeal by Mexico ............................................................................................ 128 
VIII. Article 2.4 of the TBT Agreement  ........................................................................................... 131  
A.  Introduction ............................................................................................................... 131 
B.  The United States' Appeal .......................................................................................... 133 
1.  The Meaning of the Term "International Standard" ..................................... 133  
(a)  The Panel's Interpretation of the Term "International" .................... 144  
(b)  The Panel's Interpretation of the Concept of "Recognized 
Activities in Standardization" .......................................................... 146  
(c)  The Panel's Interpretation of the Term "Organization" ................... 148  
2.  Whether the Panel Erred in Finding that the AIDCP Standard Is A 
"Relevant International Standard" with in the Meaning of Article 2.4 of 
the TBT Agreement  ....................................................................................... 148  
C.  Mexico's Appeal ......................................................................................................... 149 
D.  Conclusion ................................................................................................................. 149 
IX.  Mexico's Claims under Articles I:1 and III:4 of the GATT 1994 ........................................... 150  
X.  Findings and Conclusions ...................................................................................................... . 151 
 
 
ANNEX I Notification of an Appeal by the United States, WT/DS381/10 
 ANNEX II Notification of an Other Appeal by Mexico, WT/DS381/11 WT/DS381/AB/R 
Page iv  
 
CASES CITED IN THIS REPORT 
 
Short Title Full case title and citation 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affec ting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, 1649 
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by 
Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043 
Canada – Dairy Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products , WT/DS103/R, WT/DS113/R, adopted 27 
October 1999, as modified by Appellate Body Report WT/DS103/AB/R, WT/DS113/AB/R, DSR 1999:VI, 2097 
Canada – Wheat Exports and 
Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/R, adopted 27 September 2004, 
upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, 2817 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts , WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted  
12 January 2009 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment Products , WT/DS363/AB/R, adopted 19 January 2010 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, adopted 22 February 2012 
Dominican Republic – Import 
and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 
19 May 2005, DSR 2005:XV, 7367 
EC – Approval and Marketing of Biotech Products Panel Report, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R, WT/DS292/R, WT/DS293/R, 
Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 
847 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, 3243 
EC – Bananas III Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas ("EC – Bananas III "), 
WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591 
EC – Bananas III 
(Article 21.5 – Ecuador II) / 
EC – Bananas III (Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 
11 December 2008, and Corr.1 / European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of 
the DSU by the United States , WT/DS27/AB/RW/USA and Corr.1, adopted 
22 December 2008  WT/DS381/AB/R 
 Page v 
 
 
Short Title Full case title and citation 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT /DS283/AB/R, adopted 19 May 
2005, DSR 2005:XIII, 6365 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359 
EC – Sardines Panel Report, European Communities – Trade Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by 
Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, 3451 
EC – Trademarks and 
Geographical Indications (Australia) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, 
4603 
EC and certain member States 
– Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 
1827 
Japan – Agricultural  Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, 
Chilled and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 
10 January 2001, DSR 2001:I, 5 
Mexico – Taxes on Soft Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report WT/DS308/AB/R, DSR 2006:I, 43 
Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits , 
WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012 
Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R, adopted 15 July 2011 WT/DS381/AB/R 
Page vi  
 
Short Title Full case title and citation 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012 
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R, adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS406/AB/R 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, circulated to WTO Members 
18 November 2011 [appeal in progress] 
US – FSC 
(Article 21.5 – EC) Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/RW, adopted 29 January 2002, as modified by 
Appellate Body Report WT/DS108/AB/RW, DSR 2002:I, 119 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 
20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, 
DSR 1996:I, 3 
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional 
Gasoline , WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/ R, DSR 1996:I, 29 
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R, adopted 25 October 2010 
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, DSR 
1998:VII, 2755 
US – Superfund GATT Panel Report, United States – Taxes on Petroleum and Certain 
Imported Substances , L/6175, adopted 17 June 1987, BISD 34S/136 
US – Tuna (Mexico)  GATT Panel Report, United States – Restrictions on Imports of Tuna , 
DS21/R, 3 September 1991, unadopted, BISD 39S/155 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, circulated to 
WTO Members 15 September 2011  
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of 
Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R, adopted 5 October 2011 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, 
Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by 
Appellate Body Report WT/DS267/AB/R, DSR 2005:II, 299 
US – Upland Cotton (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DSR 2008:III, 809  WT/DS381/AB/R 
 Page vii 
 
 
Short Title Full case title and citation 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, 323 
 WT/DS381/AB/R 
Page viii  
 
ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Definition 
AIDCP Agreement on the International Dolphin Conservation Program (Panel 
Exhibits US-23a and MEX-11) 
DML dolphin mortality limit 
DPCIA Dolphin Protection Consumer Information Act, United States Code , 
Title 16, Section 1385 et seq . (Panel Exhibit US-5) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
ETP Eastern Tropical Pacific Ocean 
FADs fish aggregating devices 
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Hogarth Ruling United States Court of Appeals for the Ninth Circuit, Earth Island 
Institute v. Hogarth , 494 F.3d 757 (9th Cir. 2007) (Panel Exhibit 
MEX-31) 
IATTC Inter-American Tropical Tuna Commission 
IDCPA International Dolphin Conser vation Program Act, Public Law 
No. 115-42, 111 Stat. 1122 (15 August 1997) (Panel Exhibit MEX-21) 
Implementing regulations United States Code of Federal Regulations , Title 50, Section 216.91 
("Dolphin-safe labeling standards") and Section 216.92 ("Dolphin-safe requirements for tuna harvested in the ETP by large purse seine 
vessels") (Panel Exhibit US-6) 
ISO/IEC Guide 2: 1991 International Organi zation for Standardization / International 
Electrotechnical Commission Guide 2, General Terms and Their 
Definitions Concerning Standardiza tion and Related Activities, sixth 
edition (1991) 
La Jolla Agreement La Jolla Agreement for the Reduction of Dolphin Mortality in the 
Eastern Pacific Ocean, done at La Jolla, California, 21 April 1992 
MFN most favoured nation 
NOAA National Oceanic and Atmospheric Administration 
Panel Report Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R 
SPS Agreement Agreement on Sanitary and Phytosanitary Measures 
TBT Agreement Agreement on Technical Barriers to Trade  WT/DS381/AB/R 
 Page ix 
 
 
Abbreviation Definition 
TBT Committee Decision Decision of the Comm ittee on Principles for the Development of 
International Standards, Guides a nd Recommendations with relation to 
Articles 2, 5 and Annex 3 of the Agreement, in WTO document 
G/TBT/1/Rev.9, Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, 8 September 2008, pp. 37-39;  and WTO document G/TBT/1/Rev.10, 9 June 2011, pp. 46-48 
USDOC United States Department of Commerce 
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, 1155 UNTS 331;  8 International Legal Materials 679  
WCPO Western Central Pacific Ocean 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Es tablishing the World Trade Organization  
 
  WT/DS381/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products 
 
United States, Appellant , Appellee 
Mexico, Other Appellant , Appellee 
 
Argentina, Third Participant  
Australia, Third Participant 
Brazil, Third Participant  
Bolivarian Republic of Venezuela, Third Participant  
Canada, Third Participant  
China, Third Participant  
Ecuador, Third Participant  
European Union, Third Participant  
Guatemala, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
New Zealand, Third Participant  
Separate Customs Territory of Taiwan, Penghu,  Kinmen and Matsu, Third Participant  
Thailand, Third Participant  
Turkey, Third Participant 
  AB-2012-2 
  Present:   Zhang, Presiding Member  
 Bhatia, Member 
 Graham, Member    
  
I. Introduction 
1. The United States and Mexico each appeals certain issues of law and legal interpretations 
developed in the Panel Report, United States – Measures Concerning the Importation, Marketing and 
Sale of Tuna and Tuna Products  (the "Panel Report").
1  The Panel was established to consider a 
complaint by Mexico2 regarding the consistency of certain measures imposed by the United States on 
the importation, marketing, and sale of  tuna and tuna products with the General Agreement on Tariffs 
and Trade 1994  (the "GATT 1994") and the Agreement on Technical Barriers to Trade  (the 
"TBT Agreement "). 
2. Before the Panel, Mexico challenged the United States Code , Title 16, Section 1385 (the 
"Dolphin Protection Consumer Info rmation Act" or "DPCIA"), the United States Code of Federal 
Regulations , Title 50, Section 216.91 and Section 216.92 (the "implementing regulations"), and a 
                                                      
1WT/DS381/R, 15 September 2011. 
2Request for the Establishment of a Panel by Mexico, WT/DS381/4.  WT/DS381/AB/R 
Page 2  
 
ruling by a US federal appeals court in Earth Island Institute v. Hogarth
3 (the "Hogarth ruling") as 
inconsistent with the United States ' obligations under Article 2 of the TBT Agreement  and Articles I 
and III of the GATT 1994.  The Panel reasoned that th e legal instruments identified by Mexico in its 
panel request "set out the terms of the US ' dolphin-safe' labelling scheme" and considered it 
appropriate therefore to treat them as a single measure  for purposes of its analysis of Mexico's claims 
and its findings.4  The Panel thereafter referred to the m easure at issue in this dispute as "the 
US dolphin-safe labelling provisions".5 
3. Having found that the US "dolphin-safe" la belling provisions constitute a "technical 
regulation" within the meaning of Annex 1.1 to the TBT Agreement , the Panel proceeded to examine 
the substantive claims brought by Mexico under the TBT Agreement .  With respect to Mexico's claim 
that the measure is inconsistent with Article 2.1,  the Panel found that Mexico had failed to establish 
that the measure affords tr eatment less favourable to Mexican tuna  products than to US tuna products 
and tuna products originating in other countries a nd concluded, therefore, that the measure is not 
inconsistent with the United Stat es' obligations under that provision.6  Next, the Panel found that the 
measure is more trade restrictiv e than necessary to fulfil its legitimate objectives, taking account of 
the risks non-fulfilment would create.  Therefore, th e Panel found that the measure is inconsistent 
with Article 2.2 of the TBT Agreement .7  With respect to Mexico's claim under Article 2.4 of the 
TBT Agreement , the Panel found that the Agreement on the International Dolphin Conservation 
Program8 (the "AIDCP") is a relevant international sta ndard, but that Mexico had failed to prove that 
it is an effective and appropriate means to fulfil the United States' objectives at its chosen level of 
protection.9  The Panel decided to exercise judicial ec onomy with respect to Mexico's claims under 
Articles I:1 and III:4 of the GATT 1994.10 
4. In a communication dated 31 October 2011, Mexico and the United States jointly requested 
the Dispute Settlement Body (the "DSB") to agree to  an extension of the 60-day period provided for 
in Article 16.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes  
                                                      
3United States Court of Appeals for the Ninth Circuit, Earth Island Institute v. Hogarth , 494 F.3d 757 
(9th Cir. 2007) (Panel Exhibit MEX-31). 
4Panel Report, para. 7.24.  
5Panel Report, para. 7.26.  
6Panel Report, paras. 7.374 and 8.1(a).  
7Panel Report, paras. 7.620 and 8.1(b).  
8Panel Exhibits US-23a and MEX-11. 
9Panel Report, paras. 7.740 and 8.1(c).  
10Panel Report, para. 7.748.   WT/DS381/AB/R 
 Page 3 
 
 
(the "DSU") for the adoption or appeal of the Panel Report until 20 January 2012.11  At a meeting held 
on 11 November 2011, the DSB agreed that, upon a request by Mexico or the United States, it would 
adopt the Panel Report no later than 20 January 2 012, unless the DSB decided by consensus not to do 
so, or either party to the dispute notified the DSB of its decision to appeal.12  
5. On 20 January 2012, the United States notified the DSB of its intention to appeal certain 
issues of law and certain legal inte rpretations developed by the Pane l, pursuant to Article 16 of the 
DSU, and filed a Notice of Appeal and an appe llant's submission pursuant to Rules 20 and 21, 
respectively, of the Working Procedures for Appellate Review  (the " Working Procedures ").  On the 
same day, the Appellate Body Division hearing this appeal received a request from the United States to hold the oral hearing in this appeal during th e week of 19 February 2012 on the ground that a senior 
member of the US legal team would be unable to tr avel to Geneva after that  time period for medical 
reasons relating to her pregnancy.  In the alternative, the United States proposed, by letter dated 
26 January 2012, that the oral hearing be held in  the week of 26 March 2012  to provide additional 
preparation time for the Appellate Body and the pa rticipants.  On 3 February 2012, having carefully 
considered the United States' request and th e comments received from Mexico and the third 
participants in this dispute, and having also cons idered the size and complexity of this appeal, the 
Division ruled that the oral hearing would be held on 15-16 March 2012. 
6. On 25 January 2012, Mexico notified the DSB of its intention to appeal certain issues of law 
and certain legal interpretations developed by the Panel, pursuant to Articles 16.4 and 17 of the DSU, 
and filed a Notice of Other Appeal
13 and an other appellant's submission, pursuant to Rules 23(1) 
and 23(3), respectively, of the Working Procedures .  On 7 February 2012, Mexico and the 
United States each filed an appellee's submission.14 
7. On 10 February 2012, Australia, Brazil, Canada, the European Union, Japan, and 
New Zealand each filed a third participant's submission.15  On the same day, Argentina, China, 
Ecuador, Guatemala, and Korea each notified its inte ntion to appear at the oral hearing as a third 
participant, pursuant to Rule 24(2) of the Working Procedures , and Turkey notified that it would not 
be filing a third participant's submission.  On 7 Ma rch and 12 March 2012, respectively, the Separate 
                                                      
11WT/DS381/9.  The joint request was made in view of the "current workload of the Appellate Body" 
and in order to "provide greater flexibility in scheduling any possible appeal". 
12WT/DSB/M/306.  
13WT/DS381/11 (attached as Annex II to this Report).  
14Pursuant to Rule 22 of the Working Procedures . 
15Pursuant to Rule 24(1) of the Working Procedures .  WT/DS381/AB/R 
Page 4  
 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu and Thailand each notified the Secretariat 
of its intention to appear at the oral hearing as third participants.
16 
8. On 2, 3, and 17 February 2012, the Appellate Body received unsolicited amicus curiae  briefs 
from, respectively, the Humane Society of the United States/Humane Society International and 
Washington College of Law (WCL), ASTM Internati onal (formerly the American Society for Testing 
and Materials), and Professor Robert Howse.  The pa rticipants and the third participants were given 
an opportunity to express their views on these briefs at the oral hearing.  The Division hearing this 
appeal did not find it necessary to rely on these amicus curiae  briefs in rendering its decision. 
9. The oral hearing in this appeal was held on 15-16 March 2012.  The participants and nine of 
the third participants—Argentina, Brazil, Canada , China, Ecuador, Guatemala, Japan, Korea, and 
Thailand—made oral statements.  Th e participants and third participan ts responded to questions posed 
by the Members of the Appellate Body Division hearing the appeal. 
10. On 20 March 2012, the Chair of the Appellate Body informed the Chair of the DSB that, due 
to the size of this appeal, including the complexity of the issues raised by the participants, along with 
the large caseload that the Appellate Body w as facing and the scheduling constraints resulting 
therefrom, it was expected that the Appellate Body  Report in this appeal would be circulated to 
WTO Members no later than 16 May 2012.17 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the United States – Appellant 
1. Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" 
11. The United States requests the Appellate Body to  reverse the Panel's finding that the measure 
at issue is a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement .  The 
United States asserts that such reversal would also dispose of Mexico's claims under Article 2 of the 
TBT Agreement .  Therefore, the United States further request s the Appellate Body to declare moot and 
of no legal effect the Panel's findings with respect to Article 2 of the TBT Agreement . 
                                                      
16On 7 March 2012, Thailand submitted its delegation list for the oral hearing to the Appellate Body 
Secretariat and the participants and th ird participants in this dispute.  On 12 March 2012, the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu submitted its delegation list.  For the purpose of this appeal, 
we have interpreted these actions as notifications expressing  their intention to attend the oral hearing pursuant to 
Rule 24(4) of the Working Procedures .  
17This letter was circulated as document WT/DS381/12.  WT/DS381/AB/R 
 Page 5 
 
 
12. The United States alleges that the Panel erred in finding that the measure at issue is a 
"technical regulation", because compliance with the measure is not "mandatory" within the meaning 
of Annex 1.1 to the TBT Agreement .  The United States maintains that the Panel's interpretation of the 
word "mandatory" is indistinguishable from the term "requirement".18  However, because the word 
"requirement" is used in both the definition of "technical regulation" in Annex 1.1 and in the 
definition of "standard" in Annex 1. 2, a finding that compliance with certain labelling requirements is 
"mandatory" within the meaning of Annex 1.1 must be  based on considerations other than the fact that 
a document establishes criteria for the use of a certain label.19  The United States submits that 
compliance with a labelling requirement is "mandatory " within the meaning of Annex 1.1 if there is a 
requirement to use a particular label in order to place a product for sale on the market.20  By contrast, 
compliance with a labelling requirement is not manda tory in situations wh ere producers retain the 
option of not using the label.  For the United Stat es, this interpretation "respects the definition" of 
both a labelling requirement that is a "technical re gulation" under Annex 1.1 and the definition of a 
labelling requirement that is  a "standard" under Annex 1.2.21 
13. The United States also alleges that the Panel in correctly applied prior Appellate Body reports 
interpreting the phrase "with which compliance is mandato ry".  In particular, th e Panel's interpretation 
of "mandatory" fails to give effect to the Appellate Body's statement in EC – Asbestos  that 
"mandatory compliance" is characterized by being "binding" or "compulsory".22  The United States 
takes issue with the Panel's statement that it must consider "not only whether the document lays down  
certain conditions for the use of a label, or prescribes  a certain content for a given label", but must 
also consider "whether the document at issue regulates in a binding fashion  these conditions or 
content".23  For the United States, the condition of "regulating in a binding fashion" is redundant, 
because it is not clear how a document could "lay down " or "prescribe" conditions for use of a label or 
certain content for a label if that "laying down" or "prescription"  was not "binding". 
14. The United States further alleges that the Pane l incorrectly applied the Appellate Body's 
distinction between "positive" and "negative" prescrip tions in documents.  The United States refers to 
the Appellate Body's statement in EC – Asbestos  that a document may provide, positively, that 
products must possess certain characteristics, or a document may require, negatively, that products 
                                                      
18United States' appellant's submission, heading III.B.1. 
19United States' appellant's submission, para. 30 (quoting Panel Report, para. 7.117, and referring to 
para. 7.151). 
20United States' appellant's submission, para. 32 (referring to Panel Report, para. 7.150). 
21United States' appellant's submission, para. 34. 
22United States' appellant's submission, para. 39 (quoting Appellate Body Report, EC – Asbestos , 
para. 68). 
23United States' appellant's submission, para. 39 (quoting Panel Report, para. 7.117). (emphasis added 
by the United States) WT/DS381/AB/R 
Page 6  
 
must not possess certain characteristics.  In the United States' view, this distinction is a device to help 
explain that there is more than one way to set out product characteristics in a measure.  However, it is 
not a useful tool for distinguishing a technical regulation from a standard, because both types of 
measures may set forth product characteristics.  The United States contends th at the Panel erred in 
finding that the measure at issue was a "negative" requirement because it "impose[s] a prohibition on the offering for sale in the United States of tuna pr oducts bearing a label re ferring to dolphins and not 
meeting the requirements that they set out".
24  The United States submits that standards, like technical 
regulations, may "reserve access to a label to products that comply with that standard's requirements" 
and, where "a standard is a measure of a Member, th at standard will naturally  not permit products that 
do not meet that standard to claim they do".25 
15. Furthermore, the United States argues that en forceability, as such, does not distinguish 
technical regulations from standards, and points ou t that labelling requirements may be subject to 
enforcement regardless of whether they are set fo rth in a standard or in a technical regulation.26  In 
addition, the United States submits that the Panel erred in relying on specific enforcement possibilities 
in relation to the measure at issue in order to dis tinguish it from a standard.  First, with respect to 
enforcement in the sense of restricting the use of the label to those products that meet the 
requirements for the use of the label, the United States contends that this alone does not "make 
compliance with a labelling requirement 'mandatory'" , because denying access to a label for failure to 
meet the conditions required to use the label is  inherent in the term  "labelling requirement".27  Second, 
the United States refers to two "specific enforcemen t measures" considered by the Panel, namely, a 
law against deceptive practices and a fine to be levi ed against ship captains for falsely certifying that 
dolphins were not set upon.  With respect to the law against deceptive practices, the United States 
maintains that, even "if it is accepted that a sp ecific enforcement measure can make a labeling 
requirement mandatory, it would s till have to be a measure that go es beyond a general prohibition on 
using deceptive labels".28  Moreover, a "fine to be levied agains t ship captains" does not apply to false 
use of a "dolphin-safe" label, but rather is a pena lty for false certification by captains and observers 
aboard tuna-fishing vessels.29  
16. In addition, the United States submits that the Panel's interpretation "was largely based on its 
reading of the Appellate Body report in EC – Sardines ".30  According to the United States, the Panel's 
                                                      
24United States' appellant's submission, para. 45 (quoting Panel Report, para. 7.131). (emphasis added 
by the United States omitted) 
25United States' appellant's submission, para. 45. 
26United States' appellant's submission, para. 51 (referring to Panel Report, para. 7.150). 
27United States' appellant's submission, para. 54 (quoting Panel Report, para. 7.116). 
28United States' appellant's submission, para. 58. 
29United States' appellant's submission, para. 59. 
30United States' appellant's submission, footnote 92 to para. 61.  WT/DS381/AB/R 
 Page 7 
 
 
reliance on that Appellate Body report is incorrect for two reasons.  First, in that dispute, neither the 
panel nor the Appellate Body considered whethe r compliance with the document at issue was 
mandatory.  Second, EC – Sardines  involved a requirement that products marketed as "preserved 
sardines" be prepared exclus ively from fish of the species Sardina pilchardus .  The United States 
maintains that, unlike the EC regulation at issue in  that dispute, the measure in the present case does 
not specify the product characteristics that tuna pr oducts must meet to be sold on the US market.  
Rather, tuna products can be marketed in the Unite d States as tuna products either with or without a 
"dolphin-safe" label.31 
17. Finally, the United States argues that the Pane l erred in finding that a standard becomes a 
technical regulation if it is "the only standard" available to address an issue.32  The United States 
argues that "[n]othing in Annex 1.1 provides that a technical regulation must be exclusive, and 
nothing in Annex 1.2 provides that a standard cannot be exclusive."33  The United States contends that 
the only basis the Panel suggests for its view that there must be various competing standards are in 
definitions contained in the ISO/IEC Guide 2: 1991,  General Terms and Their Definitions Concerning 
Standardization and Related Activities34 (the "ISO/IEC Guide 2: 1991").  The United States submits 
that it appears that the Panel drew upon the defin ition of the term "mandatory standard" in the 
ISO/IEC Guide 2: 1991 and argues that this defin ition is "irrelevant" because the term "mandatory 
standard" does not appear in the TBT Agreement .35  The United States further asserts that, if "a 
labelling requirement sets out multiple  similar labels to choose from, but an operator must still use 
one in order to market its product, then the opera tor still faces mandatory comp liance with respect to 
that labelling requirement".36  By contrast, "if the operator has the option of not using any of the 
labels, then it does not face a mandatory compliance obligation".37 
18. According to the United States, the Panel found th at the measure at issue is "the only standard 
available"38 because the measure prohibits labels that make deceptive claims about "dolphin-safety" 
and also prohibits deceptive labels using similar terms, such as "marine mammal" and "porpoise".39  
The United States contends that this contradicts the Panel's earlier finding that standards may be 
                                                      
31United States' appellant's submission, footnote 92 to para. 61. 
32United States' appellant's submission, para. 65 (ref erring to Panel Report, paras. 7.143 and 7.144). 
33United States' appellant's submission, para. 66. 
34International Organization for Standardization (ISO) / International Electrotechnical Commission 
(IEC) Guide 2, General Terms and Their Definitions Co ncerning Standardization and Related Activities, sixth 
edition (1991). 
35United States' appellant's submission, footnote 97 to para. 66. 
36United States' appellant's submission, para. 67. 
37United States' appellant's submission, para. 67. 
38United States' appellant's submission, para. 68 (quoting Panel Report, para. 7.144). (emphasis omitted 
by the United States) 
39United States' appellant's submission, para. 68 (quoting Panel Report, para. 7.143). WT/DS381/AB/R 
Page 8  
 
protected against "abusive or misleading use under general law".
40  According to the United States, it 
is not clear why a standard may be protected agai nst deceptive use of the label when using the term 
"dolphin", but not when using similar or overlappi ng terms, such as "marine mammal" or "porpoise".  
The United States alleges that the Panel erred in  introducing a caveat that "standards must allow 
similar labels to be used, even if the similar labe l does not meet the standard's requirements, and even 
if potentially deceptive."41  In addition, the United States maintains that the Panel may have made its 
conclusion on the basis of factual errors and refers to a Panel statement that the prohibition applies to 
claims about marine mammal and porpoise saf ety "whether misleading or otherwise".42  T h e  
United States maintains that, if this statement refl ects the belief that references to "marine mammal" 
and "porpoise" are prohibited even if the labelling re quirements are met, this is factually incorrect, 
because, pursuant to the measure at issue, if the conditions for using a "marine mammal-safe" label 
are met, such a label can be used.  In any event, submits the United States, even if the Panel had made 
correct legal and factual findings with regard to the measure's prohibition of deceptive labels, it failed 
to explain the reasons for drawing a distinction be tween a measure providing for a single standard that 
need not be used and a measure providing for multip le standards that need not be used.  For the 
United States, "[s]uch a distinction is without logic".43 
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement  
19. The United States requests the Appellate Body  to reverse the Panel's finding that the 
US "dolphin-safe" labelli ng provisions are more trade restri ctive than necessary to fulfil their 
legitimate objectives and are therefore in consistent with Article 2.2 of the TBT Agreement .  The 
United States alleges that the Panel erred in finding that the measure at issue is more trade restrictive 
than necessary to fulfil its legitimate objectives.   The United States also challenges several 
intermediate findings and conclusi ons by the Panel and alleges that  the Panel failed to make an 
objective assessment of the matter before it as required under Article 11 of the DSU. 
20. The United States alleges that the Panel erre d in finding that the coexistence of the 
US "dolphin-safe" label and the AIDCP label would provide a reasonably available, less 
trade-restrictive alternative means of achieving the obj ectives pursued by the United States at the level 
chosen by the United States.  In particular, with respect to the objective of ensuring that consumers 
are not misled or deceived about whether tuna produ cts contain tuna that was caught in a manner that 
adversely affects dolphins, the United States takes issu e with the Panel's finding that "the extent to 
which consumers would be misled as to the implica tions of the manner in which the tuna was caught 
                                                      
40United States' appellant's submission, para. 68 (quoting Panel Report, para. 7.142). 
41United States' appellant's submission, para. 68. 
42United States' appellant's submission, footnote 102 to para. 68 (quoting Panel Report, para. 7.143). 
43United States' appellant's submission, para. 69.  WT/DS381/AB/R 
 Page 9 
 
 
would not be greater if the AIDCP label were allowe d to co-exist with the US dolphin-safe provisions, 
than it currently is under the existing measures."44  With respect to the objective of 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 United States disagrees with the Panel's finding 
that "allowing compliance with the AIDCP labelling requirements to be advertised on the US market 
would discourage observed dolphin mortality resulting from setting on dolphins to the same extent as 
the existing US dolphin-safe provisions do and would involve no reduction in the level of protection 
in this respect."45 
21. The United States alleges that both of these conclu sions of the Panel are in error for several 
reasons.  First, allowing the AIDCP label to coex ist with the US "dolphin-safe" label would not 
address risks to dolphins outside the Eastern Tropical  Pacific Ocean (the "ETP"), since by its terms 
the former label only applies to tuna caught inside the ETP.  In addition, the AIDCP label allows the 
practice of setting on dolphins to catch tuna, wh ich is harmful to dolphins, and would therefore 
frustrate the dolphin protection objective.  Second, the measure at issue already requires that tuna 
bearing the US "dolphin-safe" label adhere to the AIDCP requirements if that tuna was caught in the 
ETP and, in addition to these requirements, it also requires that tuna from the ETP was not caught by 
setting on dolphins.  Therefore, the AIDCP label coul d not add any further information to consumers.  
Rather, it would give the impression that tuna caught in the ETP was not caught in a manner that adversely affects dolphins, when in reality it was ca ught by setting on dolphins.  Third, coexistence of 
the two labels would be confusing for consumers because the two labels are identical, except for the 
term "AIDCP" or "US Department of Commerce" wr itten on them.  Moreover, consumers would have 
difficulty appreciating the difference between the info rmation conveyed by each label so as to make 
an informed decision about the tuna they buy.  Fi nally, the Panel "implies" that the United States is 
required to fulfil its objective to the same level in side and outside the ETP, regardless of the costs.
46  
The United States submits that an approach that weighs costs and benefits  is consistent with 
"well-established approaches to policymaking" and with the TBT Agreement .47  For the United States, 
the measure reflects the fact that the lower likelihood that a dolphin may be killed or seriously injured 
in a fishery outside the ETP must be balanced ag ainst the additional burden imposed by conditioning 
the use of a "dolphin-safe" label on a certificati on based on an independent  observer's statement. 
22. The United States alleges that in determining that  the measure at issue only partially fulfils its 
objectives the Panel failed to make an objective assessment of the matter before it as required 
                                                      
44United States' appellant's submission, para. 120 (quoting Panel Report, para. 7.573).  
45United States' appellant's submission, para. 120 (quoting Panel Report, para. 7.612).  
46United States' appellant's submission, para. 115. 
47United States' appellant's submission, para. 115. WT/DS381/AB/R 
Page 10  
 
pursuant to Article 11 of the DSU.  The United St ates alleges that this finding is based on two 
erroneous factual findings by the Panel.  First, th e Panel's finding that "the risks to dolphins outside 
the ETP from other fishing techniques are not lower th an similar risks faced by dolphins in the ETP".  
Second, the Panel's finding that it was not persua ded that "at least some of the dolphin populations 
affected by fishing techniques other than setting on dol phins are not facing risks at least equivalent to 
those currently faced by dolphin popula tions in the ETP under AIDCP monitoring".
48  The 
United States alleges that these findings are not b ased on an objective assessment of the facts and that 
the Panel therefore acted inconsistently with Ar ticle 11 of the DSU.  The United States raises 
six allegations of error in this respect. 
23. First, the United States argues that "[t]he Pane l's conclusion that the risk to dolphins from 
other fishing techniques is not lower than the ri sk from setting on dolphins" contradicts the Panel's 
finding that "certain fishing techniques seem to po se greater risks to dolphins than others" and that 
"setting on dolphins may result in a substantial amount of dolphin mortalities and serious injuries".49  
This contradiction itself, submits the United States,  constitutes a violation of Article 11 of the DSU. 
24. Second, the United States asserts that the Panel found that "harm to dolphins resulting from 
setting on [dolphins] is equivalent to th at resulting from other fishing methods".50  T h i s  f i n d i n g  i s  
inconsistent with the evidence before the Panel sugg esting that setting on dolphins to catch tuna poses 
greater risks to dolphins than other fishing techniques.  In particular, the United States points to its arguments before the Panel that there is a regular and significant tuna-dolphin association in the ETP 
but not in other oceans, that dolphin populations in  the ETP are depleted with abundance levels at less 
than 30 per cent of the levels they were at before  the practice of setting on dolphins began, and that 
"[o]utside the ETP, dolphin populations have not been depleted on account of their exploitation to 
catch tuna and do not remain depleted  on account of any such exploitation."
51  The United States 
argues that there was no evidence before the Pa nel suggesting that the tuna-dolphin association 
outside the ETP is similar to that within the ETP, a nd alleges that the Panel failed to address evidence 
to the effect that the levels of the tuna-dolphin association in the ETP are unique, as well as evidence 
relating to the fishing methods used to catch tuna based on exploiting that association, and "what that 
means in terms of risks to dolphins".52 
                                                      
48United States' appellant's submission, para. 93 (quoting Panel Report, paras. 7.562 and 7.617).  
49United States' appellant's submission, para. 94 (quoting Panel Report, para. 7.438).  
50United States' appellant's submissi on, para. 96 (referring to United States' second written submission 
to the Panel, paras. 42-44).  
51United States' appellant's submission, para. 96 (quoting United States' second written submission to 
the Panel, para. 43).  
52United States' appellant's submission, para. 99 (ref erring to United States' first written submission to 
the Panel, paras. 52-59, and 62).   WT/DS381/AB/R 
 Page 11 
 
 
25. Third, the United States alleges that the Panel erred in finding, on the one hand, that the 
quantity and the quality of the evidence of the risk s faced by dolphin populations outside the ETP is 
less comprehensive than that of  the evidence about dolphin mortality resulting from tuna fishing 
within the ETP, and in finding, on the other hand, that "significant dolphin mortality also arises 
outside the ETP from the use of other techniques than setting on dolphins".53  In the United States' 
view, the Panel "leaps" from what  it acknowledges to be minimal ev idence that there may be some 
harm to dolphins outside the ETP to concluding that "significant dolphin mortality" occurs.54  Thus, 
the United States submits that the Panel merely assumed that dolphin mortality stemming from tuna fishing existed outside the ETP. 
26. Fourth, the United States alleges that evidence c ited by the Panel regarding harm to dolphins 
caused by tuna fishing outside the ETP does not support the Panel's finding of significant dolphin 
mortality outside the ETP.  When examining the ha rm to dolphins from tuna -fishing techniques other 
than setting on dolphins outside the ETP, the Panel erroneously relied on evidence referring to fishing 
in general, and not particularly to tuna fishing.  The United States asserts that "[s]ources that refer to 
harms to dolphins from fishing operations other than  tuna fishing operations cannot be relied upon to 
support [the Panel's] conclusion."
55  Furthermore, many of the sources on which the Panel relies as 
evincing harm to dolphins outside the ETP refer to tuna caught by driftnet fishing.  Yet, the 
US measure disallows labelling tuna products as "dol phin-safe" when the tuna is caught using this 
fishing technique on the high seas.  The possibility th at dolphins may be harmed in driftnet fishing 
does not support the conclusion that there is signi ficant harm to dolphins outside the ETP that is 
unaddressed by the measure at issue.  If the Panel' s references to non-tuna fisheries and driftnet 
fisheries are removed, the "paucity of evidence" stands in contrast to the substantial evidence 
submitted by the United States regarding the "unique characteristics of the ETP".56  Furthermore, the 
United States alleges that the Panel erred in, on the one hand, dismissing the value of evidence 
suggesting that dolphin bycatch in the Western Central Pacific Ocean ("WCPO") is significantly 
lower than in the ETP on the basis th at the authors of the relevant study stated that more detailed 
analysis would be required and, on the other hand, basing its conclusi on that harm to dolphins outside 
the ETP is significant and greater than in the ETP on studies that similarly noted the need for further 
study.57 
27. Fifth, the United States alleges that the Panel acted inconsistently with Article 11 of the DSU 
by failing to fully consider two studies submitte d by the United States as Panel Exhibits US-21 and 
                                                      
53United States' appellant's submission, para. 114 (quoting Panel Report, para. 7.613).  
54United States' appellant's submission, para. 101. 
55United States' appellant's submission, para. 103.  
56United States' appellant's submission, para. 106.  
57United States' appellant's submission, para. 106 (referring to Panel Report, paras. 7.528 and 7.529). WT/DS381/AB/R 
Page 12  
 
US-22.
58  In particular, the United States disagrees w ith the Panel's statement that other studies 
"question[] the conclusions" of the studies c ontained in Panel Exhibits US-21 and US-22.59  T h e  
United States submits that in fact they did not , and could not have done so, as the other studies 
referred to by the Panel largely pre-date the studi es contained in the above-m entioned Panel exhibits. 
28. Sixth, the United States alleges that the Panel's findings regarding depleted dolphin stocks are 
not supported by the facts.  The sources cited by th e Panel in support of its statement that depleted 
dolphin populations in the ETP are recovering in fact state that "dolphin stocks are not recovering at 
expected rates" and that "neither population is reco vering at a rate consistent  with these levels of 
depletion and reported kills".60  Moreover, the United States takes is sue with the Panel's statement that 
dolphin populations near Ghana and Togo are "severel y depleted", because there is "no indication in 
the source cited that the dolphin stocks off the coast  of Ghana and Togo are depleted because of tuna 
fishing activities".61  Furthermore, the Panel "neglected to consider" evidence adduced by the 
United States demonstrating that dolphin populations in the ETP are depleted and that the most likely reason for recovery rates below the expected rates was the continued tuna purse seine fishing in the 
ETP, even under the AIDCP guidelines.
62 
29. Finally, the United States raises a challenge  under Article 11 of the DSU relating to the 
Panel's finding that coexistence of the US "dolphi n-safe" label and the AIDCP label would be a less 
trade-restrictive alternative measure.  The United St ates alleges, first, that Mexico did not offer 
evidence indicating that consumers appreciate tuna th at meets the AIDCP definition of "dolphin-safe" 
to the same degree as tuna that meets the defin ition set forth by the US "dolphin-safe" labelling 
                                                      
58P. Wadel, G.M. Watters, T. Gerrodette, and S.B. Re illy, "Depletion of spotted and spinner dolphins in 
the eastern tropical Pacific: modeling hypotheses for their lack of recovery", Marine Ecology Progress Series, 
Vol. 343: 1-14 (published 7 August 2007) (Panel Exhibit US-21);  and T. Gerrodette and J. Forcada, "Non-recovery of two spotted and spinner do lphin populations in the eastern tropical Pacific Ocean", Marine Ecology 
Progress Series, Vol. 291: 1-21 (published 28 April 2005) (Panel Exhibit US-22). 
59United States' appellant's submission, para. 109. 
60United States' appellant's submission, para. 112 (referring to S.R. Noren and E.F. Edwards, 
"Physiological and behavioural development in Delphinid calves: Implications for calf separation and mortality 
due to tuna purse-seine nets" in Marine Mammal Science , Vol. 23, No. 1 (January 2007) (Panel Exhibit US-4), 
p. 1;  and S.B. Reilly et al., "Report of the Scien tific Research Program under the International Dolphin 
Conservation Program Act", National Oceanic and Atmospheric Administration (NOAA) Technical 
Memorandum NOAA-TM-NMFS-SWFSC-372 (March 2005) (Panel Exhibit US-19), p. 32). (emphasis added by the United States) 
61United States' appellant's submission, para. 111 (quoting Panel Report, para. 7.553).  
62United States' appellant's submission, para. 113 (referring to Panel Exhibit US-4, supra , footnote 60, 
pp. 15-29;  T. Gerrodette, G. Watters, W. Perryman, and L. Balance, "Estimates of 2006 Dolphin Abundance in 
the Eastern Tropical Pacific, with Revised Estimates from 1986-2003", NOAA Technical Memorandum NMFS-SWFSC-422 (April 2008) (Panel Exhibits US-20 and MEX-33);  Panel Exhibit US-21, supra , footnote 58;  
F. Archer, T. Gerrodette, S. Chivers, and A. Jackson,  "Annual estimates of missing calves in the pantropical 
spotted dolphin bycatch of the eastern tropical Pacific tuna purse sein e fishery" in NOAA's Fishery Bulletin , 
Vol. 102(2): 233-244 (2004) (Panel Exhibit US-27);  and F. Archer, T. Gerrodette, T. Dizon, K. Abella, and 
S. Southern, "Unobserved kill of nursing dolphin calves in a tuna purse seine fishery" in Marine Mammal 
Science , Vol. 17, No. 3 (July 2001), pp. 540-554 (Panel Exhibit US-28)).   WT/DS381/AB/R 
 Page 13 
 
 
provisions.  Second, the Panel misinterpreted the significance of evidence that US consumers prefer 
tuna that is "dolphin-safe".  This evidence suggests th at consumers prefer tuna that is "dolphin-safe" 
as defined under the measure at issue, rather than labelled "dolphin-safe" in accordance with different 
dolphin-safe conditions.  The Panel further erred in  evaluating the evidence in connection with its 
finding that consumers cannot distinguish between tuna caught in a manner that adversely affects 
dolphins and other tuna.  In partic ular, the United States points to the Panel's statement that an opinion 
poll offered by Mexico is "the only piece of evid ence presented in these proceedings to ascertain what 
US consumers in fact understand [by] the term[] 'dolphin-safe'."63  However, this poll was not the only 
piece of evidence presented with regard to US c onsumers' understanding of "d olphin-safe" labelling.  
For instance, the United States intr oduced evidence in support of the contention that, at the time the 
measure at issue was adopted, "there was strong c onsumer sentiment that setting on dolphins to catch 
tuna was unacceptable and that something should be done to ensure that consumers had a choice not 
to purchase a product that contained tuna  caught in association with dolphins."64 
3. Article 2.4 of the TBT Agreement  and the Notion of "International Standard" 
30. In the event that the Appellate Body finds the US "dolphin-safe" labelling provisions to 
constitute a "technical regulation" within the meaning of Annex 1.1 of the TBT Agreement , the 
United States seeks review by the Appellate Body of the Panel's finding that the AIDCP "dolphin-safe" definition and certification is an "international standard" within the meaning of 
Article 2.4 of that Agreement.
65  According to the United States, th e Panel's conclusion is in error and 
is based on erroneous findings on issues of law and legal interpretations of the TBT Agreement , 
including the Panel's finding that the AIDCP is an "international standardizing organization" for the 
purposes of the TBT Agreement . 
31. The United States recalls the Panel's statement that, in order to conclude that the AIDCP 
definition of "dolphin-safe" constitutes an "internati onal standard", it had to find that:  (i) the AIDCP 
definition is a standard;  (ii) the AIDCP is an inte rnational standardizing orga nization;  and (iii) the 
AIDCP standard was made available to the publ ic.  The United States asserts that the Panel's 
conclusion that the AIDCP is an "international standa rdizing organization" is in error.  In support of 
its position, the United States refers to the Pane l's finding that an international standardizing 
organization is " a legal or administrative entity  based on the membership of other bodies or 
individuals that has an established constitution and its own administration, has recognized activities in 
                                                      
63United States' appellant's submission, para. 130 (quoting Panel Report, para. 7.481). 
64United States' appellant's submission, para. 130 (referring to United States' response to Panel 
Question 40, paras. 98-101).  
65United States' appellant's submission, para. 167.  WT/DS381/AB/R 
Page 14  
 
standardization , and whose membership is open to the relevant body of every country ."
66  T h e  
United States asserts that the AIDCP meets none of th ese criteria because:  (i) it is not "international" 
within the meaning of the TBT Agreement  because its membership was not and is not open to all 
WTO Members;  (ii) it does not have "recognized activiti es in standardization";  and (iii) the parties to 
the AIDCP are parties to an international agreement, not to a body or organization.67 
32. With respect to the question of whether the AIDC P is "open to the relevant bodies of at least 
all Members" and hence "international" for the purposes of the TBT Agreement , the United States 
submits that the Panel's conclusion that the AI DCP is "international" was based on "an incorrect 
understanding of what is required fo r an organization to be 'open'".68  The United States contends that 
the AIDCP "was not open when the dolphin safe definition was developed, and the AIDCP is not open today".
69 
33. The United States points out that both Annex 1 to the TBT Agreement  and the ISO/IEC 
Guide 2: 1991 refer to the openness of a body in the present tense ("a body that is open").  On this 
basis, the United States argues that  the "organization must be open to all Members during the period 
during which the standard in question was deve loped and it must remain open thereafter."70  T h e  
United States finds support for this interpretati on in the TBT Committee's Decision on Principles for 
the Development of International Standards,  Guides and Recommendations with Relation to 
Articles 2, 5, and Annex 3 to the Agreement71 (the "TBT Committee Decision"), which defines 
openness to all Members as including "openness w ithout discrimination with respect to the 
participation at the policy development level a nd at every stage of standards development".72 
34. The United States notes that the period for signa ture of the AIDCP ended on 14 May 1999, 
but that the AIDCP resolutions in question we re not adopted until 15 June 2001.  For the 
United States, the closing of the signature period be fore the development of the definition at issue 
"precludes a finding that the AIDCP was open through signature for purposes of the definition at 
issue".73  Moreover, the United States disagrees with the Panel's finding that the fact that all States 
whose vessels fished for tuna in th e agreement area during the signature  period were eligible to join 
                                                      
66United States' appellant's submission, para. 137 (quoting Panel Report, para. 7.680). (emphasis added 
by the United States) 
67United States' appellant's submission, para. 137.  
68United States' appellant's submission, para. 138. 
69United States' appellant's submission, para. 138. 
70United States' appellant's submission, para. 139. 
71Decision of the Committee on Principles for the Development of International Standards, Guides and 
Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement, in WTO document 
G/TBT/1/Rev.9, Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, 8 September 2008, pp. 37-39. 
72United States' appellant's submission, para. 139 (quoting TBT Committee Decision, p. 38). 
73United States' appellant's submission, para. 141.  WT/DS381/AB/R 
 Page 15 
 
 
the AIDCP and that there were no prohibitions of fi shing in the agreement ar ea at the time means that 
the AIDCP was open to all Members, "since other Members who may have an interest in the AIDCP's 
activities other than fishing (such as consumer or co nservation interests) were  ineligible to become 
parties to the AIDCP."74 
35. With respect to the Panel's finding that the AIDCP remains open to all Members on a non-
discriminatory basis, since any State or regional eco nomic integration organization can be invited to 
accede to the agreement on the basis of a decision by the parties, the United States asserts that "[a] 
body in which Members may participate by invitation only is not a body that is 'open'."75  T h e  
United States stresses that "becoming a party to the AIDCP is not an option available to at least all 
Members;  it is an option availabl e only to those Members invited".76  For the United States, it follows 
therefore that "not all Members have the ability to pa rticipate in review or revision of the definitions 
at issue."77 
36. The United States elaborates on the reasons why st andardizing organizations must be open to 
all Members in order to be considered "international" for the purposes of the TBT Agreement .  
Referring to Articles 2.4 and 2.5 of the TBT Agreement , the United States submits that international 
standardizing organizations have th e "power to affect" the rights and obligations of Members, and that 
all Members must therefore be able to participate in their work.78  The United States stresses that, if 
"international standards" could be  developed by bodies that are not open to all Members, all Members 
would be required to base their technical regulatio ns on those international standards, despite the 
inability of some of them to participate in the deve lopment, review, and revision of those standards.  
Finally, the United States highlights that the TBT Agreement specifically recognizes that some 
transnational standardizing bodies are not "international bodies" for the purposes of the TBT Agreement .  Thus, Annex 1.5 specifies that a "regional body" is a body not open to at least all 
Members. 
37. With respect to the question whether the AIDCP has "recognized activities in 
standardization", the United States recalls the Pa nel's finding that recognition of standardizing 
activities can occur in two ways:  either by particip ation in a body's standardization activities, or by 
acknowledgment of the "existence, legality and validity" of the body's standards.
79  The United States 
submits that the first criterion articulated by the Pa nel is flawed, and that the second, while valid in 
principle, was not properly applied by the Panel. 
                                                      
74United States' appellant's submission, para. 142. 
75United States' appellant's submission, para. 143. 
76United States' appellant's submission, para. 143 (referring to AIDCP, Article IX). 
77United States' appellant's submission, para. 143. 
78United States' appellant's submission, para. 144. 
79United States' appellant's submission, para. 150 (referring to Panel Report, para. 7.686).  WT/DS381/AB/R 
Page 16  
 
38. According to the United States, by suggesting that  participation in standardizing activities is 
evidence of the recognition of those activities, the Pa nel "effectively read the term 'recognized' out of 
the definition".
80  The United States suggests that, if the act of creating a standard was at the same 
time an act of recognition by the creators, "there w ould be no need to specify that standardization 
activity need to be recognized", since the existence of a standard  would in itself establish that 
recognition occurred.81  The Panel's criterion would thus fail to give meaning to the element of 
"recognition" in the definition of a "standardizing body". 
39. The United States concedes that the Panel' s second criterion of how recognition of 
standardizing activity occurs, namely, "through acknow ledgment of a body's standards", is valid, but 
argues that the Panel did not apply it properly.82  In particular, the United States asserts that the Panel 
"cited no facts and provided no findings" in support of its assertion that the parties to the AIDCP had 
acknowledged the existence, legality, and valid ity of the AIDCP "dolphin-safe" definition.83 
40. In the United States' view, th e passage from a court ruling cite d by the Panel as evidence of 
the United States' recognition of the AIDCP standard  does not support the Panel's conclusion, because 
the passage does not refer to the AIDCP standard, but  instead to the definition of "dolphin-safe" 
envisaged for adoption into US law by the Panama  Declaration.  Moreover, the United States points 
out that the quoted passage discusses th is definition in the context of its rejection by the US Congress 
for the United States' labelling scheme.84  
41. The United States submits that, in any event,  recognition of a single standard would not 
amount to recognition of a body's "standardizing activities".  For the United States, the plural 
"activities" implies that "the body has been involve d in the development of more than one standard."85  
The United States asserts that "[i]f recognition of a single standard were sufficient to make a body a 
'standardizing body' then it would be impossible fo r Members to know at the time they were working 
on a standard whether that standard would be an international standard … that would trigger the 
obligations under the TBT Agreement."86  In the United States' view, the "better approach is to give 
meaning to 'standardizing activities'  as being more than a single standard, such that the body's 
standardizing activities would have been recognized  before the development of the standard at 
                                                      
80United States' appellant's submission, para. 151. 
81United States' appellant's submission, para. 151. 
82United States' appellant's submission, para. 152. 
83United States' appellant's submission, para. 153. 
84United States' appellant's submission, paras. 155-158. 
85United States' appellant's submission, para. 154. 
86United States' appellant's submission, para. 154.  WT/DS381/AB/R 
 Page 17 
 
 
issue."87  This would mean that all WTO Members would "be on notice that the standard being 
developed would trigger the TBT Agreement obligations".88 
42. Finally, the United States argues that the Panel does not explain why recognition by one 
Member would be sufficient to satisfy the require ment of "recognition" of a body's "standardizing 
activities" for purposes of the TBT Agreement .  If this were so, the United States submits, "Members 
would be unable to dispute the existence, lega lity, and validity of a standard that may be 
acknowledged by another Member."89 
43. With respect to the question of whether the AI DCP is an "organization", the United States 
recalls that the Panel relied upon the ISO/IEC Guide 2:  1991 to determine that an "organization" is a 
"legal or administrative entity" that is "based  on the membership of other bodies" and has "an 
established constitution and its own administration".90  The United States submits that the Panel 
"correctly concluded that the parties to the AIDCP do not meet this definition, but then proceeded to 
analyze an entirely different organization" to fi nd that the AIDCP may nonetheless be deemed to 
constitute an "organization".91  The United States challenges both the legal reasoning and the factual 
basis of this finding.  
44. The United States recalls the Panel's observatio n that "[t]he AIDCP is an international 
agreement concluded among States" and "does not as such have an established constitution or its own 
administration".92  The United States agrees with this statem ent and argues that this should have been 
the end of the Panel's enquiry.  The United States faul ts the Panel for relying on the characteristics of 
"a separate organization—the Inter-American Tropi cal Tuna Commission ["IATTC"]" in order to 
conclude that the parties to the AIDCP constitute an organization.93  In the United States' view, the 
alleged "institutional links" between the AIDCP and th e IATTC were insufficient to attribute to the 
parties to the AIDCP the institutional structure ma intained by a separate en tity.  The United States 
therefore argues that the Panel's examination of the IATTC was "irrelevant".94   
45. The United States additionally alleges that the Pa nel acted inconsistently with Article 11 of 
the DSU by failing to make an objective assessment of  the facts concerning the links it found to exist 
between the AIDCP and the IATTC.  The United Stat es submits that the Panel ignored the "many key 
                                                      
87United States' appellant's submission, para. 154. 
88United States' appellant's submission, para. 154. 
89United States' appellant's submission, para. 159. 
90United States' appellant's submission, para. 161 (referring to Panel Report, para. 7.680).   
91United States' appellant's submission, para. 161.   
92United States' appellant's submission, para. 162 (quoting Panel Report, para. 7.682). 
93United States' appellant's submission, para. 163. 
94United States' appellant's submission, para. 163.  WT/DS381/AB/R 
Page 18  
 
attributes that distinguish the two entities".
95  The United States emphasizes that the AIDCP is legally 
distinct from the IATTC and that the IATTC has no legal authority to make decisions regarding the 
subject matter of the AIDCP.  According to th e United States, these "uncontested facts" support a 
reversal of the Panel's finding that the "institu tional links" between the AIDCP and the IATTC are 
"sufficient to consider the attributes of the IA TTC as attributes of the parties to the AIDCP".96 
B. Arguments of Mexico – Appellee 
1. Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" 
46. Mexico requests the Appellate Body to uphold th e Panel's finding that the measure at issue 
constitutes a "technical regulation" within the meaning of Annex 1.1 of the TBT Agreement .  Mexico 
disagrees with the United States' contention that the Panel's inte rpretation of "mandatory" is 
indistinguishable from the term "requirements".  Me xico contends that the Panel carefully explained 
how its interpretation distinguished the meaning of "mandatory" from the meaning of "requirements".  
Mexico agrees, however, with the United States th at:  (i) labelling requirements may be equally 
prescribed by technical regulations and standards;  (ii) a conclusion that compliance with certain 
labelling requirements is "mandatory" within the meaning of Annex 1.1 must be based on 
considerations other than, or beyond, the mere fact  that such documents establish criteria for the use 
of a certain label;  and (iii) a labelling requirement sets out the conditions that a product is required to 
meet in order to use a label.   
47. Mexico maintains that what makes the US " dolphin-safe" labelling provisions mandatory is 
not whether a label is de jure required in order to sell tuna products  in the market.  Rather, it is the 
fact that the US "dolphin-safe" labelling provisions restrict retailers, consumers, and producers to a 
single choice for labelling tuna products as "dolphi n-safe", because it is not possible to label tuna 
products as "dolphin-safe" under any other definition.  No  other label, term, or symbol that claims or 
suggests dolphin-safe can be used unless it meets th e requirements in the US "dolphin-safe" labelling 
provisions.  Mexico contends that the prohibition of using a label based  on any standard other than the 
US standard is a measure that is separate from and in addition to the "labelling requirements".  It is 
this prohibition that transforms what would otherw ise be a standard into a technical regulation. 
48. Mexico takes issue with the United States' argume nt that only the interpretation set out in the 
separate opinion would leave space for characteriz ing voluntary labelling schemes as standards.  
Mexico contends that, in the absence of the prohi bition in the US "dolphin-safe" labelling provisions, 
                                                      
95United States' appellant's submission, para. 164. 
96United States' appellant's submission, para. 164.  WT/DS381/AB/R 
 Page 19 
 
 
both the AIDCP dolphin-safe standard and the US do lphin-safe standard could co-exist, each subject 
to its own labelling requiremen ts.  This would constitute a voluntary labelling scheme using 
"standards" (that is, documents w ith which compliance is not mandatory), as opposed to the current 
scheme of a "technical regulation" (that is, a document with which compliance is mandatory). 
49. Mexico also disagrees with the United States' cont ention that the Panel failed to give effect to 
the statement by the Appellate Body in EC – Asbestos  that mandatory compliance is characterized by 
being "binding" or "compulsory".97  Contrary to what the United States argues, the relevant statements 
by the Appellate Body in EC – Asbestos  and by the Panel in the present dispute make it clear that 
"regulation … in a binding and compulsory fashion" relates to the "product characteristics" (that is, 
the "dolphin-safe" label) and not to the sale, impo rtation, distribution, or marketing of the tuna 
product.  Mexico argues that this exposes a "fundament al flaw" in the United States' argument and in 
the separate opinion, because, under th eir interpretation, whether or not the product is permitted to be 
sold in the market is pivotal to the meaning of "mandatory".  Mexico, however, contends that what 
matters is not whether the "sale" of tuna products is regulated but whether the "product characteristics"—that is, the "dolphin-safe" label—are regulated.
98  
50. Mexico disagrees with the United States' argume nt that the Panel incorrectly applied the 
"positive and negative distinction" employed by the Appellate Body in EC – Asbestos .99  For Mexico, 
the Appellate Body's reference to "prescribing or  imposing" product characteristics relates to the 
mandatory criterion contained in the definition of "tec hnical regulation", in particular, to the fact that 
a technical regulation can prescribe or impose characte ristics in a positive or negative form.  Thus, for 
Mexico, the reference to "positive or negative form " is relevant to the mandatory criterion in the 
definition of a "technical regulation".100 
51. With respect to the United States' allegation that the Panel erred in relying on the fact that the 
measure at issue is legally enforceable and binding  under US law in its analysis of whether the 
measure constitutes a technical regulation, Mexico  contends that the United States confuses the 
enforcement of "labelling requirements" with the en forcement of the single "dolphin-safe" definition.  
                                                      
97Mexico's appellee's submission, paras. 54 and 55 (quoting United States' appellant's submission, 
paras. 38 and 39). 
98Mexico's appellee's submission, para. 58. 
99Mexico's appellee's submission, para. 60 (referring to Appellate Body Report, EC – Asbestos , 
para. 69). 
100Mexico's appellee's submission, para. 62 (referring to Appellate Body Report, EC – Asbestos , 
paras. 68 and 69). WT/DS381/AB/R 
Page 20  
 
Mexico maintains that it is the "separate and distinct prohibition" of any other label that is the focus of 
the Panel's analysis with respect to "enforceability".
101 
52. Mexico also takes issue with the United States'  arguments regarding "exclusivity".  Mexico 
contends that what the United States refers to as "exclusivity" is the single exclusive definition of 
"dolphin-safe" under US law.  Mexico disagrees wi th the United States' argument that the Panel's 
finding of "exclusivity" and its reference to "mandato ry standard" in the ISO/IE C Guide 2: 1991 is not 
based on the text of the TBT Agreement .102  Mexico maintains that the introductory clause of Annex 1 
to the TBT Agreement  allows recourse to the definitions c ontained in the ISO/IEC Guide 2: 1991.  
Accordingly, the ISO/IEC Guide 2: 1991 provides that  a "mandatory standard" is one that is made 
compulsory by, inter alia , an "exclusive reference" in a regulat ion, and an "exclusive reference (to 
standards)" is a reference that states that the only wa y to meet the relevant requirements of a technical 
regulation is to comply with the standard(s) referre d to.  Mexico contends that the Explanatory Note 
to Annex 1.2 to the TBT Agreement  provides the "relevant textual link" to support the proposition that 
a "mandatory standard" under the ISO/IEC Guide 2: 1991 is a "technical regulation" under the 
TBT Agreement .103  Mexico concludes that the "standard" set out in the US "dolphin-safe" labelling 
provisions is a "mandatory standard" within th e meaning of the ISO/IEC Guide 2: 1991 and is 
therefore, by virtue of the Explanatory Note to A nnex 1.2, a "technical regulation" within the meaning 
of the TBT Agreement . 
53. Mexico further submits that the Panel acknowledge d that the situation in this dispute closely 
resembles the disputes in EC – Sardines  and EC – Trademarks and Geographical Indications 
(Australia) .  For Mexico, these rulings indicate that the mere fact that it is legally permissible to place 
a product on the market without using the designation that is regulated by the measure at issue does not compel the conclusion that the measure is not  "mandatory" within the meaning of Annex 1.1, 
where the measure "effectively regulate[s] in a binding manner the use of the appellation".
104  Mexico 
disagrees with the separate opinion that the Appellate Body's findings in EC – Sardines  are irrelevant 
to the present case, because the situation in that di spute was different to the present case in that it 
involved a prohibition to market certain preserved sardines as "sardines", and thus these products were prohibited to enter the sardine market altogether.  Mexico submits that, in EC – Sardines , the 
product at issue could be marketed as "sardines" only if it were a certain species of fish, but it could in 
any event be sold in the EU market—although not as "sardines"—if it consisted of another species.  
                                                      
101Mexico's appellee's submission, para. 68 (referring to Panel Report, paras. 7.128, 7.131, 7.137, 
and 7.142-7.145). 
102Mexico's appellee's submission, para. 70 (referring to United States' appellant's submission, 
footnote 97 to para. 66). 
103Mexico's appellee's submission, para. 75. 
104Mexico's appellee's submission, para. 81 (referring to Panel Report, paras. 7.133-7.137).  WT/DS381/AB/R 
 Page 21 
 
 
Similarly, in this dispute, the tuna products at issue can be marketed as "dolphin-safe" only if they 
comply with the requirements of the US "dolphin-safe" labelling provisions.  If they do not comply 
with these requirements, they may be sold in  the US market, but not as "dolphin-safe".105 
54. Furthermore, Mexico maintains that the US  "dolphin-safe" labelling provisions concern 
"regulation" and not "standardization".  According to Mexico, the act of regulation has an imperative 
and binding nature, whereas standardization is not imperative or binding in nature.  Standardizing 
bodies have knowledge and expertise in  the relevant area of standardization.  Market participants 
understand the benefits of standard ization and, for that reason, apply standards.  They are not 
compelled by a regulatory measure to use specific sta ndards because, by their very nature, standards 
are optional and voluntary.  To the contrary, in  the present case, US central government bodies have 
pursued certain policy objectives by adopting "dol phin-safe" labelling requirements with which 
market participants must comply if they are to use any form of "dolphin-safe" designation.  Thus, 
Mexico concludes that the US "dolphin-safe" labelling provisions do not standardize, but rather regulate. 
55. Finally, in the event that the Appellate Body reverses the Panel's finding that the measure at 
issue is of a de jure  mandatory nature, Mexico requests the Appellate Body to affirm the Panel's 
conclusion on the basis that the measure is de facto  mandatory.  Mexico contends that the measure at 
issue is de facto mandatory, because market conditions in the United States are such that it is 
impossible to effectively market and sell tuna products without a "dolphin-safe" designation. 
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement  
56. Mexico requests the Appellate Body to uphold the Panel's finding that the US "dolphin-safe" 
labelling provisions are more trade restrictive th an necessary to fulfil thei r legitimate objectives and 
are therefore inconsistent with Article 2.2 of the TBT Agreement .  According to Mexico, the Panel's 
finding is correct because the United States' objectiv es can be fulfilled with a less trade-restrictive 
alternative measure, namely, allowing the AIDCP label and the US "dolphin-safe" label to coexist in 
the US market. 
57. Mexico maintains that the Panel correctly found that coexistence of the AIDCP label with the 
US "dolphin-safe" label would be a less trade-rest rictive alternative measure that would fulfil the 
United States' objectives.  In particular, with respect  to the objective of ensu ring that consumers are 
not misled or deceived about whether tuna products  contain tuna that was caught in a manner that 
adversely affects dolphins, Mexico contends that  the Panel was correct in finding that the 
                                                      
105Mexico's appellee's submission, paras. 84 and 85 (r eferring to Panel Report, paras. 7.138 and 7.164;  
and Appellate Body Report, EC – Sardines , para. 118). WT/DS381/AB/R 
Page 22  
 
US "dolphin-safe" label currently does not provide certa inty to consumers and that the extent to which 
consumers would be misled would not be greater if  the AIDCP label were also allowed.  Mexico 
considers that the Panel found that it was misleading not  to allow consumers to be aware that tuna was 
caught in compliance with the AIDCP, because the Panel stated that, to the extent the measure at issue 
makes no distinction between setting on dolphins in  general and setting on dolphins under AIDCP 
standards, it would not allow the US consumer to be informed of the AIDCP dolphin protection 
measures.  Mexico also points to the Panel's stat ement that it was not persuaded that allowing 
consumers to be fully informed about the efforts ma de in the context of the AIDCP for the protection 
of dolphins in the ETP would be more misleading th an allowing a "dolphin-safe" label to be applied 
to tuna caught outside the ETP in the absence of any monitoring of observed or unobserved killing of 
dolphins in those fisheries. 
58. Regarding the United States' argument that coexistence of the AIDCP label and the 
US "dolphin-safe" label on the US market would be confusing for consumers, Mexico contends that 
the Panel did not share the United States' sceptic ism that consumers coul d understand the difference 
between the two labels.  Moreover, Mexico alleges that the United States makes little effort to provide 
consumers with accurate information on what its " dolphin-safe" label means.  The relevant website
106 
only provides information on what the "dolphin-safe" label means for tuna caught in the ETP, but does not provide information about th e meaning of the label for tuna harvested in other ocean regions.  
This gives the false impression that tuna caught in those other regions have been certified as not 
causing death or serious injury to dolphins.  Mexico  further argues that the fact that in January 2003 
tuna products complying with the AIDCP standa rd could be labelled "dolphin-safe" in the 
United States demonstrates that, prior to this di spute, the United States agreed that the AIDCP 
standard met the expectations of producers, reta ilers, and consumers, and that the United States had 
the ability to alter the definition. 
59. With respect to the United States' objective of contributing to the protection of dolphins by 
ensuring that the US market is not used to encour age fishing fleets to catch tuna in a manner that 
adversely affects dolphins, Mexico takes issue with  the United States' argument that allowing the 
AIDCP label would not address the risks to dolphins out side the ETP.  Mexico contends that the Panel 
found that the measure at issue may actually be ha rmful to dolphin populations worldwide, because it 
has the effect of encouraging fleets to fish outside  the tightly regulated ETP and to fish instead in 
other ocean regions where dolphins are unprotected.  Thus, Mexico considers that the Panel found the 
                                                      
106According to Mexico, the website <www.dolphins afe.gov> is the only website with information 
published by the United States Department of Commerce (the "USDOC") for consumers on the meaning of the 
"dolphin-safe" label. (Mexico's appellee's submission, para. 166)  WT/DS381/AB/R 
 Page 23 
 
 
US dolphin protection provisions to be "counter-pro ductive" and contrary to the objective of dolphin 
protection outside the ETP.107  
60. In addition, in response to the United States' argument that allowing setting on dolphins is 
inherently harmful to dolphins and would therefore frustrate the dolphin protection objective, Mexico 
submits that the United States is suggesting that its goal is to eliminate the possibility of even a single 
dolphin mortality in all fishing operations.  Howe ver, it has been established that dolphin mortalities 
occur in relation to all the major commercial tuna -fishing methods, including fish aggregating devices 
("FAD") sets, unassociated sets, gilln et fishing, and longline fishing.108  In the ETP, the incidental 
mortalities of dolphins in relation to their populations are lower than the rate of incidental mortalities 
of marine mammals permitted by the Un ited States in its domestic fisheries. 
61. Mexico maintains that, even if the Appellate Body were to find merit in the United States' 
arguments, the US "dolphin-safe" labelling provis ions are nonetheless more trade restrictive than 
necessary within the meaning of Article 2.2 of the TBT Agreement , because they are applied in a 
manner that constitutes a means of arbitrary and un justifiable discrimination and thus constitute an 
unnecessary obstacle to international trade contrary to the sixth recital of the preamble of the 
TBT Agreement .  Mexico contends that Article 2.2 must be read together with the sixth recital, which 
requires Members not to apply technical regulations  in a manner that would constitute a means of 
arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a 
disguised restriction on international trade.  No ting similarity between the present dispute and the 
factual situation in US – Shrimp , Mexico submits that the US "dolphin-safe" labelling provisions have 
created a "rigid and unbending standard".109  The purpose of the measure at issue is to "unilaterally 
and extraterritorially impose U.S. fishing me thod requirements" as a condition for access to the 
principal distribution channels in the US tuna pro ducts market, and in that manner to pressure foreign 
tuna fleets to change their fishing methods.110 
62. Finally, in response to the United States' contention that the Panel implied that the 
United States was required to fulfil its objective to the same extent inside and outside the ETP, 
regardless of the cost, Mexico asserts that the Pa nel was correct in rejecting the United States' 
argument that the measure at issue is "calibrated" to  risks to dolphins in different ocean regions.  The 
Panel was correct in taking into account the absence of any requirement to certify that no dolphin has 
been killed or seriously injured in situations where dolphins may in fact have been killed or seriously 
                                                      
107Mexico's appellee's submission, para. 170. 
108Mexico's appellee's submission, para. 175.  
109Mexico's appellee's submission, para. 183 (quoting Appellate Body Report, US – Shrimp , para. 163). 
110Mexico's appellee's submission, paras. 178-186.  WT/DS381/AB/R 
Page 24  
 
injured.
111  Mexico further submits that the United States Department of Commerce (the "USDOC") 
has never conducted an inquiry into whether it should consider designating any ocean region as 
having "regular and significant association between  marine mammals and tuna" or as having "a 
regular and significant mortality or serious injury to  dolphins", and therefore never evaluated the risk 
to dolphins from tuna fish ing in other ocean regions.112  In addition, the United States did not submit 
to the Panel any information regarding cost for th e tuna industry of carryi ng independent observers.  
Mexico contends that, in the absence of such evid ence, it would not have been appropriate for the 
Panel to rely on such factors as a justification for the failure of the US measure to fulfil its objectives 
outside the ETP. 
63. Furthermore, Mexico requests the Appellate Body to reject the United States' allegations that 
the Panel failed to make an objective assessment of the facts and therefore acted inconsistently with 
Article 11 of the DSU. 
64. First, Mexico disagrees with the United States  that the Panel made contradictory findings 
regarding the relative risks to dolphins arising from di fferent fishing techniques.  Mexico alleges that 
the United States relies on a "selective quotation" th at omits important information when it quoted the 
Panel Report,  In particular, Mexico asserts that the United States omitted the underlined part of the 
sentence:  "[i]t is undisputed, in particular, th at the fishing method known as setting on dolphins may 
result in a substantial amount of dolphin mortalities a nd serious injuries, especia lly when used without 
applying certain fishing gear and procedures designed to reduce dolphin bycatch."113  Mexico asserts 
that it submitted substantial evidence demonstra ting that the fishing methods permitted under the 
AIDCP have been successful in limiting dolphin mo rtalities to levels considered acceptable in 
fisheries subject to US territorial jurisdiction.  Me xico agrees that high risks to dolphins exist in other 
ocean regions where nets are being set on dolphins.114 
65. Second, in response to the United States' challenge  of the Panel's findings relating to the harm 
to dolphins resulting from setting on dolphins to catch  tuna as compared to the harm to dolphins 
resulting from other fishing methods, Mexico disagrees with the United States that the Panel failed to 
address evidence suggesting that the levels of th e tuna-dolphin association in the ETP are unique, and 
the implications of that for risks to dolphins.  Me xico maintains that the Pa nel extensively analyzed 
                                                      
111Mexico's appellee's submission, paras. 152 and 153  (quoting Panel Report, paras. 7.549, 7.550, 
and 7.561). 
112Mexico's appellee's submission, para. 156 (referring to Panel Report, para. 2.23, in turn referring to 
United States' first written submission to the Panel, para s. 38 and 39;  and United States' responses to Panel 
Questions 12 and 85). 
113Mexico's appellee's submission, paras. 117 and 118 (quoting Panel Report, para. 7.438, and referring 
to United States' appellant's submission, para. 94). (underlining added by Mexico) 
114Mexico's appellee's submission, para. 118.   WT/DS381/AB/R 
 Page 25 
 
 
the United States' contention that certain environmen tal conditions in the ETP (such as the intensity of 
tuna-dolphin association) are unique, and refers to the Panel's statement that, even assuming this were 
the case, "the evidence submitted to the Panel suggests that the risks faced by dolphin populations in 
the ETP are not."115 
66. Third, Mexico submits that the Panel objec tively assessed the evidence concerning relative 
harm to dolphins inside and outside the ETP.  Mexi co submits that the Panel did not say that the 
evidence regarding risks to dolphins arising from t una fishing outside the ETP was "minimal", as the 
United States asserts.116  Mexico argues that the United States omits a number of the Panel's 
references to relevant evidence and takes statements  by the Panel out of context.  According to 
Mexico, while the United States alleges that the Pa nel failed to address evidence it had put forward, 
the United States acknowledges that the Panel cite d other evidence demonstrating that there are 
"multiple examples of numerous dolphins be ing killed annually in other fisheries."117  For Mexico, the 
United States itself thus acknowledges that the Pane l engaged in weighing that evidence.  In any 
event, Mexico contends that panels have a margin  of discretion in the assessment of the facts and not 
according the weight that one of the parties belie ves should be accorded to the evidence does not in 
itself constitute legal error.  
67. Fourth, Mexico disagrees with the United States th at the evidence relating to risks to dolphins 
outside the ETP did not support the Panel's conclusi on.  Mexico contends that the United States 
ignores much of the evidence before the Panel or  argues that the Panel should have construed 
evidence differently.118  In respect of the United States' argu ment that the Panel erred in relying on 
evidence relating to harm to dolphins from driftnet  fishing because tuna caught using this fishing 
method in the high seas is not eligible for the US "d olphin-safe" label, Mexico submits that most of 
the evidence cited by the Panel does not involve driftn et fishing on the high seas, but instead refers to 
the use of driftnets in coastal waters.  Mexico em phasizes that tuna caught in this manner is eligible 
for the US "dolphin-safe" label under the measure at issue.  Moreover, restrictions concerning tuna 
caught with driftnets on the high seas do not appl y automatically.  To "trigger the enforcement 
                                                      
115Mexico's appellee's submission, para. 133 (quoting Panel Report, para. 7.552 (original emphasis)).  
Mexico also notes that, in making this finding, the Panel referred to several different pages of N.M. Young and 
S. Iudicello, "Worldwide Bycatch Of Cetaceans:  An evaluation of the most  significant threats to cetaceans, the 
affected species and the geographic ar eas of high risk, and the recommended actions from various independent 
institutions", NOAA Technical Memorandum NMFS- OPR-36 (July 2007) (Panel Exhibit MEX-05). 
116Mexico's appellee's submission, para. 120 (quoting United States' appellant's submission, para. 100). 
117Mexico's appellee's submission, para. 119 (quoting United States' appellant's submission, para. 99, in 
turn quoting Panel Report, para. 7.552).  
118Mexico's appellee's submission, paras. 126, 127, and 128 (referring to National Research Council, 
"Dolphins and the Tuna Industry" (National Academy Press, Washington, D.C., 1992) (Panel Exhibit MEX-02);  
and Panel Exhibit MEX-05, supra , footnote 115).  WT/DS381/AB/R 
Page 26  
 
mechanism", a country must be designated by th e USDOC as a nation fishing with large scale 
driftnets.
119  The only country to have been so designated is Italy.120 
68. Fifth, Mexico disagrees with the United States that the Panel failed to consider fully two 
studies submitted by the United States as Panel E xhibits US-21 and US-22 regarding the unobserved 
effects on dolphins from being chased and encircled in the ETP.  Mexico contends that the validity 
and reliability of these two studies was a major topic of the panel proceedings and that these studies 
were based on estimates of population and popula tion growth that the USDOC own 2008 abundance 
estimate considered to be incorrect.121  The 2008 study concluded that each of the depleted dolphin 
stocks (coastal and northeastern offshore spotted a nd eastern spinner dolphins) were estimated to be 
growing at rates near the 4-8% maximum possible for dolphins.122  Furthermore, the AIDCP's 
Scientific Advisory Board produced a report recommending increases in the dolphin mortality limits 
enforced by the AIDCP based on the fact that the populations of these stocks are significantly larger 
than previously believed.123 
69. Sixth, Mexico disagrees with the United States that the Panel's findings regarding depleted 
dolphin stocks are not supported by facts.  Mexi co maintains that the Panel fully acknowledged the 
United States' argument that dolphin po pulations are not increasing fast enough.124  With respect to 
the United States' allegation that the Panel "neglect ed to consider" evidence that two dolphin stock 
populations are not growing at the expected rate s because of unobserved harm resulting from setting 
on dolphins, Mexico contends that the Panel describ ed and analyzed the studies and evidence referred 
to by the United States.125  Therefore, in Mexico's view, the Un ited States' claim of "neglect" is in 
reality a complaint that the Panel did not agree with the United States.126 
70. Finally, Mexico rejects the United States' clai m that the Panel acted inconsistently with 
Article 11 of the DSU in reaching its finding that th e coexistence of the US "dolphin-safe" label and 
the AIDCP label would be a less trade-restrictive alternative measure.  Mexi co maintains that the 
                                                      
119Mexico's appellee's submission, para. 123 (referring to United States Code , Title 50, 
Section 216.24(f)(7) (Panel Exhibit US-23b)). 
120Mexico's appellee's submission, para. 123 (referring to Mexico's comments on United States' 
responses to Panel Questions after second Panel meeting, para. 27).  
121Mexico's appellee's submission, paras. 143 and 144 (referring to United States' appellant's 
submission, para. 108;  and Mexico's second written submission to the Panel, paras. 43-60).  
122Mexico's appellee's submission, paras. 139 and 140 (referring to Panel Exhibits US-20 and MEX-33, 
supra , footnote 62, p. 12;  and Mexico's second written submission to the Panel, paras. 50-61). 
123Mexico's appellee's submission, para. 141 (referring to International Dolphin Conservation Program 
(IDCP) Scientific Advisory Board, "Updated Estimates Of Nmin And Stock Mortality Limits", Document SAB-
07-05 (30 October 2009) (Panel Exhibit MEX-91)). 
124Mexico's appellee's submission, para. 137 (referring to Panel Report, para. 7.557). 
125Mexico's appellee's submission, para. 138 (referring to Panel Report, paras. 7.495-7.499). 
126Mexico's appellee's submission, para. 138 (referring to United States' appellant's submission, 
para. 113).  WT/DS381/AB/R 
 Page 27 
 
 
Panel did not disregard, as alleged by the United St ates, "ample evidence" that retailers will sell and 
consumers will purchase tuna products that are "dolphi n-safe" as defined under the measure at issue, 
rather than labelled "dolphin-safe" in accordan ce with different conditions, such as the AIDCP.127  
Mexico contends that the Panel considered in its analysis of Article 2.1, evidence suggesting that, 
contrary to Mexico's position, while the AIDCP label would not be acceptable to retailers as an alternative "dolphin-safe" certification, US retailers would be prepared to o ffer Mexican tuna products 
for sale if they meet the conditions fo r labelling under the existing US measure.
128  For Mexico, this 
demonstrates that the Panel considered relevant  evidence and did not fail to make an objective 
assessment of the matter. 
71. Moreover, Mexico submits that the Panel did not  exceed its margin of discretion in assessing 
evidence when finding that a poll was the only piece of evidence presented in respect of the 
US consumers' understanding of "dolphin-safe" labelling.  Additional evidence adduced by the 
United States refers to consumers'  perception from more than 20 years ago and is thus irrelevant to 
determine consumer perceptions today.  For Mexico , the Panel properly exercised its discretion as the 
trier of facts in deciding which evidence to utilize in making its findings.129 
3. Article 2.4 of the TBT Agreement  and the Notion of "International Standard" 
72. Mexico requests the Appellate Body to reject  the United States' appeal and to uphold the 
Panel's findings that the AIDCP standard is an "international standard" within the meaning of 
Article 2.4 of the TBT Agreement .130 
73. At the outset, Mexico stresses that the United States is a founding member of the AIDCP and 
"fully participated in the creation and establishment of the AIDCP's dolphin-safe standard".131  
Mexico highlights that "the very purpose of that stan dard was to facilitate access of tuna products into 
the U.S. market" and that the United States enacted  the International Dolphin Conservation Program 
Act132 (the "IDCPA") in 1997 in order to, inter alia , bring the United States' definition of 
"dolphin-safe" into conformity with the AIDCP standard.133 
74. Mexico rejects the United States' argument that  the AIDCP is not "open" to the relevant 
bodies of at least all WTO Members and therefore not "international" for the purposes of the 
                                                      
127Mexico's appellee's submission, para. 192. 
128Mexico's appellee's submission, para. 193 (referring to Panel Exhibit MEX-58 (BCI)). 
129Mexico's appellee's submission, paras. 195 and 196.  
130Mexico's appellee's submission, para. 226.  
131Mexico's appellee's submission, para. 198.   
132International Dolphin Conservation Program Act, Public Law No. 115-42, 111 Stat. 1122 (15 August 
1997) (Panel Exhibit MEX-21). 
133Mexico's appellee's submission, para. 198.   WT/DS381/AB/R 
Page 28  
 
TBT Agreement .  Mexico submits that the Panel correctly concluded otherwise, on the basis that the 
AIDCP provides for accession by new States or regiona l economic integration organizations, that it 
was open for signature from 1998 to 1999, and th at it remains open to accession by any States or 
regional economic integration organi zations that are invited to acced e to the AIDCP on the basis of a 
decision by the parties.
134 
75. Mexico disagrees with the United States' argu ment that the AIDCP was not open when the 
AIDCP "dolphin-safe" definition was developed.  Me xico submits that the definition embodied in the 
resolutions of the AIDCP was based on "the defin ition initially developed in the Panama Declaration 
in 1995", and that the parties to the AIDCP were "w ell aware" of this definition when the AIDCP was 
enacted.135  Mexico further claims that the AIDCP "dolphin-safe" definition was elaborated during the 
period for signature of the AIDCP.  Hence, Mexico submits, the AIDCP was open when the AIDCP 
definition of "dolphin-safe" was developed.136 
76. Mexico argues that the requirement that new part ies need to be invited in order to join the 
AIDCP does not mean that the AIDCP is not ope n to the relevant bodies of at least all WTO 
Members.  Mexico contends that, considering th e particular nature of the AIDCP regime that 
regulates tuna fishing in the ETP, it is understandable that any State or regional organization that has 
interest in the AIDCP regulation of tuna fishing techniques can accede today "by a simple invitation 
of the rest of members".137  Mexico suggests that being in vited to accede to the AIDCP is a 
"formality".  Mexico further notes that no additio nal countries or regiona l economic integration 
organizations have expressed an interest in joinin g the AIDCP and that "it is common that during the 
AIDCP meetings, Parties to the Agreement invite  observer countries that regularly attend such 
meetings with the intention in the future to become Parties."138 
77. Mexico stresses that, unlike the Agreement on Sanitary and Phytosanitary Measures (the 
"SPS Agreement "), which identifies three specific intern ational standardizing organizations, the 
TBT Agreement  "retains flexibility for determining what are relevant and applicable international 
standards on a case by case basis".139 
78. Mexico supports the Panel's conclusion th at the AIDCP has "recognized activities in 
standardization".  Mexico submits that it h as demonstrated the recognition of the AIDCP's 
standardizing activities by the United States by s howing that the United States "was a founding and 
                                                      
134Mexico's appellee's submission, para. 206.   
135Mexico's appellee's submission, para. 207.  
136Mexico's appellee's submission, para. 207.  
137Mexico's appellee's submission, para. 208.  
138Mexico's appellee's submission, para. 209. 
139Mexico's appellee's submission, para. 211.   WT/DS381/AB/R 
 Page 29 
 
 
fully participating member of the AIDCP".140  Mexico agrees with the Panel that participation by 
countries in the development of a standard "is sufficient evidence of their recognition".141  Mexico 
further submits that the elaboration of the "dolphin -safe" definition was one of the main reasons for 
many members to participate in the AIDCP.  Mexico suggests that this is a "clear signal of acknowledgement".
142 
79. In Mexico's view, the fact that the Unite d States has disallowed the use of the AIDCP 
"dolphin-safe" label "does not mean that the AIDCP does not have 'standardizing activities' or that the 
AIDCP dolphin-safe label is not currently being used."143  Moreover, Mexico submits that the 
AIDCP's main role is to establish rules and proce dures related to the "interaction between fishing and 
dolphins" and that, with regard to the protection of  dolphins in the ETP, the AIDCP is the exclusive 
organization with recognized activities in standardization.144  Mexico points out that the AIDCP's 
members have issued "a number of other standa rds", including "Procedures for Maintaining the 
AIDCP List of Qualified Captains", "Technical Gu idelines to Prevent High Mortality During Sets on 
Large Dolphin Herds", and "Guidelines for Requi red Raft for the Observation and Rescue of 
Dolphins".145 
80. Mexico rejects the United States' argument that the parties to the AIDCP are merely parties to 
an international agreement, not to a body or an or ganization.  Mexico furthe r submits that the Panel 
correctly identified the "institutional link" between the AIDPC and the IATTC.146  M e x i c o  
emphasizes that this institutional link is "well established in the AIDCP itself".147  In this respect, 
Mexico notes that Article XIV of the AIDCP states th at the parties to the AIDCP shall "request the 
IATTC to provide Secretariat support and to perform  such other functions as are set forth in this 
Agreement or are agreed upon pursuant to this Agreement".148  Mexico also points to other provisions 
of the AIDCP that demonstrate the "integral role" that the IATTC has in coordinating the 
implementation of the AIDCP.149 
                                                      
140Mexico's appellee's submission, para. 213.  
141Mexico's appellee's submission, para. 213.  
142Mexico's appellee's submission, para. 216.  
143Mexico's appellee's submission, para. 216.  
144Mexico's appellee's submission, para. 218.  
145Mexico's appellee's submission, para. 218 and footnote 235 thereto (referring to AIDCP, "Procedures 
for Maintaining the AIDCP List of Qualified Captains" (amended 24 June 2004);  "Technical Guidelines to 
Prevent High Mortality During Sets on Large Dolphin Herds" done at 7th meeting with the parties, Manzanilla (Mexico), 24 June 2002;  and "Guidelines for Required Raft for the Observation and Rescue of Dolphins" done 
at 22nd meeting of the parties, La Jolla (USA), 30 October 2009 (Panel Exhibit MEX-83)).   
146Mexico's appellee's submission, para. 221 (quoting Panel Report, para. 7.684).  
147Mexico's appellee's submission, para. 222. 
148Mexico's appellee's submission, para. 222 (quoting AIDCP). 
149Mexico's appellee's submission, para. 223.   WT/DS381/AB/R 
Page 30  
 
81. Mexico requests the Appellate Body to reject th e United States' claims under Article 11 of the 
DSU, and in particular the United States' argument that the parties to the AIDCP are not the same as 
the members of the IATTC.  Mexico points out that both the AIDCP and the IATTC remain open to 
accession by any State.  Mexico concludes that the Panel did not fail to make an objective assessment of the facts before it as required by Article 11 of the DSU. 
C. Claims of Error by Mexico – Other Appellant 
1. Consistency of the Measure at Issue with Article 2.1 of the TBT Agreement  
82. Mexico alleges various errors in the Panel's analysis and  requests the Appellate Body to 
reverse the Panel's finding that the US "dolphin-saf e" labelling provisions are not inconsistent with 
Article 2.1 of the TBT Agreement , and to find instead that the measure at issue is inconsistent with the 
United States' obligations under Article 2.1.  In par ticular, Mexico alleges that  the Panel erred in its 
interpretation and application of the phrase "tre atment no less favourable" in Article 2.1.  
Additionally, Mexico challenges several intermediate  findings and conclusions by the Panel as legally 
erroneous and contrary to the Pa nel's duty to make an objective assessment of the matter before it as 
required under Article 11 of the DSU. 
(a) Interpretation and Applicati on of Article 2.1 of the TBT Agreement  
83. Mexico faults the Panel for applying what Mexi co refers to as a "'denial of access to an 
advantage' test" for determining whether a measure  provides "less favourable treatment" within the 
meaning of Article 2.1.150  Mexico agrees that "the denial of an advantage could lead to the denial of 
competitive opportunities and therefore to a viola tion of the non-discrimination obligations in 
Article 2.1."151  Mexico suggests, however, that the Pane l applied a standard under which a measure 
could be found to be inconsis tent with Article 2.1 of the TBT Agreement  only to the extent that it 
imposes an "absolute prohibition or bar" on imports.152 
84. Regarding the Panel's interpretation of Article 2.1 of the TBT Agreement , Mexico 
acknowledges that the Panel correctly considered the ordinary meaning of the phrase "treatment no 
less favourable".  Yet, in Mexico's view, the Panel fa iled to "fully consider the context of Article 2.1 
and the object and purpose of the TBT Agreement ".153  Referring in particular to past jurisprudence 
interpreting the national treatment and most favoured  nation ("MFN") provisions in the context of the 
                                                      
150Mexico's other appellant's submission, para. 74 (referring to Panel Report, paras. 7.284, 7.291, 
and 7.301).  
151Mexico's other appellant's submission, para. 75.  
152Mexico's other appellant's submission, para. 75.  
153Mexico's other appellant's submission, para. 86.   WT/DS381/AB/R 
 Page 31 
 
 
GATT 1994, Mexico argues that the "applicable test" under Article 2.1 of the TBT Agreement  is to 
assess "whether a measure modifies the conditions of  competition in the relevant market to the 
detriment of the imported products in question".154  However, Mexico also highlights that the 
"immediate context" of Article 2.1 of the TBT Agreement  is different from the non-discrimination 
obligations in the GATT 1994 and the GATS, in that the TBT Agreement  does not contain a 
"substantive equivalent" to the general excepti on provisions found in Article XX of the GATT 1994  
and Article XIV of the GATS.155  Mexico submits that, even though the TBT Agreement  does not 
provide for general exceptions, the sixth recital of  its preamble includes language suggesting that 
"certain technical regulations which would violate the above-noted interpreta tion of Article 2.1 should 
not be prohibited if they fall within the specified criteria" of the recital.156  While Mexico 
acknowledges that language in the preamble of the TBT Agreement  is "not substantive", it contends 
that the substantive provisions of the TBT Agreement  must be "interpreted in a manner that is 
consistent with this important context".157  In Mexico's view, this implies that technical regulations 
that meet all the criteria of the recital should not be prohibited by Article 2.1, even if they modify the 
conditions of competition in the relevant market to the detriment of the imported product in question.  
Mexico emphasizes that this interpretation does no t transform the recital into an exception analogous 
to general exceptions, but "modifies the meaning of th e substantive obligation in Article 2.1 so that 
the discrimination that is prohibited in that Article  does not extend to measures meeting the criteria of 
the preamble".158  According to Mexico, a measure that m odifies the conditions of competition in the 
relevant market to the detriment of an imported pro duct will thus not be prohibited by Article 2.1 if:  
(i) the measure is necessary to pursue one of the objectives mentioned in the sixth recital;  (ii) the 
measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable 
discrimination between countries where the same cond itions prevail;  (iii) the measure is not applied 
in a manner that would constitute a disguised restric tion on international trade;  and (iv) the measure 
is otherwise in accordance with the provisions of the TBT Agreement .159 
85. Referring to the Appellate Body's jurisprude nce under Article XX of the GATT 1994, Mexico 
argues that the US "dolphin-safe" labelling provi sions are not necessary for the protection of animal 
life or health or for the prevention of deceptive pr actices.  Mexico argues, in particular, that the 
"exclusive single definition of dolphin-safe" estab lished by the US measure "does not contribute to 
the realization of these two objectives through consumer choice".160  First, according to Mexico, there 
                                                      
154Mexico's other appellant's submission, para. 99. 
155Mexico's other appellant's submission, para. 101.  
156Mexico's other appellant's submission, para. 103.  
157Mexico's other appellant's submission, para. 104.  
158Mexico's other appellant's submission, para. 109.  
159Mexico's other appellant's submission, para. 111.  
160Mexico's other appellant's submission, para. 117.   WT/DS381/AB/R 
Page 32  
 
is "no evidence of 'deceptive practic es'" in connection with the AIDC P label that would need to be 
prevented.
161  Mexico also recalls, in this regard, the Pa nel's finding that "allowing the AIDCP label to 
be used in the U.S. market 'may have the poten tial to reduce the possibilities of consumer deception 
more than the current US dolphin-safe label'."162  Second, with respect to the objective of protecting 
dolphins through consumer choice, Mexico argues that prohibiting the AIDCP label restricts how 
consumers can express their preferences for "dolphi n-safe" tuna products and "limits to a single 
definition an objective that, in reality, is much more complex".163  Mexico concludes that the measure 
at issue is therefore "unnecessary" with in the meaning of the sixth recital.164 
86. With respect to the requirement that a measur e not be applied in a manner that constitutes a 
means of arbitrary or unjustifiable discrimination,  Mexico argues that the current dispute presents a 
factual situation that is "closely similar" to the one in US – Shrimp , because, in that dispute, the 
United States was seeking to "coerce" other countries into adopting the United States' approach to the 
conservation of turtles.165  Referring to the Appellate Body's findings in that case, Mexico submits 
that the measure at issue in this dispute "unilate rally and extraterritorially impose[s] U.S. fishing 
method requirements as a condition for access to the pr incipal distribution channels in the U.S. tuna 
products market".166  Mexico further argues that, in this dispute, the United States has established a 
"rigid and unbending standard" that does not allow th e extensive measures taken by Mexico to protect 
dolphins and other changing cond itions to be taken into account.167  Mexico emphasizes that, even if 
the United States were to find now, or in the futu re, that the dolphin stocks that it deems to be 
depleted had fully recovered, the US measure would not allow the definition of "dolphin-safe" to be 
amended to accommodate the AIDCP standard.  Me xico also argues that the US "dolphin-safe" 
labelling provisions are discriminatory because tuna products produced from tuna harvested outside 
the ETP can be labelled as "dolphin-safe" "under re laxed compliance standards even though there are 
no protections for dolphins outside the ETP".168  By contrast, tuna products from Mexican 
producers—who have taken "extensive and demonstrably highly successful measures to protect 
dolphins"—are prohibited from using the label.169  Furthermore, Mexico refers to the 
Appellate Body's statement in US – Shrimp that the United States' failure to engage the appellees in 
                                                      
161Mexico's other appellant's submission, para. 118. 
162Mexico's other appellant's submission, para. 11 8 (quoting Panel Report, para. 7.576). (emphasis 
added by Mexico) 
163Mexico's other appellant's submission, para. 119.  
164Mexico's other appellant's submission, para. 120.   
165Mexico's other appellant's submission, para. 123.  
166Mexico's other appellant's submission, para. 124 (referring to Appellate Body Report, US – Shrimp , 
para. 161). 
167Mexico's other appellant's submission, para. 127 (referring to Appellate Body Report, US – Shrimp , 
para. 165). 
168Mexico's other appellant's submission, para. 129.  
169Mexico's other appellant's submission, para. 129.    WT/DS381/AB/R 
 Page 33 
 
 
that case in "serious, across the board negotiations  with the objective of concluding bilateral or 
multilateral agreements for the protection and cons ervation of sea turtles" "bears heavily in any 
appraisal of justifiable or unjustifiable discrimination".170  Mexico submits that, in the present case, 
the situation is even more aggravated because th e United States entered into the AIDCP, which has 
been extremely successful in protecting dolphins, and then disregarded the standard established by the 
AIDCP in maintaining its own unilateral measure. 
87. With respect to the requirement that a measu re not be applied in a manner that would 
constitute a disguised restriction on international trad e, Mexico submits that a measure that constitutes 
arbitrary and unjustifiable discrimination also represent s a disguised restriction on international trade.  
Moreover, Mexico argues that the US measure, by restricting the information available to 
US consumers, interferes with the free operation of  consumer choice.  This  converts "an otherwise 
valid consumer choice measure into a disgui sed restriction on international trade".171 
88. With respect to the last phrase of the sixth rec ital, namely, that the measure be otherwise in 
accordance with the provisions of the TBT Agreement , Mexico argues that, because the Panel found 
that the US "dolphin-safe" labelling provision s are inconsistent with Article 2.2 of the 
TBT Agreement , there is no basis on the facts of this di spute "to narrow the interpretation of the 
non-discrimination obligations" in Article 2. 1 to take into account the sixth recital.172  According to 
Mexico, the "traditional interpretation" of "no less fa vourable treatment" therefore applies.  Hence, if 
the US "dolphin-safe" labelling provisions are found  to "modify the conditions of competition in the 
relevant market to the detriment of Mexican tuna pr oducts, they are inconsistent with Article 2.1 and 
are prohibited".173 
89. In this respect, Mexico recalls the Panel's findi ng that access to the "dolphin-safe" label is an 
advantage on the US market and that the measure at is sue controls access to the label.  Mexico further 
submits that the evidence before the Panel shows th at most Mexican tuna products do not have access 
to the "dolphin-safe" label, while all like US tuna products and most tuna prod ucts of other countries 
have access to that label.  In addition, Mexico not es the Panel's finding that allowing the AIDCP label 
in the US market would provide greater competitive opportunities for Mexican tuna products.  For Mexico, the corollary of this finding is that "pr ohibiting the use of the AIDCP label denies imports 
competitive opportunities".
174  On this basis, Mexico contends that it is clear that the 
US "dolphin-safe" labelling provisions modify the cond itions of competition in the relevant market to 
                                                      
170Mexico's other appellant's submission, para. 130 (referring to Appellate Body Report, US – Shrimp , 
para. 166). 
171Mexico's other appellant's submission, para. 134.  
172Mexico's other appellant's submission, para. 137.  
173Mexico's other appellant's submission, para. 137.  
174Mexico's other appellant's submission, para. 139.   WT/DS381/AB/R 
Page 34  
 
the detriment of imported Mexican tuna products  and in favour of like tuna products from the 
United States and other countries, and thereby violate Article 2.1. 
90. Thus, Mexico submits that the Panel could have confined its analysis to finding that access to 
the "dolphin-safe" label was an "advantage", th at access to the label was controlled by the 
US "dolphin-safe" labelling provisions, and that mo st Mexican tuna products do not have access to 
the label, while all or most tuna products fro m the United States and other countries do have access.
175  
Mexico suggests that this would have been a suffici ent basis to conclude that the US measure results 
in de facto  discrimination.  Mexico submits that the Pa nel erred by conducting a detailed analysis of 
whether "Mexican tuna products could somehow  get access to the label."176  According to Mexico, the 
Panel was essentially ruling that, if there is an alte rnative way to obtain the advantage, there is no less 
favourable treatment under Article 2.1.  Mexico  submits that this interpretation goes against 
established jurisprudence that "the availability of alternatives to avoid less favourable treatment does 
not eliminate the less favourable treatment."177  Mexico adds that the Panel's interpretation of 
Article 2.1 would, in this case, require a devel oping country to give up its natural comparative 
advantage and force it to adopt environm entally unsustainable fishing methods. 
91. Mexico further alleges that the Panel erred by relying on the Appellate Body report in 
Dominican Republic – Import and Sale of Cigarettes to find that the adverse impact of the challenged 
measure on Mexican tuna products is "unrelated to the foreign origin of the product".178  Mexico 
submits that the Appellate Body's findings in that  case are "readily distingui shable from the facts in 
this case".179  Mexico points out that, in this dispute, the discriminatory effect exists not between 
certain producers and importers but between the gr oup of Mexican tuna products overall compared to 
the group of like tuna products from the United Stat es and, in the case of Mexico's MFN claims, 
between the group of Mexican tuna products and th e group of tuna products from other countries.  
Further, the discrimination in this dispute do es not depend upon the characteristics of individual 
importers, but rather on the fishing practices of th e fleets that catch the tuna and the canneries that 
produce the tuna products for exportation to the United  States.  Mexico adds that a measure that is 
"origin neutral" on its face can violate the nationa l treatment obligation if it has the effect of 
modifying the conditions of competition to the de triment of the imported product by denying the 
imported product the equality of competitive opportuniti es with a like domestic product in the market 
                                                      
175Mexico's other appellant's submission, para. 142. 
176Mexico's other appellant's submission, para. 143. (emphasis added) 
177Mexico's other appellant's submission, para. 144 (referring to Panel Report, Canada – Wheat Exports 
and Grain Imports , paras. 6.213 and 6.295;  and Panel Report, Canada – Autos , para. 10.87). 
178Mexico's other appellant's submission, paras. 170 and 172 (referring to Panel Report, para. 7.375, in 
turn quoting Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 96). 
179Mexico's other appellant's submission, para. 172.  WT/DS381/AB/R 
 Page 35 
 
 
of the importing WTO Member.180  Mexico emphasizes that, by its very nature, de facto 
discrimination occurs when the challenged measure do es not, on its face, discriminate based on origin.  
Mexico adds that it is only when the rele vant facts are examined as a whole that de facto 
discrimination becomes apparent.  Mexico conclud es that, since the challenged measure uses a market 
access restriction "to pressure Mexico and the Me xican fleet to adopt essentially the same dolphin-
safe regime as in force in the United States", the measure " per se  target[s] the origin of the tuna 
products—i.e., Mexican tuna products".181  If it did not do so, Mexico submits, the underlying 
objective of the US "dolphin-safe" labelling provisions to change Mexico's fishing methods would not be met. 
92. Finally, Mexico claims that the Panel erred in  concluding that the adverse impact on Mexican 
tuna products is caused by the actions of private act ors.  Referring to the Appellate Body report in 
Korea – Various Measures on Beef , Mexico argues that the measure at issue, by laying down 
exclusive conditions for the use of the "dolphin-saf e" label, restricts the conditions under which the 
label may be used and, therefore, also restrict s the nature of the choice that can be made by 
US consumers.  In particular, Mexico points to the Panel's finding that the measure at issue creates an 
exclusive standard to inform consumers about the " dolphin-safety" of tuna products and that there is 
no possibility for any alternative definitions of wh at is "dolphin-safe" on the US market (such as 
AIDCP "dolphin-safe"), except in compliance with th e exclusive criteria set out in the measure.  
According to Mexico, both parties agree that US consumers will make choices based on whether or 
not the "dolphin-safe" label is displayed on a tuna product.  As a direct consequence of the measure, 
US consumers are denied the option of choosing Me xican tuna products that are labelled with the 
international AIDCP "dolphin-safe" label.  Mexico maintains that, to the extent some element of 
private choice is involved, it does not relieve the Un ited States' responsibility to comply with its non-
discrimination obligations given the "undeniable impact" of the US measure on the consumers' 
choice.
182  Mexico concludes that it is the government  intervention in the form of a technical 
regulation that adversely affects the conditions of co mpetition in the relevant market to the detriment 
of imported products, and not the actions of private parties. 
(b) Article 11 of the DSU 
93. In the event that the Appellate Body finds that  the Panel did not err in its interpretation and 
application of Article 2.1 of the TBT Agreement , Mexico claims that the Panel acted inconsistently 
with Article 11 of the DSU in failing to consid er evidence put forward by Mexico that it was 
                                                      
180Mexico's other appellant's submission, para. 174. 
181Mexico's other appellant's submission, para. 179.  
182Mexico's other appellant's submission, para. 186. WT/DS381/AB/R 
Page 36  
 
"impossible" for the Mexican tuna industry to change its fishing practices to adapt to the 
US "dolphin-safe" labelling provisions.
183  Mexico explains that a change in its fishing practices or 
fishing areas would make the Mexican tuna industry unprofitable and unable to compete.  According 
to Mexico, the only way for the industry to remain viable is by fishing mature yellowfin tuna in 
association with dolphins within its exclusive economic  zone and adjacent waters.  In support of its 
position, Mexico points to evidence provided by Mexico to the Panel "in which the three major 
companies making up the Mexican tuna industry clearly state that it is impossible to change their 
fishing practices or fishing area due to financia l, administrative, environmental and practical 
constraints".184  According to Mexico, this evidence also "confirms" that the Mexican tuna industry's 
principal concern is not the adaptation costs but the impossibility of adap ting to the US measure.185  In 
Mexico's view, the Panel should have properly we ighed the costs that the Mexican industry would 
have to bear in order to obtain access to the advant age provided by the US "dolphin-safe" label.  For 
Mexico, this is relevant for evaluating whether th e suggested approach is feasible taking into account 
the particular circumstances of the Mexican fleet. 
94. Mexico also claims that, in finding that it w as not clear that the AIDCP label had value to 
retailers and that retailers had si milar perceptions to canneries, the Panel acted incons istently with 
Article 11 of the DSU because it omitted from its an alysis relevant factual findings, evidence, and 
arguments.  In particular, Mexico takes issue with what it describes as the Pane l's "view that there was 
evidence that a dolphin-safe label associated with no setting on dolphins had value in the U.S. market 
but the evidence was less clear that the AIDC P dolphin-safe label, which allows for setting on 
dolphins under the strict requirements of the AIDCP, has value in that market."186  Additionally, 
Mexico submits that the Panel's analysis is "faulty " because it is based primarily on the perceptions of 
canneries, who are consumers of t una and producers of tuna products.187  Mexico argues that the 
perceptions of canneries must be distinguished fro m those of retailers because:  (i) canneries and 
retailers operate at different levels  of trade;  (ii) retailers do not label tuna products themselves, but 
rather receive tuna products already labelled by th e canneries;  and (iii) retailers do not have a legal 
need to know precisely what the label means;  rather , their concern is to have tuna products that can 
be lawfully labelled as "dolphin-safe".188  Mexico further alleges that the Panel acted inconsistently 
with Article 11 of the DSU by failing to address Mexico's argument that allowing the use of the 
AIDCP "dolphin-safe" label will enable Mexico to fully inform US consumers and promote its tuna 
                                                      
183Mexico's other appellant's submission, para. 149. 
184Mexico's other appellant's submission, para. 150 (referring to Panel Exhibits MEX-86(A), 
MEX-86(B), and MEX-86(C) (BCI)). 
185Mexico's other appellant's submission, para. 151.  
186Mexico's other appellant's submission, para. 161. 
187Mexico's other appellant's submission, para. 162. 
188Mexico's other appellant's submission, para. 162.  WT/DS381/AB/R 
 Page 37 
 
 
products and the sustainability of its fishing pr actices to rebalance the competitive opportunities and 
that this in turn would "unlock latent de mand" in the market for those tuna products.189  Finally, 
Mexico contends that the Panel's conclusion is inc onsistent with evidence indicating that some of the 
major US chains have expressly indicated that, if the tuna product at issue qualified to be labelled 
"dolphin-safe", they would sell it, and that a comp any's inability to place the "dolphin-safe" label on 
the cans has directly affected its ability to sell the Mexican brand in the United States. 
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement  
95. Mexico raises two claims in its conditional app eal of the Panel's finding under Article 2.2 of 
the TBT Agreement .  Each of these claims is conditional upon the Appellate Body reversing the 
Panel's finding that the measure at issue is  inconsistent with Article 2.2 of the TBT Agreement .  First, 
Mexico requests the Appellate Body to reverse the Pa nel's intermediate finding that the United States' 
objective of 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 is a legitimate 
objective, and to find, instead, that it is not a leg itimate objective within the meaning of Article 2.2 of 
the TBT Agreement .  In the alternative, Mexico requests the Appellate Body to confirm that the 
US "dolphin-safe" labelling provisions are inconsistent with Article 2.2 of the TBT Agreement  based 
on the Panel's finding that the US "dolphin-safe" labelling provisions did not fulfil the United States' 
objectives. 
96. With respect to its first claim, Mexico submits that the Panel formulated the legal test of 
whether an objective is legitimate within  the meaning of Article 2.2 of the TBT Agreement as whether 
the "objective[] 'go[es] against the object and purpose'" of the TBT Agreement .190  According to 
Mexico, this legal test is incorrect, because it allo ws for "coercive objective[s]" creating barriers to 
trade to be considered legitimate.  Mexico fu rther alleges that the Panel erred in finding the 
United States' dolphin protection objective to be a legitimate objective.191  The list of examples of 
legitimate objectives in Article 2.2 of the TBT Agreement informs the interpretation of the term 
"legitimate objective" in that provision.  None of the listed objectives includes language similar to "by 
ensuring that the US market is not used to en courage".  These examples do not contemplate a 
"coercive and trade restrictive objective".192  The United States' dolphin protection objective, 
however, is a "coercive objective", because its purpose is to "coerce" another WTO Member to change its practices to comply with th e unilateral policy of the United States. 
                                                      
189Mexico's other appellant's submission, para. 166. 
190Mexico's other appellant's submission, para. 266 (quoting Panel Report, para. 7.443). 
191Mexico's other appellant's submission, para. 267. 
192Mexico's other appellant's submission, para. 271. WT/DS381/AB/R 
Page 38  
 
97. Moreover, Mexico alleges that the dolphi n protection objective is unnecessary, and 
constitutes a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.  
Mexico submits that the Panel's refere nces to the Appellate Body reports in US – Gasoline and  
US – Shrimp do not support the proposition for which the Pa nel cited them, namely, that Members can 
identify whatever objectives th ey wish.  Yet, Mexico asserts that the situation in US – Gasoline  is 
"closely analogous" to the situation in the present case.
193  In US – Gasoline , the measure at issue was 
found to be inconsistent with  Article III:4 of the GATT 1994 a nd could not be justified under 
Article XX, because it constituted a "disguised restri ction on trade" and "unjus tifiable discrimination" 
inconsistent with the chapeau of Article XX.  Mexi co asserts that the basis of these findings of breach 
was that the United States had acted unilaterally, wi thout first attempting to achieve its goal through 
cooperation with the affected Members.  For Mexico, the situation in the present case is similar to that 
in US – Gasoline , in that the United States disregarded a multilateral agreement that addresses the 
very same subject as the measure at issue, namely , the protection of dolphins and the prerequisites for 
labelling tuna products as "dolphin-safe".194 
98. In addition, Mexico asserts that the fi fth recital of the preamble of the TBT Agreement refers 
to ensuring that technical regulations do not create unnecessary obstacles to international trade.  Yet, a 
coercive and trade restrictive objective can only be "fulfilled" within the meaning of Article 2.2 by a measure that is coercive and trade restrictive a nd, thus, such obstacles to trade would always be 
"necessary".  In the face of such an objective, it would be difficu lt to give meaning to the term 
"unnecessary obstacles to trade" in the preamble.  Ho wever, Mexico considers it important that this 
language in the preamble be given meaning, because otherwise WTO Members could define the 
objectives of their technical regulations so narrowly, and with such high levels of protection, that no 
other alternative measure could fulfil those objectives. 
99. With respect to its alternative claim, Mexico alleges that the Panel erred in proceeding to 
examine whether there was a less trade-restrictive alternative measure after it had found that the 
measure at issue could, at best, only partially fulfil the two objectives.  For Mexico, it is not possible to find that there is a less tr ade-restrictive alternative measure that fulfils the objectives when the 
US measure itself does not fulfil the objectives.  In addition, it would be impos sible to take account of 
the risks non-fulfilment would create if, in fact, no n-fulfilment already exists  with the measure at 
issue.  Mexico alleges that, upon concluding that the US "dolphin-safe" labelling provisions did not 
                                                      
193Mexico's other appellant's submission, para. 275. 
194Mexico's other appellant's submission, para. 275 (referring to Appellate Body Report,  
US – Gasoline , p. 25, DSR 1996:1, 3, at 23).  WT/DS381/AB/R 
 Page 39 
 
 
fulfil the two objectives, the Panel's analysis s hould have ended and it s hould have found that the 
US "dolphin-safe" labelling provisions were inconsistent with Article 2.2.195 
3. Article 2.4 of the TBT Agreement  and the Effectiveness and Appropriateness 
of the AIDCP Standard as a Means to  Fulfil the United States' Objectives 
100. Mexico appeals the Panel's finding that the AI DCP standard would be an ineffective or 
inappropriate means for the fulfilment of the le gitimate objectives pursued by the United States.196  
Mexico submits that there is "some flexibility … between the standard and the fulfillment of the 
legitimate objectives" and that the "necessary degree of fulfillment" will depend on the individual 
facts and circumstances of each case.197  Mexico further submits that, in this dispute, "the fact that the 
U.S. dolphin-safe labelling provisions do not themselv es completely fulfill either of the two legitimate 
objectives … is relevant to the determination of whether the AIDCP standard is 'ineffective or 
inappropriate'."198 
101. Mexico clarifies that the relevant international standard that it has identified is "the definition 
of 'dolphin safe' established by the AIDCP's 'Resolution to Establish Procedures for AIDCP Dolphin 
Safe Tuna Certification'".  This definition, in  turn, incorporates by reference the definition of 
"dolphin-safe" from the AIDCP's "Resolution to Adopt the Modified System for Tracking and Verification of Tuna".
199  The definition provides that "[ d]olphin safe tuna" is "tuna captured in sets in 
which there is no mortality or serious injury of dolphins", and "[ n]on-dolphin safe  tuna" is "tuna 
captured in sets in which mortality or serious injury occurs".200  Mexico stresses that it "expressly 
defined 'AIDCP standard' to mean this definition".201  
102. Mexico argues that the Panel erred in not ev aluating whether the AIDCP standard would be 
an effective and appropriate means to fulf il the United States' objectives in fisheries outside  the ETP.  
Mexico recalls the Panel's statement that "to the ex tent that the US objectives are not limited to the 
ETP, and that the AIDCP standard addresses fishi ng conditions in the ETP and not in any other 
fishery, the AIDCP standard alone would not have the capacity to address US concerns in relation to 
                                                      
195Mexico's other appellant's submission, paras. 279-287.  
196Mexico's other appellant's submission, para. 232 (referring to Panel Report, paras. 7.740 and 8.1(c)) 
and para. 260. 
197Mexico's other appellant's submission, para. 234.  
198Mexico's other appellant's submission, para. 235.   
199Mexico's other appellant's submission, para. 237 (referring to AIDCP Resolution to Adopt the 
Modified System for Tracking and Verification of Tuna (20 June 2001) (Panel Exhibit MEX-55);  and AIDCP Resolution to Establish Procedures for AIDCP Dolphin Safe Tuna Certification (20 June 2001) (Panel 
Exhibit MEX-56)). 
200Mexico's other appellant's submission, para. 237 (quoting Panel Exhibit MEX-55, supra , 
footnote 199).  
201Mexico's other appellant's submission, para. 238 (referring to Mexico's first written submission to 
the Panel, footnote 149 to para. 229). WT/DS381/AB/R 
Page 40  
 
the manner in which tuna is caught beyond the ETP."
202  Mexico submits that there is "nothing 
inherent about the definition 'captured in sets in which there is no mortality or serious injury of 
dolphins' that is limited in applicability to the ETP."203  For Mexico, it appears that the Panel was 
referring to the measures taken by the AIDCP to im plement and enforce the AIDCP's requirements.  
In Mexico's view, the fact that these measures "hav e not yet been implemented outside the ETP" does 
not justify the conclusion that the AIDCP st andard would be ineffective outside the ETP.204  Mexico 
argues that the Panel appears to have "confused" th e definition of "dolphin-safe" with the means for 
verifying compliance with the applicable definition of "dolphin-safe".205 
103. Mexico further submits that, even assuming th at the AIDCP enforcement mechanisms were 
relevant, the Panel "did not explain" why implem enting the same enforcement mechanisms outside 
the ETP would not address the United States' concern of protecting dolphins.  In Mexico's view, the 
Panel's statement that it could not assume that a regime modelled on the AIDCP would lead to the 
achievement of the United States' objectives outside  the ETP contradicts its earlier finding regarding 
the "pertinence" of the AIDCP's independent observer programme for other fisheries.206   
104. Mexico contends that the Panel's "limited approach" in analyzing the effectiveness and 
appropriateness of the AIDCP "dolphin-safe" defini tion led it to ignore evidence showing that most 
tuna products sold in the US market contain tuna sourced from the WCPO.207  As Mexico sees it, this 
evidence, reviewed by the Panel under Article 2.2 of the TBT Agreement , would have shown that "the 
potential effectiveness and appropriateness of applyi ng the definition of dolphin-safe of the AIDCP 
standard to non-ETP tuna products  was crucial to a proper evaluation of the Article 2.4 claim."208  In 
addition, Mexico alleges that the Panel's failure  to evaluate whether the AIDCP definition of 
"dolphin-safe" would be effective and appropriate in fulfilling the United States' objectives outside the 
ETP was inconsistent with the Panel's obligation un der Article 11 of the DSU to make an objective 
assessment of the matter before it.  
105. Turning to the Panel's evaluation of whether the AIDCP standard would be effective and 
appropriate for the fulfilment of the United States' objectives inside  the ETP, Mexico faults the Panel 
for applying an "incorrect legal test" and cond ucting an "inconsistent a nd incomplete" analysis.209  
With regard to the consumer information objective,  Mexico takes issue with the Panel's finding that 
                                                      
202Mexico's other appellant's submission, para. 241 (quoting Panel Report, para. 7.727).  
203Mexico's other appellant's submission, para. 243.  
204Mexico's other appellant's submission, para. 243.  
205Mexico's other appellant's submission, para. 243.  
206Mexico's other appellant's submission, para. 244 (referring to Panel Report, para. 7.706).  
207Mexico's other appellant's submission, para. 245. 
208Mexico's other appellant's submission, para. 246.  
209Mexico's other appellant's submission, para. 251.   WT/DS381/AB/R 
 Page 41 
 
 
the AIDCP standard "does not convey 'any informa tion on the fishing method that has been used … , 
or on the impact [that] such method may have on dolphins'".210  Mexico submits that this statement 
"incorrectly" describes the AIDCP standard, sin ce "[b]y its express terms and as reflected in its 
implementation, the AIDCP standard is not limited in application to any specific fishing method."211 
106. Mexico further alleges that the Panel did not properly assess whether the AIDCP standard 
would be "ineffective".  Mexico submits that for over 90 per cent of the tuna products sold in the 
US market the AIDCP standard would accomplish the legitimate objectives pursued by the 
United States "in a more effective manner  than the U.S. dolphin-safe labelling provisions".212  I n  
Mexico's view, it would be illogical to conclude th at the AIDCP standard would be ineffective in 
fulfilling the consumer information objective when it is "overall much more effective" than the 
measure at issue in fulfilling this objective.213 
107. With regard to the dolphin protection objective,  Mexico recalls what it views as the Panel's 
finding in the context of Article 2.2 of the TBT Agreement , namely, that the US measure does not 
fulfil this objective and in fact undermines it.214  Mexico argues that, because the Panel "chose not to 
evaluate the potential application of the AIDCP stan dard to tuna products made from tuna harvested 
outside the ETP, it did not address the inconsis tency arising from its prior finding that the 
U.S. dolphin-safe label is ineffective in fulfilling the U.S. objective outside the ETP."215  M e x i c o  
submits that "if the AIDCP standard is more effective at fulfilling the U.S. objective for over 
90 percent of the tuna products sold in the U.S. market, … the only logical conclusion is that the 
AIDCP standard overall would be effec tive at fulfilling the U.S. objective."216  Finally, Mexico 
submits that the AIDCP standard would also be "app ropriate" to fulfil the United States' objectives.  
In particular, Mexico claims that "the United Stat es has already determined that the 'no dolphins killed 
or seriously injured' standard is appropriate for the ETP".217  Hence, Mexico suggests that "certainly it 
is also appropriate for application outside the ETP."218 
4. The Panel's Exercise of Judicial Economy 
108. Mexico argues that the Panel exercised false j udicial economy and acted inconsistently with 
its obligations under Article 11 of the DSU by declin ing to rule on Mexico's claims under Articles I:1 
                                                      
210Mexico's other appellant's submission, para. 253 (quoting Panel Report, para. 7.729).  
211Mexico's other appellant's submission, para. 253.   
212Mexico's other appellant's submission, para. 256. (original emphasis)  
213Mexico's other appellant's submission, para. 256.   
214Mexico's other appellant's submission, para. 257 (referring to Panel Report, paras. 7.597 and 7.598).  
215Mexico's other appellant's submission, para. 258.  
216Mexico's other appellant's submission, para. 258.   
217Mexico's other appellant's submission, para. 259.  
218Mexico's other appellant's submission, para. 259.  WT/DS381/AB/R 
Page 42  
 
and III:4 of the GATT 1994.  Mexico points out that, although Article 2.1 of the TBT Agreement  and 
Articles I:1 and III:4 of the GATT 1994 deal with non-discrimination obligations, each of them is 
different in scope and application.   Referring to the panel report in US – Upland Cotton , Mexico 
further argues that the obligations in Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement  apply simultaneously to the US measure and should be read cumulatively.  Thus, after 
finding no violation of Article 2.1 of the TBT Agreement , the Panel should have continued with an 
analysis of Mexico's claims under the GATT 1994.   Referring to the Appellate Body report in 
Australia – Salmon , Mexico further argues that a panel cannot exercise judicial economy "where only 
a partial resolution of a dispute would result'".
219 
109. Mexico further argues that the Panel's finding that  the challenged measure is inconsistent with 
Article 2.2 of the TBT Agreement  is not sufficient to provide a po sitive solution to the dispute with 
respect to Mexico's discrimination claims under the GATT 1994.  Mexico recalls that in US – Poultry 
(China)  the panel declined to limit its examination to the SPS Agreement  and a claim under Article XI 
of the GATT 1994 and proceeded to examine Ch ina's claim under Article I of the GATT 1994.220  
Similarly, in US – Clove Cigarettes , the panel stated that, if it did not make a finding of violation 
under Article 2.1 of the TBT Agreement , it would examine the alternative claim under Article III:4 of 
the GATT 1994.221  According to Mexico, these disputes re semble the present case where the Panel 
should have ruled on Mexico's claims under Artic les I:1 and III:4 of the GATT 1994.  Mexico also 
requests the Appellate Body to rule that the Unite d States acted inconsistent ly with these provisions. 
110. In support of its position that the US "dolphin- safe" labelling provisions are inconsistent with 
Article I:1 of the GATT 1994, Mexico argues that tuna products from Mexico, the United States, and 
other countries were correctly found by the Panel to be  "like products".  Mexico further posits that the 
advantage of access to the label is not granted "immediately and unconditionally" to the like product 
of Mexico, since the US "dolphin-safe" labelling provi sions make the advantage (that is, the right to 
use the "dolphin-safe" label) subject to conditions with respect to the situation or conduct of Mexico 
(that is, fishing methods for tuna).  In Mexico's view, these conditions discriminate de facto  against 
Mexican tuna products in favour of tuna products from other countries. 
111. With respect to Article III:4 of the GATT 1994, Me xico recalls that the products at issue in 
the present dispute were found to be "like products " and submits that the US measure constitutes a 
law, regulation, or requirement within the meaning of  Article III:4.  Mexico further contends that the 
                                                      
219Mexico's other appellant's submission, para. 204 (referring to Appellate Body Report,  
Australia – Salmon , para. 223;  and Panel Report, EC – Sardines , paras. 7.148-7.152). 
220Mexico's other appellant's submission, para. 205 (referring to Panel Report, US – Poultry (China) , 
paras. 6.28 and 6.34). 
221Mexico's other appellant's submission, para. 205 (referring to Panel Report, US – Clove Cigarettes , 
para. 7.16).  WT/DS381/AB/R 
 Page 43 
 
 
measure at issue "affects" the internal sale, offeri ng for sale, purchase, transportation, distribution, or 
use of tuna products and tuna, since participants in  the US tuna and tuna product market are highly 
sensitive to issues related to dolphin mortality and wi ll make decisions on whether or not to purchase, 
offer for sale, distribute, process, or use tuna produc ts on the basis of whether they are designated as 
"dolphin-safe" or, in the case of tuna, can be designated as "dolphin-safe" after processing.  Finally, referring to its arguments regarding less favourable treatment in the context of Article 2.1 of the 
TBT Agreement , Mexico claims that, for th e same reasons, the US measu re accords less favourable 
treatment to imported Mexican tuna compared to that accorded to like US tuna products. 
D. Arguments of the United States – Appellee 
1. Consistency of the Measure at Issue with Article 2.1 of the TBT Agreement  
112. The United States requests the Appellate Body to reject Mexico's other appeal of the Panel's 
finding that the US "dolphin-safe" labelling provisions  are not inconsistent with Article 2.1 of the 
TBT Agreement .  According to the United States, the Panel properly interpreted and applied 
Article 2.1 in concluding that the measure at i ssue does not accord Mexican tuna products less 
favourable treatment than US tuna products and tuna products originating in other countries.  
(a) Interpretation and Applicati on of Article 2.1 of the TBT Agreement  
113. The United States disagrees with Mexico's asserti on that the Panel erred in its interpretation 
of the phrase "treatment no less favourable" in Article 2. 1.  According to the United States, the Panel's 
interpretation is fully consistent with the ordinary meaning of the term, in both the immediate context 
of Article 2.1 and in the context of similar provi sions in other WTO agreements, as well as the object 
and purpose of the TBT Agreement . 
114. In the United States' view, "an inquiry into  whether a measure provides 'less favourable 
treatment' requires a determination of whether a measure accords different treatment to imported 
products versus domestic products and whether it does so based on origin."222  According to the 
United States, "[t]he notion that the different treatme nt must be based on origin (as opposed to origin-
neutral criteria) is evident from Article 2.1 itself", as well as relevant cont ext provided by that of 
Article III of the GATT 1994 and the TBT Agreement .223  The United States quotes the 
Appellate Body's statement in EC – Asbestos  that "[t]he broad and funda mental purpose of Article III 
                                                      
222United States' appellee's submission, para. 32 (referring to Panel Report, Brazil – Retreaded Tyres , 
paras. 7.420 and 7.421;  Panel Report, Canada – Autos , paras. 7.179-7.182;  Panel Report, Canada – Wheat 
Exports and Grain Imports , para. 6.164;  Appellate Body Reports, China – Auto Parts , paras. 192-195;  Panel 
Report, India – Autos , paras. 7.199-7.202;  Appellate Body Report, Korea – Various Measures on Beef , 
paras. 143 and 144;  and Panel Report, Mexico – Taxes on Soft Drinks , paras. 8.120-8.122). (original emphasis) 
223United States' appellee's submission, para. 32.  WT/DS381/AB/R 
Page 44  
 
is to avoid protectionism in the applicati on of internal tax and regulatory measures."
224  T h e  
United States argues that, given the "similar natu re of the obligations" in Article III:4 of the 
GATT 1994 and Article 2.1 of the TBT Agreement , the "broad and fundamental purpose" of Article 
2.1 may also be considered as avoiding protectioni sm in the application of technical regulations.225  
For the United States, the fact that Article 2.1 is part of the TBT Agreement  is also relevant context.  
The United States notes in this regard that standard s, technical regulations, and conformity assessment 
procedures, by definition, draw distinctions am ong products.  According to the United States, this 
supports the view that the types of measures with wh ich Article 2.1 is concerned are those that accord 
different treatment based on origin, not those that provide different treatment based on factors other than origin (such as whether a product possesses charact eristics that may be harmful to humans or the 
environment or is produced in a manner that would ma ke a particular label deceptive or misleading).  
For the United States, the language in th e sixth recital of the preamble of the TBT Agreement  confirms 
this interpretation. 
115. The United States acknowledges that the WTO agreements "do not specify a precise 
approach" to the question when the treatment a ccorded to imported products is "less favourable".
226  
However, in previous cases addressing this question in the context of Article III of the GATT 1994, 
panels and the Appellate Body have "typically assessed" whether a measure "modifies the conditions 
of competition to the detriment of like imported products".227  In the United States' view, "these cases 
reflect the fact that, even if a measure modifies  conditions of competition, it does not provide 'less 
favourable treatment' within the meaning of Article 2.1 if it does so for reasons other than origin ."228  
According to the United States, this "critical elemen t" of the analysis is ab sent from Mexico's theory 
of less favourable treatment.229  By contrast, the Panel's analysis of "less favourable treatment" was 
"fully consistent" with this framework.230  The United States notes, in particular, that the Panel's 
assessment focused on whether any different treatme nt was accorded to Mexican tuna products under 
the measure and whether the difference was attribut able to origin, and that the Panel "rejected 
Mexico's argument on both counts".231 
                                                      
224United States' appellee's submission, para. 33 (quoting Appellate Body Report, EC – Asbestos , 
para. 97, in turn quoting Appellate Body Report, Japan – Alcoholic Beverages II , p. 16, DSR 1996:1, 97, 
at 109). 
225United States' appellee's submission, para. 33. 
226United States' appellee's submission, para. 35.  
227United States' appellee's submission, para. 35.  
228United States' appellee's submission, para. 35 (referring to Panel Report, EC – Approval and 
Marketing of Biotech Products , paras. 7.2514 and 7.2515;  and Appellate Body Report,  
Dominican Republic – Import and Sale of Cigarettes , para. 96). (original emphasis) 
229United States' appellee's submission, para. 35.  
230United States' appellee's submission, para. 36.  
231United States' appellee's submission, para. 36.   WT/DS381/AB/R 
 Page 45 
 
 
116. The United States dismisses Mexico's criticism of the Panel's "denial of access to an 
advantage" test for whether "treatment no less favour able" exists.  The United States submits that, to 
the extent that the Panel referred to "denial of  access", it did so to address what Mexico itself 
described as "the factual basis" for its claim under Article 2.1, namely, that Mexican tuna products are 
"prohibited" from using the "dolphin-safe" label and are therefore denied competitive opportunities as 
compared to like products from the United States and other countries.232  Moreover, argues the 
United States, the Panel's discussion of the existence of an "advantage" does not indicate a failure to 
consider conditions of competition in its analysis b ecause, in several parts of its analysis, the Panel 
explicitly referred to conditions of competition.233  The United States further contends that nothing in 
the Panel's analysis suggests that it viewed l ess favourable treatment as arising only when an 
"absolute prohibition or bar" exists.234  Finally, the United States argu es that the ability of Mexican 
tuna products to qualify for the US "dolphin-safe"  label through other means "bears on the threshold 
question of whether different treatment is attribut able to origin", which Mexico failed to establish.235 
117. Turning to Mexico's proposed interpretation of the phrase "treatment no less favourable" in 
Article 2.1 of the TBT Agreement , the United States asserts that Mexico's understanding of the 
concept is "flawed".236  As the United States sees it, Mexico asks, under the guise of "context", that 
the Appellate Body "read into the text of Article 2. 1 an entire set of obligations that are not there".237  
Mexico's suggestion that the Panel should have eval uated in the light of the sixth recital whether the 
measure is "necessary, is applied in a manner wh ich would constitute a means of arbitrary or 
unjustifiable discrimination between countries where th e same conditions prevail, or is applied in a 
manner which would constitute a disguised restrict ion on trade", represents, in the United States' 
view, a "misuse of context" and has no basis in the text of Article 2.1.238  The United States also 
submits that Mexico equates a conditions-of-compe tition analysis with the concept of "equality of 
competitive opportunities".239  To the United States, this reflects Mexico's view that the non-
discrimination obligation in Article 2.1 seeks to en sure not only that a measure does not modify the 
conditions of competition to the de triment of imports, but that a measure also preserves "equality of 
                                                      
232United States' appellee's submission, para. 37 (referring to Mexico's other appellant's submission, 
paras. 74, 75, 143, and 144;  and Panel Report, para. 7.279, in turn referring to Mexico's second written 
submission to the Panel, para. 150). 
233United States' appellee's submission, para. 38 (referring to Panel Report, para. 7.359). 
234United States' appellee's submission, para. 39 (referring to Mexico's other appellant's submission, 
para. 143).  
235United States' appellee's submission, para. 40.   
236United States' appellee's submission, para. 41. 
237United States' appellee's submission, para. 41.  
238United States' appellee's submission, para. 48 (referring to Mexico's other appellant's submission, 
para. 111).  
239United States' appellee's submission, para. 50 (referring, for example, to Mexico's other appellant's 
submission, paras. 96 and 97). WT/DS381/AB/R 
Page 46  
 
competitive opportunities" for all products.
240  The United States submits that this interpretation does 
not comport with how prior panel and Appellate  Body reports have applied a conditions-of-
competition analysis, as well as with the terms of Article 2.1. 
118. Finally, the United States submits that Mexico's interpretation would create a "serious 
obstacle" for legitimate regulatory action.241  The United States points out  that it is impossible for a 
Member to know in advance the precise costs th at a measure will impose on each producer in every 
other Member, and that it would be "nearly impossibl e" to calibrate a measure such that it does not 
have a greater impact on one or another Member's  products relative to its own or other Members.242  
According to the United States, under Mexico's inte rpretation, Members would not be able to adopt 
origin-neutral technical regulations without breach ing their non-discrimination obligations "unless 
they were able to 'justify' the measure under Mexico's quasi-Article XX analysis."243  F o r  t h e  
United States, this would be "at odds" with the TBT Agreement 's approach to respecting Members' 
legitimate objectives, since the TBT Agreement  does not limit the legitimate objectives that a Member 
may pursue through technical regulations.244  By contrast, Mexico's interpretation would prevent 
Members from adopting technical regulations except  to fulfil the limited number of objectives 
specified in the sixth recital of the preamble of the TBT Agreement .  
119. The United States rejects Mexico's assertion th at the Panel erred in concluding that the 
adverse impact felt by Mexican tuna products in  the US market is the result of factors or 
circumstances unrelated to the fore ign origin of the product.  The United States argues that it is not the 
Panel, but Mexico, that misconstrues th e findings of the Appellate Body in Dominican Republic – 
Import and Sale of Cigarettes .  The United States agrees with Mexico that discrimination in this 
dispute does not depend upon the characteristics of individual importers but, rather, on the fishing 
practices of the fleet that caught the tuna and the canneries that produced the tuna products for 
exportation to the United States.  According to the United States, this is "precisely the argument that, 
based on the facts before it, left the Panel unpersuaded"245, since Mexico did not provide sufficient 
evidence to demonstrate that the fishing methods used by a country's fleet "correlated" to the origin of 
that country's tuna products.246  The United States also disagrees with Mexico's assertion that the 
Panel's interpretation is "somehow at odds with the notion that discrimination may be de facto as well 
                                                      
240United States' appellee's submission, para. 50.  
241United States' appellee's submission, para. 53.  
242United States' appellee's submission, para. 53.  
243United States' appellee's submission, para. 53.   
244United States' appellee's submission, para. 53. 
245United States' appellee's submission, para. 86. 
246United States' appellee's submission, para. 86 (referring to Panel Report, paras. 7.302-7.358).  WT/DS381/AB/R 
 Page 47 
 
 
as de jure ".247  According to the United States, the Panel fully understood the notion and ambit of 
de facto discrimination.  Yet, the fact that some imported products may fall within the group of like 
products that are subject to different treatment that may be less favourable is not evidence that a 
measure accords less favourable treatment to imported products as compared to like domestic products, particularly where there is evidence that th e different treatment is not based on origin.  The 
United States finds support for its position in the Appellate Body report in EC – Asbestos , noting that 
"distinctions based on criteria other than origin are not distinctions that accord less favourable 
treatment … and neither Article III:4 nor Article 2.1 prohibit such distinctions."
248   
120. The United States further argues that Mexico misinterprets and misapplies the Appellate 
Body's findings in Korea – Various Measures on Beef when it claims that the Panel erred in 
concluding that the adverse impact is caused by priv ate actors, rather than th e measure at issue.  The 
United States submits that, unlike the measure in Korea – Various Measures on Beef , the 
US "dolphin-safe" labelling provisions do not "requi re retailers to choose between … tuna products 
that are labeled dolphin-safe and those that are not or that contain tuna caught by setting on dolphins 
and those that do not."249  Instead, any decision to sell one or the other is "purely" the choice of 
private actors.250  Recalling the Panel's finding that there is a preference in the US market for 
"dolphin-safe" tuna products, the United States argues that the preference of private actors for 
"dolphin-safe" tuna products cannot form the basis fo r concluding that the measure at issue modifies 
the conditions of competition because "[t]he limite d demand for non-dolphin safe tuna products is a 
result of preferences of market operators not the U.S. measure."251  The United States agrees with 
Mexico that the measure at issue restricts the op tion of selling tuna products  labelled "dolphin-safe" 
that contain tuna caught by setting on dolphins.  Ho wever, it argues that this  is not evidence that 
"establishes competitive conditions that are less favorable for imported products".252  According to the 
United States, "any change the U.S. measure in troduced regarding the conditions under which tuna 
products compete is not one that modified the cond itions of competition to the detriment of imported 
products or tuna products origin ating in some countries as compared to others", since "all tuna 
products compete under the same conditi ons", irrespective of their origin.253  In addition, the 
United States asserts that Mexico confuses the Panel's conclusion that the measure accords an 
advantage in the form of access to the label with th e question of whether the US measure accords that 
                                                      
247United States' appellee's submission, para. 87 (referring to Mexico's other appellant's submission, 
para. 174). 
248United States' appellee's submission, para. 89 (referring to Appellate Body Report, EC – Asbestos , 
para. 100). 
249United States' appellee's submission, para. 95.  
250United States' appellee's submission, para. 95.  
251United States' appellee's submission, para. 96. 
252United States' appellee's submission, para. 97. 
253United States' appellee's submission, para. 98. WT/DS381/AB/R 
Page 48  
 
advantage to Mexican tuna products.  The United St ates agrees with the Panel's finding that the 
measure at issue does not deny the advantage to Mexican tuna products. 
(b) Article 11 of the DSU 
121. The United States requests the Appellate Body to dismiss Mexico's argument that the Panel 
failed to consider and take into account evidence put  forward by Mexico that it was impossible for the 
Mexican tuna industry to change its fishing practi ces to adapt to the US measure.  The United States 
asserts that the Panel did consider and take into  account the evidence regarding the adaptation costs 
incurred by Mexican producers and therefore did not fail to make an objective assessment of the 
matter as required by Article 11 of the DSU.
254  The United States notes that the Panel summarized 
Mexico's arguments on this issue.255  Moreover, the United States contends that the Panel exhibits on 
which Mexico relies do not stand for the proposition that it is impossible for Mexican producers to 
meet the conditions for labelling tuna products "dolphin-safe".256  The United States points out that 
the affidavits contained in the Panel exhibits c over the same points regarding costs associated with 
fishing for tuna using techniques other than setting on dolphins that the Panel summarized in its Report.
257  For the United States, a panel fails to make an objective assessment of the facts if it 
wilfully disregards or distorts the evidence before it or makes affirmative findi ngs that lack a basis in 
the evidence.  The fact that the Panel, having cons idered the evidence, did not conclude that it would 
be impossible for Mexican producers to meet the la belling conditions does not, in the United States' 
view, amount to a failure of the Panel to  assess the matter in an objective manner. 
122. In addition, the United States asserts that Mexico  disregards the Panel's finding that not only 
is it possible for Mexican producers to adapt to catch ing tuna in a manner that would give them access 
to the US "dolphin-safe" label, but also that Mexi can producers already catch tuna in a manner that 
makes them eligible for the label.  The United States recalls the Panel's observations that a part of the 
Mexican fleet already catches tuna by methods other than setting on dolphins.258  The United States 
also asserts that Mexico's arguments ignore the f act that the measure at issue does not require a 
nation's entire shipping fleet to completely abandon the practice of setting on dol phins in order to gain 
access to the label.  For the United States, the Pane l's finding that Mexican producers could choose to 
                                                      
254United States' appellee's submission, para. 58 (referring to Panel Report, para. 7.344). 
255United States' appellee's submission, paras. 59 and 60 (referring to Panel Report, paras. 7.335-7.340, 
and 7.343). 
256United States' appellee's submission, para. 61 (referring to Panel Exhibits MEX-86(A), MEX-86(B), 
and MEX-86(C) (BCI)). 
257United States' appellee's submission, para. 61 (referring to Panel Report, paras. 7.336-7.340;  and 
Mexico's response to Panel Question 38, paras. 84-88). 
258United States' appellee's submission, para. 63 (referring to Panel Report, paras. 7.313-7.317).  WT/DS381/AB/R 
 Page 49 
 
 
use tuna harvested by vessels flagged to other nati ons whose fleets do not set on dolphins, shows that 
the costs Mexico cites with respect  to modifying fishing techniques or location could be avoided.   
123. Contrary to Mexico's view, the United States argues that the Panel did not fail to consider 
evidence regarding retailer preferences.  The Panel evaluated the evidence regarding retailer 
preferences and concluded that the evidence did not support the conclusion that retailers would 
purchase tuna products that contained tuna caught by  setting on dolphins if they could be labelled 
"dolphin-safe".259  According to the United States, the Pane l considered the affidavits submitted by 
Mexico, and cited evidence that retailers are con cerned with consumer acceptance of tuna products, 
and not with whether the product can lega lly be labelled "dolphin-safe" or not.260  Thus, the 
United States argues that, contrary to Mexico's assertion, the Panel did not rely solely upon the 
perceptions of canneries to reach its conclusion regarding retailers' preferences.  Therefore, the 
United States asserts that the Panel did not act inconsistently with Article 11 of the DSU. 
124. Regarding Mexico's claim that the Panel faile d to properly assess the "value" of the AIDCP 
label on the US market, the United States contends th at the findings and evid ence Mexico cites do not 
support its contention that the AIDCP label has valu e in the US market.  The United States submits 
that the mere existence of the measu re at issue does not support Mexico's position.  This is so because 
the reason for prohibiting the use of the AIDCP la bel on tuna products containing tuna caught by 
setting on dolphins is not that the AIDCP label has value, but because allowing its use on such 
products would be misleading. 
125. The United States rejects Mexico's argument that the Panel failed to consider that there could 
be "latent demand" for tuna products containing tuna caught by setting on dol phins and labelled with 
the AIDCP label.261  The United States begins by noting that  Mexico cites no evidence in this regard, 
and relies only upon past Appellate Body reports.  These Appellate Body reports cited by Mexico are 
distinguishable from the situation at hand because th e measure at issue does not affect consumers' 
ability to purchase tuna products.262  As the United States sees it, what affects consumer and retailer 
demand for Mexican tuna products is whether the tuna is "dolphin-safe", and not where the tuna 
product originates.263  Thus, unlike in Philippines – Distilled Spirits , there is no basis for the Panel to 
have considered that there might be any "latent de mand" for Mexican tuna products that contain tuna 
caught by setting on dolphins.  Furthermore, for the United States, the ev idence before the Panel 
                                                      
259United States' appellee's submission, para. 70. 
260United States' appellee's submission, para. 70 (referring to Panel Report, para. 7.365). 
261United States' appellee's submission, para. 79 (referring to Mexico's other appellant's submission, 
paras. 166 and 167). 
262United States' appellee's submission, para. 81. 
263United States' appellee's submission, para. 81 (referring to Panel Report, paras. 7.360, 7.364, 7.366, 
and 7.367). WT/DS381/AB/R 
Page 50  
 
indicates the strong preference of US market operato rs for tuna products that do not contain tuna 
caught in association with dolphins, and does not s upport the conclusion that market operators would 
accept such tuna products if they could bear the AIDCP label.  Therefore, it is not the measure at issue 
but market operators that are responsible for the absence of Mexican tuna products in major 
distribution channels.  Consequently, the United States  requests the Appellate Body to reject Mexico's 
claim that the Panel acted inconsistently with its  obligations under Article 11 of the DSU in assessing 
the "value" of the AIDCP label.
264 
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement  
126. The United States requests the Appellate Body to  reject Mexico's conditional appeal of the 
Panel's findings regarding Article 2.2 of the TBT Agreement .  With respect to Mexico's first ground of 
appeal, the United States argues that the Panel corr ectly interpreted and applied the term "legitimate 
objective" in Article 2.2 to the United States' do lphin protection objective.  The United States 
contends that the Panel did not formulate a "leg al test" for determining whether a measure is 
legitimate based on whether the objectives of the m easure "go against the object and purpose of the 
TBT Agreement".265  Rather, it reviewed several factors re levant to whether the second objective of 
the US measure is "legitimate".  The Panel found th at the protection of dolphins may be understood as 
intended to protect animal life or health or the environment.  When the Panel stated that the 
United States' objective "do[es] not go against the object and purpose of the TBT Agreement", it 
addressed and rejected an argument by Mexico that the measure at issue was not in fact concerned 
with protecting dolphins because it did not also prot ect other marine species.  In that respect, the 
United States points out that the phrase "do[es] not go against the object and purpose of the 
TBT Agreement" is followed by the phrase "even in  light of the existence of potentially conflicting 
objectives that could also be recognized as legitimate".266 
127. In respect of Mexico's argument that a "coe rcive and trade restrictive" objective is not 
"legitimate" within the meaning of Article 2.2 of the TBT Agreement , the United States submits that 
the Panel did not find that the objectives of the US measure include "coercion or trade restrictiveness" 
and that Mexico does not appeal these factual findings.  There is no basis for equating an objective 
aimed at discouraging or encouraging certain practi ces harmful to animal life or health with an 
                                                      
264United States' appellee's submission, para. 83. 
265United States' appellee's submission, para. 136 (referring to Mexico's other appellant's submission, 
para. 266, in turn referring to Panel Report, para. 7.443). 
266United States' appellee's submission, para. 136 (referring to Panel Report, para. 7.433).   WT/DS381/AB/R 
 Page 51 
 
 
objective that is "coercive and trade-restrictive".  This would render "illegitimate" the objective of any 
labelling scheme that seeks to inform consumers about products that reflect their preferences.267  
128. Furthermore, the United States maintains that Mexico confuses the objectives of a measure 
with how that objective is achieved.  A measure may pursue a legitimate objective but do so through 
means that restrict the marketing of certain products .  In addition, the United States contends that the 
Panel correctly pointed out that the terms of Article 2.2 suggest that some restrictions on international 
trade may arise from the preparation, adoption, and application of technical regulations that pursue 
legitimate objectives.  A measure's objective is not  illegitimate merely because the measure restricts 
trade.  Finally, while Mexico is co rrect that the measures at issue in US – Shrimp  and US – Gasoline  
were found to constitute "arbitrary and unjustifiabl e discrimination" and a "disguised restriction on 
international trade", that was not because the obj ectives of the measures at issue in those disputes 
were illegitimate. 
129. The United States requests the Appellate Body al so to reject the second claim of Mexico's 
other appeal.  The United States maintains that the Panel's approach for examining whether the 
measure at issue is more trade restrictive than necessary is consistent with Article 2.2 of the 
TBT Agreement .  Mexico's argument that a measure that does not fully meet its objective is per se  a 
breach of Article 2.2 is based on a "misreading" of  this provision.  The United States emphasizes that 
Article 2.2 does not include an obligation that technical regulations fulfil their objectives at a particular level, let al one at a "100% level".
268  In deciding what level of fulfilment a Member seeks to 
achieve, the Member may weigh a number of fact ors, such as technical feasibility, costs, and 
enforcement resources.  Article 2.2 requires technical  regulations not to restrict trade more than 
necessary to achieve legitimate obj ectives.  The preamble of the TBT Agreement , in particular the 
words "at the levels it considers appropriate" in the sixth recital, confirms that Members remain free 
to determine at what level they seek to achieve an obj ective.  The fact that a Member is not seeking to 
fulfil an objective to the utmost ex tent does not render the measure per se  more trade restrictive than 
necessary.  Therefore, the Panel was correct in proceeding to examine the alternative measure put 
forward by Mexico after it had made the finding that the United States' measure only "partially" 
achieves its objectives.269 
                                                      
267United States' appellee's submission, paras. 137 and 138. 
268United States' appellee's submission, para. 144. 
269United States' appellee's submission, para. 146. WT/DS381/AB/R 
Page 52  
 
3. Article 2.4 of the TBT Agreement  and the Effectiveness and Appropriateness 
of the AIDCP Standard as a Means to  Fulfil the United States' Objectives 
130. The United States observes, first, that Mexico has not challenged "the Panel's findings that 
support the conclusion that, inside the ETP , the AIDCP standard would be ineffective and 
inappropriate for fulfilling the U.S. objectives as they  relate to ensuring consumers are not misled or 
deceived about whether tuna products contain t una caught in a manner harmful to dolphins".270  The 
United States argues that the Panel's ultimate conc lusions should therefore remain unaltered even if 
the Appellate Body were to agree with th e arguments advanced by Mexico on appeal. 
131. The United States contends that Mexico mi scharacterizes the Panel's findings when it 
describes the "AIDCP definition of 'dolphin safe'" as the "standard at issue".271  The United States 
emphasizes that the basis for the Panel's finding th at the AIDCP resolutions constitute a standard is 
that the resolutions establish "a system" for tracki ng, certifying, and labelling tuna caught in the ETP 
by vessels fishing under the AIDCP.272  The United States contends that  the Panel did not find that the 
AIDCP "dolphin-safe" definition "was, in itself, a standard".273  In response to Mexico's argument that 
the AIDCP standard could be transposed to other fishing regions, the United States submits that "the 
standard the Panel examined by its terms c ould not readily be used in other oceans."274  This is so 
because the system for tracking, certifying, and labelling tuna caught in the ETP depends on the 
independent observer programme im plemented under the AIDCP.  The United States asserts that a 
standard cannot be effective or appropriate "if it requires a Member to base its domestic standard on 
regimes that do not actually exist".275 
132. Given that the AIDCP standard "is built upon the international dolphin conservation program 
set out in the AIDCP"276, the United States argues that it was appropriate for the Panel to inquire 
whether the AIDCP standard would be effective and appropriate for fulfilling the objectives of the 
US measure in the ocean for which it was designed, where it is applied, and where it should be at its 
most effective.277  The Panel's finding that the AIDCP standa rd is "ineffective or inappropriate" for 
achieving the United States' objectives within the E TP was a sufficient basis to conclude that the 
AIDCP standard is ineffective and inappropriate overall.278  The United States submits, therefore, that 
there was no need for the Panel "to consider the hypothetical application of the AIDCP standard 
                                                      
270United States' appellee's submission, para. 119. (original emphasis) 
271United States' appellee's submission, para. 120 (referring to, for example, Mexico's other appellant's 
submission, paras. 243 and 256). 
272United States' appellee's submission, para. 120 (referring to Panel Report, para. 7.673). 
273United States' appellee's submission, para. 120.  
274United States' appellee's submission, para. 121.  
275United States' appellee's submission, para. 121.  
276United States' appellee's submission, para. 125.  
277United States' appellee's submission, para. 126 (referring to Panel Report, para. 7.727).  
278United States' appellee's submission, para. 126.   WT/DS381/AB/R 
 Page 53 
 
 
outside of the ETP"279, and that the Panel did not act inconsis tently with Article 11 of the DSU in 
declining to do so.280  
133. The United States further contends that Mexico 's arguments concerning the appropriateness 
and effectiveness of the AIDCP standard do not a ccount for the full scope of the United States' 
objectives.281  In support of its position, the United States refers to the Appellate Body's statement in 
EC – Sardines that a relevant interna tional standard "would be effective  if it had the capacity to 
accomplish all three of these objectives [of the EC measure], and it would be appropriate  if it were 
suitable for the fulfilment of all three of these objectives".282  The United States observes that 
Mexico's argument disregards that the United Stat es' objectives pertain to both observed mortality and 
serious injury to dolphins and to unobserved mortal ity and serious injury, as well as "other adverse 
effects".283  Consequently, Mexico's argument that the AIDCP definition of "dolphin-safe" would 
fulfil one aspect of the United States' objectives is  "beside the point", as it does not account for the 
full scope of the United States' objectives.284  The United States also notes that Mexico appears to 
accept the Panel's conclusion that the AIDCP standard  would be ineffective and inappropriate with 
respect to "unobserved" mortality and serious injury to dolphins.285 
134. The United States disagrees with Mexico that the AIDCP standard would be more effective 
than the measure at issue.   The United States submits that the focu s of the inquiry under Article 2.4 is 
"whether use of a technical regulation based on the re levant international standard at issue fulfills the 
Member's legitimate objectives, rather than the ex tent to which the challenged technical regulation 
fulfills those objectives".286  The United States submits, therefore, that Mexico's arguments 
concerning the relative effectiveness of the Unite d States' measure, as compared to the AIDCP 
standard, are "inapposite".287 
4. The Panel's Exercise of Judicial Economy 
135. The United States argues that the Panel acted within its discretion to exercise judicial 
economy with respect to Mexico's claims under Articles I:1 and III:4 of the GATT 1994.  The United States asserts that Mexico has not explained why it believes that a finding of 
                                                      
279United States' appellee's submission, para. 126.  
280United States' appellee's submission, para. 127.  
281United States' appellee's submission, paras. 129-132. 
282United States' appellee's submission, para. 129 (quoting Appellate Body Report, EC – Sardines , 
para. 288). (original italics; underlining added by the United States) 
283United States' appellee's submission, para. 130 (referring to Panel Report, para. 7.484 and 
footnote 675 thereto, and para. 7.486).   
284United States' appellee's submission, para. 131. 
285United States' appellee's submission, para. 132.  
286United States' appellee's submission, para. 133. 
287United States' appellee's submission, para. 133.  WT/DS381/AB/R 
Page 54  
 
non-discrimination made under Article 2.1 of the TBT Agreement would be different if examined 
under Articles I:1 and III:4 of the GATT 1994.  The Un ited States agrees with the Panel that Mexico's 
arguments under Article 2.1 "derived directly " from its arguments under the GATT 1994, and the 
Panel could therefore properly address all of Me xico's non-discrimination claims and arguments 
through its examina tion of Article 2.1.
288   
136. The United States alleges that, in asserting that the Panel's findings under Article 2.2 of the 
TBT Agreement  failed to resolve the dispute, Mexico "m isconstrued" the Panel Report.  To the 
contrary, argues the United States, the Panel "addr essed 'all aspects of Mexico's claims, including 
non-discrimination aspects under Article 2.1, and other aspects under Article[s] 2.2 and 2.4', such that 
it was not 'necessary for it to consider separately and additionally Mexico's claims under Articles I:1 
and III:4 of the GATT 1994.'"289  With respect to Mexico's reference to the Appellate Body's findings 
in Australia – Salmon , the United States submits that the same report also stated that false judicial 
economy occurs if exercising it does not "ena ble the DSB to make sufficiently precise 
recommendations and rulings so as to allow fo r prompt compliance by a Member with those 
recommendations and rulings".290  According to the United States, Mexico does not explain how 
reconsidering those claims under Ar ticles I:1 and III:4, using the same  facts and arguments that were 
provided under Article 2.1, would lead to a diffe rent result and different DSB recommendations or 
rulings. 
137. Finally, in respect of Mexico's argument that  the alleged false judicial economy constitutes a 
violation of Article 11 of the DSU, the United States  recalls the Appellate Body 's finding that "a claim 
under [that provision] must stand by itself and be s ubstantiated with specific arguments, rather than 
merely being put forth as a subsidiary argument or cl aim in support of a claim of a panel's failure to 
construe or apply correctly a particul ar provision of a covered agreement."291  Since Mexico relies on 
the same arguments and facts, the United States c oncludes that its claim under Article 11 of the DSU 
does not "stand by itself".  Furthermore, the United States argues that the invocation of Article 11 of 
the DSU does not relieve Mexico from showing that the Panel's use of judicial economy would not allow the DSB to make recommendations and rulings that would help achieve a satisfactory resolution 
of the dispute. 
                                                      
288United States' appellee's submission, para. 107 (referring to Panel Report, paras. 7.747 and 7.748).  
289United States' appellee's submission, para. 110 (referring to Panel Report, para. 7.748).  
290United States' appellee's submission, para. 108 (referring to Appellate Body Report,   
Australia – Salmon , para. 223).  
291United States' appellee's submission, para. 111 (referring to Appellate Body Report, US – Tyres 
(China) , para. 321).  WT/DS381/AB/R 
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E. Arguments of the Third Participants 
1. Australia 
(a) Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" 
138. In relation to whether the US "dolphin-safe"  labelling provisions constitute a technical 
regulation within the meaning of Annex 1.1 of the TBT Agreement , Australia endorses the reasoning 
set out in the separate opinion, in particular, the view that private actions alone cannot make a measure de facto  mandatory.  Accordingly, Australia supports the United States' request that the 
Appellate Body reverse the Pane l's finding in this regard.  
(b) The Panel's Exercise of Judicial Economy 
139. In Australia's view, the Panel erred in exerci sing judicial economy in respect of Mexico's 
claims under Articles I:1 and III:4 of the GATT 1994.  Recalling that the aim of the dispute settlement 
system is "to secure a positive solution to a dispute"  and that the Appellate Body has emphasized that 
"[t]o provide only a partial resolution of the ma tter at issue would be false judicial economy", 
Australia considers that the Panel exercised fal se judicial economy, given the lack of consensus 
among the panelists as to whether the measure at issue constitutes a technical regulation.
292  Australia 
takes this view having regard to:  (i) the possibilit y of the Panel's finding being reversed;  (ii) the 
simultaneous and cumulative appli cation of Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of 
the TBT Agreement ;  and (iii) the differences in scope and application of each of the 
non-discrimination obligations contained in those pr ovisions.  Australia states that it would welcome 
the Appellate Body completing the analysis in re lation to Articles I:1 and III:4 should the Appellate 
Body consider that the findings of fact on the Panel record enable it to do so.293 
2. Brazil 
(a) Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" 
140. Brazil submits that the main question to be solv ed in this dispute is whether compliance with 
the labelling requirements in the US "dolphin-safe" scheme is mandatory, that is, whether the term 
"mandatory" is related to:  (i) a condition to have access to the US market;  or (ii) to binding 
                                                      
292Australia's third participant's submission, paras. 5-9 (referring to Appellate Body Report,  
Australia – Salmon , para. 223;  Appellate Body Report, Brazil – Retreaded Tyres , para. 257;  Appellate Body 
Report, Canada – Wheat Exports and Grain Imports , para. 133;  Appellate Body Report, EC – Export Subsidies 
on Sugar , para. 335;  and Appellate Body Report, Japan – Agricultural Products II , para. 111).  
293Australia's third participant's submission, paras. 9 and 10.  WT/DS381/AB/R 
Page 56  
 
requirements regarding labelling.  Brazil understands that there is no mention in the text—either in 
Annex 1.1 or Annex 1.2 to the TBT Agreement —to the effect that these requirements should be read 
in the light of a product's access to the market.  Therefore, it would seem that, if a product must 
necessarily comply with specific requirements related to its characteristics, irrespective of the market 
access conditions available for that product, these re quirements are closer to a "technical regulation" 
than to a "standard".
294  Brazil argues that the fact that labe lling requirements are:  (i) defined by 
US regulations;  (ii) enforceable by the US author ities;  and (iii) a basis for sanctions in cases where 
they are not strictly followed, demonstrates the binding and obligatory effect they have for tuna 
traders as they establish a pattern of con duct that cannot be avoided or "bypassed".295 
141. Brazil emphasizes that, if a "market access" cr iterion were to be adopted without further 
qualification, a "significant loophole" would be created in the implementation of the TBT Agreement .  
As a consequence, Members would be given space to create "voluntary" labelling schemes, which, 
albeit exclusive and distortive of the competitive e nvironment in the Members' markets, would not be 
classifiable as technical regulations and would thus  be exempt from complying with most of the 
provisions of the TBT Agreement .296  Finally, Brazil submits that, if the Appellate Body were to 
accept the reasoning developed in the separate opini on, it should interpret "market access" as meaning 
"market access in the same competitive position" as granted to domestic products.297  
(b) Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement 
142. Brazil believes that the Panel erred in its analysis  of the term "necessary" in Article 2.2 of the 
TBT Agreement .  According to Brazil, the Panel consid ered that the word "necessary" in the second 
sentence of Article 2.2 relates to the "trade-restri ctiveness" of the measure and not to the measure 
itself and its legitimate objective.298  In Brazil's view, the Panel did not give due account to the first 
sentence of Article 2.2, which connects the expr ession "unnecessary obstacles to international trade" 
with "technical regulations", and not with "trade-r estrictiveness".  Further, the word "necessary" in the 
second sentence is directly linked with "the fulfilment  of a legitimate objectiv e", which indicates that 
these terms should be analyzed together.299 
                                                      
294Brazil's third participant's submission, para. 19. 
295Brazil's third participant's submission, para. 22. 
296Brazil's third participant's s ubmission, paras. 20 and 21. 
297Brazil's third participant' s submission, para. 24.  
298Brazil's third participant's submission, para. 31 (referring to Panel Report, para. 7.460). 
299Brazil's third participant's submission, para. 31.  WT/DS381/AB/R 
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143. In addition, Brazil argues that it is of "cruci al importance" to draw on the jurisprudence 
developed under Article XX of the GATT 1994 when interpreting Article 2.2.300  Brazil notes that, in 
Brazil – Retreaded Tyres , the Appellate Body held that "[a] contribution exists when there is a 
genuine relationship of ends and means between th e objective pursued and the measure at issue" and 
that such a "contribution to the achievement of the ob jective must be material, not merely marginal or 
insignificant".301  As a result, Brazil suggests that, if the m easure adopted by a Member is not able to 
significantly contribute to the achievement of the legitimate objectives, there is no need further to 
assess the "trade-restrictiveness" criterion, as the rele vant measure would not be  in conformity with 
Article 2.2.302  In the light of the above, Brazil argues that the Panel should have inquired whether the 
measure at issue significantly contributes to the objectives of providing consumer information and of 
promoting the protection of dolphins. 
144. With regard to whether a measure is more tr ade restrictive than necessary, Brazil contends 
that once a measure has been found to genuinely contribute to the fulfilment of the legitimate 
objectives, then the analysis of its "trade-restrictiven ess" may occur.  In Brazil's view, the Panel erred 
in its interpretation of Article 2.2 of the TBT Agreement  by drawing guidance from Article 5.6 of the 
SPS Agreement .  Under the SPS Agreement , Members are faced with a "stricter policy space", such as 
requirements of a scientific justification and a risk assessment.303  In this regard, Brazil points out 
certain differences between the two agreements, su ch as the differences in scope and objectives, the 
differences in wording between Article 5.6 and Article 2.2, and the fact that the TBT Agreement  
requires no risk assessment when devi ating from international standards.304  On this basis, Brazil 
concludes that Article 5.6 does not seem to be relevant for the interpretation of Article 2.2.305 
(c) Article 2.4 of the TBT Agreement and the Notion of "International 
Standard"  
145. With respect to the question of what constitu tes an "international standard" within the 
meaning of Article 2.4 of the TBT Agreement , Brazil argues that the meaning of "international" in 
Article 2.4 should be interpreted carefully.  In particular, Brazil submits that Annex 1.4 to the 
                                                      
300Brazil's third participant's submission, para. 33. 
301Brazil's third participant's submission, para. 33 (quoting Appellate Body Report, Brazil – Retreaded 
Tyres , para. 210). 
302Brazil's third participant' s submission, para. 34.  
303Brazil's third participant's s ubmission, paras. 41 and 42. 
304Brazil argues that, in the light of the negotia ting history of the Uruguay Round, a connection 
between Article 5.6 of the SPS Agreement and Article 2.2 of the TBT Agreement  was clearly not intended by the 
Members.  It refers to a US proposal for the creation of  a footnote for Article 2.2 similar to the footnote to 
Article 5.6 of the SPS Agreement —as indicated by the letter written by th e then Director-General of the GATT 
to the Chief US Negotiator—which was eventually not accepted by th e Membership. (See Brazil's third 
participant's submission, para. 44) 
305Brazil's third participant's submission, para. 46. WT/DS381/AB/R 
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TBT Agreement , which defines "international body or system" as a "[b]ody or system whose 
membership is open to the relevant bodies of at least all Members", establishes that "Members should 
have the opportunity to accede to [international] st andardizing organizations whenever they consider 
adequate."
306  Moreover, the fact that Annex 1.4 is written in the present tense indicates that 
membership of an international body or system should be open to all WTO Members at any time, and 
especially during the process of developm ent and/or review of a standard.307  Therefore, where the 
accession of new members was possible during a sp ecific period in the past but is currently 
contingent, for example, upon the invitation and furt her acceptance by its members, an organization 
would not, in Brazil's view, seem to comply with the provisions of Annex 1 to the TBT Agreement .308  
According to Brazil, this interp retation is supported by the TBT Committee Decision, which sets out 
principles and procedures that should be observed when international standards are elaborated.  
Finally, Brazil argues that, as the WTO Members wi shing to accede to a standardizing organization 
may face political or legal difficulties in the ac cession process, a case-by-case analysis may be 
required to determine the level of "openn ess" of the organization to new members.309 
3. Canada 
(a) Article 2.1 of the TBT Agreement  and Article III:4 of the GATT 1994 
146. Canada submits that, because of the virtually  identical wording of Article 2.1 of the 
TBT Agreement  and Article III:4 of the GATT 1994, the in terpretation of the terms found in both 
provisions, in particular, the term "treatment no less favourable", as developed by the jurisprudence 
under Article III:4, should be substantially the same.310  Referring to previous Appellate Body reports, 
Canada contends that an examination of whethe r imported products are treated "less favourably" than 
like domestic products requires a consideration of whether there is detriment to imported products—
not, as the United States suggests, a determination of whether the discrimination is "based on" or "for 
reasons of" origin.311  Canada argues that, if the United States' suggestion were accepted, de facto  
discrimination claims would virtually be rem oved from the ambit of both Article III:4 of the 
GATT 1994 and Article 2.1 of the TBT Agreement . 
147. In addition, Canada submits that the "legitimacy" of a technical regulation is not relevant for 
the less favourable treatment analysis under Article 2.1 of the TBT Agreement .  If the drafters of the 
                                                      
306Brazil's third participant's submission, para. 53. 
307Brazil's third participant's submission, para. 54. 
308Brazil's third participant's submission, para. 54. 
309Brazil's third participant's submission, para. 55. 
310Canada's third participant's submission, para. 4. 
311Canada's third participant's submission, para. 6 (referring to United States' appellee's submission, 
paras. 32 and 35).  WT/DS381/AB/R 
 Page 59 
 
 
TBT Agreement  had intended that issues regarding the le gitimacy of regulatory action should factor 
into the less favourable treatment test, they could ha ve drafted the text accordingly.  Canada disagrees 
with what it describes as Mexico's a ttempt to incorporate elements of the test pertaining to Article XX 
of the GATT 1994  through the recitals of the preamble of the TBT Agreement .  Canada also opposes 
the United States' similar argument that "legitimat e regulatory action" and "legitimate objectives" are 
elements to consider in assessing whether ther e is less favourable treatment under Article 2.1.312  
However, Canada points out that Article 2.1, lik e Article III:4 of the GATT 1994, provides significant 
flexibility to WTO Members to impose measures that  distinguish between pr oducts for "legitimate" 
purposes.  This is illustrated by the Appellate Body's finding in EC – Asbestos  that an otherwise 
essentially identical product may not be "like" a nother product if that other product imposes greater 
health risks.313  
(b) The Panel's Exercise of Judicial Economy 
148. Canada supports Mexico's claim that the Pane l should have made findings under Articles I:1 
and III:4 of the GATT 1994, particularly since the relationship between Article 2.1 of the 
TBT Agreement  and Articles I:1 and III:4 of the GATT 1994 is "not settled".314  In particular, Canada 
submits that, unless the result of the application of  Article 2.1 and the corresponding provisions of the 
GATT 1994 to a particular measure will necessarily be the same, it is false judicial economy for 
panels to fail to make findings under both agreem ents.  Canada further notes that making findings on 
additional claims allows the Appellate Body to consider additional provisions and to resolve the 
dispute if it reverses other findings made by the Panel.315  In the present case, Canada considers that, 
by failing to make findings under the TBT Agreement  and the GATT 1994, the Panel risked providing 
only a partial resolution of the matter at issue.316 
(c) Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  
149. With respect to the interpretation of Article 2.2 of the TBT Agreement , Canada suggests a 
five-step test, which it considers ge nerally consistent with the panel reports in the present case, in 
US – COOL , and in US – Clove Cigarettes .317  
                                                      
312Canada's third participant's submission, paras. 7-9. 
313Canada's third participant's submission, paras. 10 and 11 (referring to Appellate Body Report,  
EC – Asbestos , paras. 114-116, 122, and 130).  
314Canada's third participant's submission, para. 15. 
315Canada's third participant's submission, para. 14 (referring to Panel Report, Canada – Dairy , 
para. 7.119;  and Appellate Body Reports, China – Auto Parts , para. 208). 
316Canada's third participant's submission, para. 15. 
317Canada's third participant's submission, para. 17. WT/DS381/AB/R 
Page 60  
 
150. According to Canada, a panel should first dete rmine if the technical regulation restricts 
international trade.  If it does not, the measure cannot violate Article 2.2.  In the present case, Canada 
argues that there does not appear to be any disp ute about whether the measure at issue restricts 
international trade.  As a second step, a panel shoul d identify the objective of the technical regulation 
by looking at the design, structure, and architecture of the measure, as well as other relevant documents. 
151. Canada argues that, as a third step, a panel should determine if the objective of the technical 
regulation is legitimate.  If it is not, the tec hnical regulation violates Article 2.2 of the TBT Agreement .  
In this regard, Canada agrees with the Panel that a proper analysis starts by  determining whether the 
objective falls within the explicitly listed objectives in  Article 2.2.  If the objective does not fall within 
the list, it is necessary to determine if it is nevert heless "legitimate" within the broader scope of that 
term as used in this provision.  Canada agrees w ith Mexico that Members do not have an unlimited 
right to adopt any policy objective and cannot establish legitimacy on the basis of a mere assertion.  It 
further notes that whether policies address a "legitima te objective" within the meaning of Article 2.2 
is a question of legal interpretati on for a panel.  Referring to the ejusdem generis  principle, Canada 
submits that a general term, such as "legitimate objec tives", followed by an illustrative list of specific 
items means that the general term is limited to the type of items specifically listed.  In order to 
distinguish non-legitimate objectives from legitima te ones, a panel should take into account the 
importance of the specifically listed objectives and the "common interests or values that are at 
stake".
318 
152. In Canada's view, as a fourth step, a panel shoul d determine if the technical regulation fulfils 
the legitimate objective.  If it does not, the techni cal regulation violates Article 2.2 and it is not 
necessary to consider alternative less trade-restri ctive measures.  Canada observes that, although the 
Panel did not address this issue as an independent el ement, it did in essence perform this analysis and 
concluded that the measure "can only partially  ensure that consumers are informed about whether 
tuna was caught by using a method that adversely affects dolphins".319  For Canada, the Panel's 
finding that consumers "could be misled into thi nking that a tuna product did not involve injury or 
killing of a dolphin when this may in fact have been the case" may be the same as a finding that the 
challenged measure does not meet the fourth step of the test.320  Alternatively, the Appellate Body 
may interpret the Panel's finding as a determination th at the measure meets this fourth step, but that 
                                                      
318Canada's third participant's submission, para. 26 (referring to Appellate Body Report,  
Korea – Various Measures on Beef , para. 162). 
319Canada's third participant's submission, para. 27 (quoting Panel Report, para. 7.563). 
320Canada's third participant's submission, paras. 27 and 28 (quoting Panel Report, para. 7.564).  WT/DS381/AB/R 
 Page 61 
 
 
the level of fulfilment is limited.  If so, Canada ar gues that the level of fulfilment of the objective is a 
factor to consider in assessing the alternative m easure proposed by Mexico in the next step.321 
153. As a last step, Canada submits that a pane l should assess alternativ e measures that would 
fulfil the legitimate objective in a less trade-r estrictive way, "taking account of the risks non-
fulfilment would create".  If there are such altern ative measures, the technical regulation violates 
Article 2.2.  Canada emphasizes that what the text requires to be considered are the risks that would 
arise from a failure to fulfil the legitimate objective and not the "risks of non-fulfilment" in the sense 
of an assessment of the likelihood that a measure will  not fulfil its objective.  Canada alleges that the 
panels in this case and in US – Clove Cigarettes  appear to have equated the two terms.322  
Furthermore, although not explicitly envisaged by Article 2.2, the extent of fulfilment of the objective by both the challenged measure and the proposed alternative measure should be taken into account.  
Similarly, the harm that would arise from the failure  to fulfil an objective should be considered with 
the "trade-restrictiveness" of an alternative measu re.  Finally, Canada argues that a reduction of 
potential costs on domestic products is not a factor to consider in balanc ing a challenged measure 
against an alternative measure. 
4. European Union 
(a) Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation"  
154. Recalling the Appellate Body's finding in EC – Asbestos  that the term "mandatory" suggests 
that a measure regulates the characteristics of a pr oduct "in a binding or compulsory fashion" with the 
"effect of prescribing or imposing" one or more of them, the European Union argues that the mere fact 
that the US "dolphin-safe" labelling scheme is contained in a law is not sufficient to conclude that it is 
"binding or compulsory".323  Such an argument would "formalistically" focus on the binding nature of 
the document containing the labelling scheme and would disregard the substance of the product 
characteristics, that is, that the labelling requireme nts leave economic operators the choice of whether 
they want to market their products with or without the label.324  Additionally, the US measure cannot 
be considered "binding or compulsory" simply because it establishes conditions or requirements for 
the use of the "dolphin-safe" label, as such a r eading would conflate the meaning of the terms 
"mandatory" and "requirement" and thus leave no space for the voluntary labelling requirements 
                                                      
321Canada's third participant's submission, para. 29. 
322Canada's third participant's submission, para. 31 (ref erring to Panel Report, para. 7.467;  and Panel 
Report, US – Clove Cigarettes , para. 7.424). 
323European Union's third participant's submission, paras. 17 and 18 (referring to Appellate Body 
Report, EC – Asbestos , para. 68). 
324European Union's third participant's submission, para. 18. WT/DS381/AB/R 
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addressed in Annex 1.2 to the TBT Agreement .
325  In addition, the European Union submits that the 
fact that compliance with the conditions of th e US "dolphin-safe" labelling scheme is legally 
enforceable does not appear to be sufficient either to render compliance "mandatory".  As the separate 
opinion points out, legally binding norms, such as consumer protection or fair competition laws, 
which compel producers to fulfil promises concerning (voluntary) standards, should not "transform" such standards into mandatory technical regulations.
326 
155. Although the European Union disagrees that the "e xclusivity" of a labelling scheme is always 
the dividing line between manda tory and voluntary schemes, it accepts that there may be 
circumstances in which this factor could contribu te to the mandatory nature of a labelling scheme.327  
However, in the European Union's view, the Panel did not properly explain how the "exclusivity" of a 
labelling scheme makes compliance therewith "binding or compulsory".  First, the Panel's assertion 
that "the measures prescribe 'in a negative form ' … that no tuna product may be labelled dolphin-safe 
or otherwise refer to dolphins, porpoises or marine mammals if it does not meet the conditions set out in the measures" does not address why this situation makes compliance mandatory.
328  T h i s  i s  s o  
because economic operators remain free to market  tuna without any labels relating to their 
"dolphin-safety".  Second, contrary to the Pane l's position, the European Union considers that  
EC – Sardines  provides no support for the Panel's "exclusivity" argument.  In EC – Sardines , the 
imported product could not be sold as preserve d sardines unless it complied with the labelling 
requirements, whereas in the present case tuna prod ucts may be sold as "tuna" even if they do not 
comply with the "dolphin-safe" labelling requirements.329 
(b) Consistency of the Measure at Issue with Article 2.1 of the 
TBT Agreement  
156. The European Union notes that, in order to di stinguish between the exercise of regulatory 
autonomy that is acceptable and that which is not, one  must look at the effects of a measure as well as 
its aim, which includes an enquiry into the design of the measure.  This further entails an examination 
of whether or not the measure has some other pur pose (as opposed to discriminating against imports), 
whether or not that purpose is "justified" or "l egitimate", whether the measure reasonably contributes 
to achieving that objective (as opposed to being "arb itrary"), and whether or not there is another 
measure available equally capable of contributing to the objective but "less restrictive of trade".330  
Further, the European Union submits that numerous provisions of the covered agreements express this 
                                                      
325European Union's third participant's submission, para. 19. 
326European Union's third participant's submission, para. 20. 
327European Union's third participant's submission, para. 22. 
328European Union's third participant's submission, para. 23 (quoting Panel Report, para. 7.131). 
329European Union's third participant's submission, para. 23.  
330European Union's third participant's submission, paras. 53-56.  WT/DS381/AB/R 
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basic approach, most obviously the chapeau of Article XX of the GATT 1994 and in the "necessity" 
language of that article, as well as Article III:4,  and that these GATT 1994 provisions are "re-cast" in 
Articles 2.1 and 2.2 of the TBT Agreement .331 
157. Regarding the question of an "in fact" clai m of a national treatment violation, the 
European Union notes that the outcome depends mostly on what is meant by "'factors or 
circumstances' related to the foreign origin of the pr oduct".  It also depends on whether this concept is 
to be construed relatively narrowly or relatively br oadly, and whether any countervailing explanations 
are to be considered only in case such a "relation"  is identified, or rather at the same time as 
considering whether there is any "relation" at all.   The European Union argues for a broader concept, 
including, for example, consumer preferences a nd/or regulations in the exporting country, but 
highlights that any countervailing expl anations should be considered at  the same time as considering 
whether or not there is any such "relation" with  foreign origin.  Such an approach would be 
sufficiently flexible and broadly similar to the approach under the GATT 1994.332  Concerning the 
present case, the European Union is of the view that the Panel carefully considered all of the evidence 
before it and made an objective assessment pursuant to Article 11 of the DSU.333 
(c) Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  
158. The European Union agrees with the United Stat es that Mexico had the initial burden of proof 
with respect to all aspects of its claim under Article 2.2 of the TBT Agreement .  Furthermore, the 
European Union stresses the importance of the way in  which the legitimate objective is framed (either 
more broadly or more narrowly) for the analysis unde r this provision.  The United States' approach of 
narrowing the objective so as to correspond to th e subject matter of the complaint ("setting on 
dolphins") is, in the European Union's view, somewhat  "mechanistic".  It would not leave much room 
for the balanced consideration of all the facts, su ch as, for example, why the circumstances of death 
might be relevant to circumscribe the objective itself if, presumably, the United States and its 
consumers really do care about dolphin mortality.334  As to the question of whether the costs 
associated with a measure should play a role in the assessment under Article 2.2, the European Union 
submits that it may be relevant to examine the bala nce between the objective and the costs, as well as 
the manner in which the costs are distributed amon gst different WTO Members, particularly in the 
                                                      
331European Union's third participant's submission, para. 60. 
332European Union's third participant's submission, paras. 62-66.  The European Union recognizes, 
however, that such an approach would result in a conceptual overlap between an in fact assessment under 
Article 2.1 of the TBT Agreement , and an assessment under Article 2.2 of the TBT Agreement , taking into 
account the observation th at, in an in fact assessment, no facts are per se  excluded from the scope of the 
adjudicator's review. 
333European Union's third participant's submission, para. 67. 
334European Union's third participant's submission, para. 76. WT/DS381/AB/R 
Page 64  
 
long-term.
335  Finally, the European Union agrees with the United States that the relative risk to 
dolphins inside and outside the ETP w ould be relevant to the assessment.336 
(d) Article 2.4 of the TBT Agreement and the Notion of "International 
Standard" 
159. The European Union submits that the dete rmination of which documents qualify as 
"international standards" must be undertaken with  great care, since such standards trigger the 
obligation in Article 2.4 of the TBT Agreement .  As regards the requirement of "recognition" of an 
entity as an international standardizing organization, the European Union argues that this relates to the 
standardization activities of a body and that it would be circular to infer "recognition" from 
"participation" by countries in a body's standard izing activities as this would devoid the "recognition" 
element of any meaning.337 
160. In addition, the European Union argues that "recognition" by only one country regarding only 
one document should not qualify as recognition that the relevant entity is an international standards 
organization.  Recognition of standardization ac tivity should depend on those who establish and use 
standards, that is, the market partic ipants, and not governments or courts.338  The European Union 
advances additional factors, which, in its view, i ndicate that the AIDCP may not be an entity with 
recognized activities in standardization.  The Europ ean Union points out that the issuance of standards 
is not mentioned as one of the objectives of the AIDC P and that there is no indication that the AIDCP 
has accepted the Code of Good Practice for the Prepar ation, Adoption and Appli cation of Standards in 
Annex 3 to the TBT Agreement , which would have indicated  that the AIDCP sees itself as a 
standardizing body.  Finally, the European Union doubts that the AIDCP has the necessary 
institutional structure to qualify as an "organiza tion" and is sufficiently "open" to qualify as 
"international" for the purposes of the TBT Agreement . 
5. Japan 
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical 
Regulation" 
161. Japan agrees with the Panel's analysis concer ning the mandatory nature of the measure at 
issue.  In Japan's view, no single factor of the three listed by the Panel should be decisive on its own.  
Japan submits, however, that all three considered together should be given considerable weight in 
determining whether a measure is a technical regula tion that regulates the "characteristics of products" 
                                                      
335European Union's third participant's submission, para. 76. 
336European Union's third participant's submission, para. 77. 
337European Union's third participant's submission, paras. 85-87.  
338European Union's third participant's submission, para. 88.  WT/DS381/AB/R 
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in a binding or compulsory  fashion.339  According to Japan, the distinguishing characteristic of the 
US measure is that it privileges and enforces a singl e definition of "dolphin-safety" and excludes other 
definitions, thereby restricting the choice to use indications on products regardless of whether that 
tuna was actually harvested in a "dolphin-safe" manner.340  In Japan's view, if the measure permitted 
alternative descriptive labels addressing the "dolphin- safety" of tuna, then it would most likely not be 
mandatory because products not satisfying one descrip tion could indicate their product characteristics 
or quality appropriately.341 
162. Japan suggests that the reports of the panels in EC – Sardines  and EC – Trademarks and 
Geographical Indications (Australia)  should guide the Appellate Body's analysis in this case.  In the 
former case, the European Communities argued that its regulation did not bar the sale of the product 
at issue in the European Communities at all, unless labelled as "preserved sardines".  In the latter  case, 
the regulation at issue did not bar the importation or sale of a product as such, but simply prohibited 
the marketing of certain products in the EC if the pr oduct used a particular label.  Japan notes that, in 
this dispute, the measure at issue similarly bars marketing of tuna products that bear a 
non-conforming "dolphin-safe" label suggesting that  it is therefore a "technical regulation" for 
purposes of the TBT Agreement .342 
163. In Japan's opinion, the Appellate Body should not conclude that a la belling requirement can 
only be a technical regulation if the requirement manda tes that a label must be used in order for the 
good to be sold on the market.  This reading woul d be "too narrow", inconsistent with prior cases, and 
would leave many potentially trade-distorting measures outside the scope of the TBT Agreement .343 
(b) Article 2.4 of the TBT Agreement  and the Notion of "International 
Standard"  
164. With respect to the Panel's finding regarding Article 2.4 of the TBT Agreement , Japan is of the 
view that "no purported international standard shou ld be recognized as such" if the six principles set 
out in the TBT Committee Decision were disregarded in its elaboration.344 
165. Japan agrees with the United St ates that the Panel was incorrect in finding that the AIDCP 
definition is an "international standard" within th e meaning of Article 2.4.  In particular, Japan 
disagrees that the AIDCP is "international" as it is not "open" in the sense of the TBT Committee 
                                                      
339Japan's third participant's submission, para. 13 (referring to Appellate Body Report, EC – Asbestos , 
para. 69). 
340Japan's third participant's submission, para. 14. 
341Japan's third participant's submission, para. 19.  
342Japan's third participant's submission, paras. 15-18. 
343Japan's third participant's submission, para. 20.  
344Japan's third participant's submission, para. 23. WT/DS381/AB/R 
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Decision, which calls for "openness without discrimina tion with respect to participation at the policy 
development level and at every stage of standards development".
345  Japan requests the 
Appellate Body to consider the relevant facts and carefully assess whether an organization with 
participation as narrow as the AIDCP should be de emed to be "open" within the meaning of 
Annex 1.4 to the TBT Agreement .346 
6. New Zealand 
(a) Annex 1.1 to the TBT Agreement  and the Definition of "Technical 
Regulation" 
166. In New Zealand's view, the Panel erred in its an alysis of whether the US measure constitutes a 
"technical regulation" within the meaning of Annex 1.1 of the TBT Agreement .  According to 
New Zealand, the Panel's focus should have been on whether there was a mandatory requirement for 
tuna producers to label their product as "dolphin-safe " to be sold in the US market, rather than 
whether the labelling criteria were binding in nature.347  
167. New Zealand submits that the Appellate Body should first consider whether there is a de jure  
mandatory requirement for tuna producers to label their product as "dolphin-safe".  If it determines 
that no such requirement exists and that the use of the label is only voluntary, the second step should 
be to consider whether there are facts and circum stances that imply that the criteria for use of the 
"dolphin-safe" label could nevertheless be considered a de facto  mandatory requirement to label, and 
thus constitute a technical regulation.348  According to New Zealand, a conclusion that a measure is 
de facto mandatory must be clearly supported by the facts of  the case so as to maintain the distinction 
between technical regulations and standards in the TBT Agreement .  New Zealand notes, in this 
regard, that the Appellate Body may wish to consid er the relevance of the fact that the US measure 
appears to prohibit the use of other terms or statements relating to "dolphin-safety".349 
(b) Consistency of the Measure at Issue with Article 2.2 of the 
TBT Agreement  
168. In New Zealand's view, the Panel appropriately  considered whether the measure fell within 
any of the legitimate objectives listed under Article 2.2.   While agreeing with the Panel's finding that 
Article 2.2 provides a non-exhaustive list of legitim ate objectives, New Zealan d argues that the phrase 
"legitimate objectives" also implies that some object ives are illegitimate.  Therefore, an objective not 
                                                      
345Japan's third participant's submission, para. 26. 
346Japan's third participant's submission, para. 27. 
347New Zealand's third participant's submission, para. 8. 
348New Zealand's third participant's submission, para. 9. 
349New Zealand's third participant's submission, para. 10.  WT/DS381/AB/R 
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included in the illustrative list (such as "consumer in formation") should only be considered legitimate 
where the regulating Member is able to provide clear and compelling evidence as to its legitimacy.350  
169. New Zealand disagrees with the Panel's conclusion that the consumer information objective 
of the US measure fits within the broader goal of preventing deceptive practices.  New Zealand notes that these objectives are not interchangeable and that, from a systemic perspective, there is a 
fundamental distinction between the objectives of  consumer information and the prevention of 
deceptive practices.  A Member regulating to pr event deceptive practices (which is specifically 
recognized as a legitimate objective in Article 2.2) onl y has to show that its measure is in fact aimed 
at preventing deceptive practices.  Conversely, a Me mber regulating to provide  consumer information 
must first demonstrate that consumer information is  indeed a legitimate objec tive in the circumstances 
of the case.  When determining whether "consumer information" is a legitimate objective, a panel 
should take the nature of the objectives in th e illustrative list in Article 2.2 into account.
351 
(c) Article 2.4 of the TBT Agreement  and the Notion of "International 
Standard" 
170. New Zealand supports the Panel's appro ach to ascertaining whether the AIDCP 
"dolphin-safe" standard is an "international standard" for the purposes of Article 2.4 of the 
TBT Agreement .  This approach allows for a careful consid eration of any standard claimed to be an 
international standard and should ensure that an inappropriate burden is not imposed on regulating 
Members with respect to the use of international st andards.  Moreover, New Zealand agrees with the 
Panel's approach to determining whether an organi zation is an international standardizing/standards 
organization.  It also endorses the Panel's exam ination of whether standardizing activities are 
"recognized activities" carried out by the organization,  and whether membership of an organization is 
open on a non-discriminatory basis to relevant bodies of at least all WTO Members.352 
III. Issues Raised on Appeal 
171. The following issues are raised on appeal: 
(a) whether the Panel erred in characterizing the measure at issue as a "technical 
regulation" within the meaning of Annex 1.1 to the TBT Agreement ; 
                                                      
350New Zealand's third participant's submission, paras. 17 and 18.  
351New Zealand's third participant's submission, paras. 20 and 21.  
352New Zealand's third participant's submission, paras. 12 and 13 (referring to Panel Report, 
paras. 7.685 and 7.691). WT/DS381/AB/R 
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(b) whether the Panel erred in finding, in pa ragraphs 7.374 and 8.1(a) of the Panel 
Report, that the US "dolphin-safe" labelli ng provisions are not inconsistent with 
Article 2.1 of the TBT Agreement , and in particular:  
(i) whether the Panel erred in its interp retation and application of the phrase 
"treatment no less favourable" in Article 2.1 of the TBT Agreement ;  and 
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in its 
evaluation of Mexico's claim under Article 2.1 of the TBT Agreement . 
(c) whether the Panel erred in law, or acted inc onsistently with Article 11 of the DSU, in 
finding, in paragraph 7.620 of the Panel Report, that the measure at issue is more trade restrictive than necessary to fulfil th e United States' legitimate objectives, taking 
account of the risks non-fulfilment would creat e, and that, therefore, the measure at 
issue is inconsistent with Article 2.2 of the TBT Agreement ; 
(d) if the Appellate Body reverses the Panel's finding that the measure at issue is 
inconsistent with Article 2.2 of the TBT Agreement , then whether the Panel erred in 
finding that the United States' objective of "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" is a legitimate objective within the meaning of that provision; 
(e) if the Appellate Body reverses the Panel's finding that the measure at issue is 
inconsistent with Article 2.2 of the TBT Agreement  and rejects the ground of appeal 
in item (d) above, then whether the measure at issue is inconsistent with Article 2.2 of 
the TBT Agreement  based on the Panel's finding that the measure did not entirely 
fulfil its objectives; 
(f) whether the Panel erred in finding, in pa ragraph 7.707 of the Panel Report, that the 
AIDCP "dolphin-safe definition and certifica tion" constitute a "relevant international 
standard" within the meaning of Article 2.4 of the TBT Agreement ;  and in finding, in 
paragraph 7.740 of the Panel Report, that Mexico had failed to demonstrate that the 
AIDCP standard is an effective and appropr iate means to fulfil the United States' 
objectives "at the United States' chosen level of protection";  and  WT/DS381/AB/R 
 Page 69 
 
 
(g) whether the Panel acted inconsistently w ith Article 11 of the DSU in deciding to 
exercise judicial economy with respect to  Mexico's claims under Articles I:1 and III:4 
of the GATT 1994. 
IV. Background and Overview of the Measure at Issue 
172. This dispute arises out of a challenge brought by Mexico against certain legal instruments of 
the United States establishing the conditions for the u se of a "dolphin-safe" label on tuna products.  In 
particular, Mexico identified the following legal in struments as the object of its challenge:  the 
United States Code , Title 16, Section 1385 (the "Dolphin Pr otection Consumer Information Act" or 
"DPCIA");  the United States Code of Federal Regulations , Title 50, Section 216.91 and 
Section 216.92 (the "implementing regulations");  and a ruling by a US federal appeals court in Earth 
Island Institute v. Hogarth353 (the "Hogarth ruling").  Taken t ogether, the DPCIA, the implementing 
regulations, and the Hogarth ruling set out the requirements for when tuna products sold in the 
United States may be labelled as "dolphin-safe".354  More specifically, they condition eligibility for a 
"dolphin-safe" label upon certain documentary ev idence that varies depending on the area where the 
tuna contained in the tuna product is harvested a nd the type of vessel and fishing method by which it 
is harvested.  In particular, tuna caught by "setting on"355 dolphins is currently not eligible for a 
"dolphin-safe" label in the United States, regardless of whether this fishing method is used inside or 
outside the Eastern Tropical Pacific Ocean (the "ETP").356  The DPCIA and the implementing 
regulations also prohibit any refe rence to dolphins, porpoises, or ma rine mammals on the label of a 
tuna product if the tuna contained in the product does not comply with the labelling conditions spelled 
out in the DPCIA.  However, they do not make the use of a "dolphin-safe" label obligatory for the 
importation or sale of tuna products in the United States.  We refe r to the legal instruments challenged 
                                                      
353United States Court of Appeals for the Ninth Circuit, Earth Island Institute v. Hogarth , 494 F.3d 757 
(9th Cir. 2007) (Panel Exhibit MEX-31). 
354Panel Report, para. 7.24. 
355The fishing technique of "setting on" dolphins takes advantage of the fact that tuna tend to swim 
beneath schools of dolphins in the ETP.  The fishing method involves chasing and encircling the dolphins with a 
purse seine net in order to catch the tuna swimming beneath the dolphins. 
356The ETP, as defined under US law, extends westward from the west coast of the Americas to include 
most of the tropical Pacific east of the Hawaiian Islands , and includes high seas areas as well as the exclusive 
economic zones and territorial seas of Chile, Colombia, Costa Rica, Ecuador, El Sa lvador, France (due to the 
French overseas possession, Clippert on Island), Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and 
the United States.  More specifically, the DPCIA define s the ETP as "the area of the Pacific Ocean bounded by 
40 degrees north latitude, 40 degrees south latitude, 160 degrees west longitude, and the western coastlines of 
North, Central, and South America." (DPCIA, subsection 1385(c)(2)) WT/DS381/AB/R 
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by Mexico collectively as the "measure at issue" , the "US measure", or "the US 'dolphin-safe' 
labelling provisions" for ease of reference and uniformity with the Panel.
357  
173. With respect to the conditions for access to a "dolphin-safe" label, the DPCIA distinguishes 
between five different fisheries, namely:  (1) large358 purse seine vessels in the ETP;  (2) purse seine 
vessels in any ocean region outside of the ETP wher e the US Secretary of Commerce has determined 
that there is a regular and significant tuna-dolphin association similar to that found in the ETP;  
(3) purse seine vessels in any other ocean region out side the ETP;  (4) non-purse seine vessels in any 
ocean area where the US Secretary of Commerce has determined that there is a regular and significant 
mortality or serious injury of dolphins;  and (5) v essels engaged in driftnet fishing on the high seas.  
At the time of the panel request in this dispute, the US Secretary of Commerce had not identified any 
fisheries as having a regular and significant t una-dolphin association or as having a regular and 
significant mortality or serious injury of dolphins.359  
174. Depending on the fishery in which the tuna contained in a tuna product is harvested, the 
DPCIA requires either one or both of the following certifications as a condition for a "dolphin-safe" 
label:  (1) a certification that no purse seine net was intentionally deployed on or used to encircle 
dolphins during the particular voyage on which th e tuna were caught;  (2) a certification that no 
dolphins were killed or seriously injured in the sets in which the tuna were caught.  The DPCIA 
further prescribes whether these certifications are to be  provided:  (1) by the captain of the vessel;  or 
(2) by the captain of the vessel and an obser ver.  The DPCIA provides that access to the 
"dolphin-safe" label is prohibited for tuna products containing tuna fished with driftnets on the high 
seas. 
175. Under the DPCIA, the type of certification required for tuna products containing tuna 
harvested by large purse seine vessels in the ETP was subject to a finding by the US Secretary of 
Commerce on whether the intentional deployment on or encirclement of dolphins with purse seine 
                                                      
357The Panel treated the various interrelated legal inst ruments identified by Mexico as the basis for its 
claims in these proceedings as a si ngle measure for the purposes of its findings.  The Panel reasoned that 
"together and collectively, the various provisions in the different legal instruments identified by Mexico, 
including the Hogarth ruling, set out the terms of the US 'dolphin-safe' labelling scheme, as currently applied by the United States."  The Panel also noted that "the United States [did] not object to Me xico's request to consider 
the various instruments together and that [the United States had] articulated its defence in these proceedings on 
the basis of the measures taken together." (See Panel Re port, para. 7.24)  The legal nature of the measure at 
issue is one of the issues raised in this appeal, and, like the Panel, we use the term "US 'dolphin-safe' labelling 
provisions" without prejudice to the substantive issue of whether the measure at issue constitutes a technical regulation within the meaning of Annex 1.1 to the TBT Agreement . 
358Pursuant to subsection 1385(d)(2)(A) of the DPCIA, the labelling conditions do not have to be met 
by vessels that are "of a type and size that the Secret ary has determined, consistent with the International 
Dolphin Conservation Program, is not capable of deploying its purse seine nets on or to encircle dolphins".  This 
limitation applies only to the ETP. 
359Panel Report, paras. 2.23, 7.488, and 7.534.  WT/DS381/AB/R 
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nets is having a significant adverse impact on any depleted dolphin stock in the ETP.360  In the event 
of a negative finding, a certification that "no dolphins  were killed or seriously injured during the sets 
in which the tuna were caught" would have been suffi cient in order to make the tuna products eligible 
for a "dolphin-safe" label.  In the event of a positive finding, an additional certification that "no tuna were caught on the trip in which such tuna were  harvested using a purse seine net intentionally 
deployed on or to encircle dolphi ns" would have been required. 
176. The US Secretary of Commerce found that "the in tentional deployment on or encirclement of 
dolphins with purse seine nets [was] not having a significant adverse effect on any depleted dolphin stock in the ETP."
361  However, this finding was overturned through court rulings, on the basis that the 
Secretary failed to conduct statutorily mandated studi es and that the best ava ilable scientific evidence 
did not support the Secretary's finding.362  The United States explained to the Panel that, as a result of 
these rulings, "the findings necessary for the subsecti on 1385(h)(1) certification to apply do not exist, 
and therefore the applicable certification for tuna caught using purse seine nets in the ETP remains the 
one set out in subsection 1385(h)(2)."363  The Panel accepted this characterization of the current 
situation under US law.  Accordingly, it found that: 
… under the DPCIA provisions that are currently applicable, tuna 
harvested in the ETP by a large v essel using purse-seine nets may be 
labelled dolphin-safe if the captain and an observer approved by the IDCP [the "International Dolphi n Conservation Program"] certify 
that no dolphins were killed or seriously injured  during the sets in 
which the tuna were caught and that no purse seine net was 
intentionally deployed on or used to encircle dolphins  during the 
same fishing trip.364 (original emphasis) 
177. Subsection 1385(d)(3) of the DPCIA provides for the development of an official 
"dolphin-safe" label and stipulates conditions for the use of alternative "dolphin-safe" labels.  Either 
the official label or an alternative one may be used, provided that the conditions are met.365  In 
response to questioning by the Panel, the Unite d States clarified that the requirements for the 
alternative label apply in addition to the conditions for the official label.  The Panel accepted the 
United States' characterization of the law.366  
                                                      
360DPCIA, subsection 1385(h).  
361Panel Report, para. 2.18 (quoting US District Court for the Northern District of California,  Earth 
Island Institute v. Evans , (9 August 2004) (Panel Exhibit MEX-29), p. 4). 
362Earth Island Institute v. Evans , supra , footnote 361, affirmed by Earth Island Institute v. Hogarth , 
supra , footnote 353. 
363Panel Report, para. 2.19 (quoting United States' fi rst written submission to the Panel, para. 22). 
364Panel Report, para. 2.20.  
365Panel Report, paras. 2.28 and 2.29. 
366Panel Report, paras. 2.30 and 7.536 (referring to United States' response to Panel Question 8;  and 
United States' second written submission to the Panel, paras. 40 and 41).  WT/DS381/AB/R 
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V. Legal Characterization of the Measure at Issue 
178. Before the Panel, Mexico challenged the c onsistency of the US "dolphin-safe" labelling 
provisions with Articles I:1 and III:4 of  the GATT 1994 and Article 2 of the TBT Agreement .  Before 
proceeding to examine the substance of Mexico's clai ms, the Panel stated that it would determine, as a 
threshold matter, whether, as contended by Mexi co, the measure at issue constitutes a "technical 
regulation" to which Article 2 of the TBT Agreement  applies.
367 
179. In its analysis of this question, the Panel applied what it described as a "three-tier test"368 and 
made three intermediate findings.  First, the Pane l found that the measure at issue applies to an 
"identifiable" product or group of products, namely, "tuna products" as defined in the DPCIA and 
Section 216.3 of Title 50 of the United States Code of Federal Regulations .369  Second, the Panel 
found that the measure at issue sets out the cond itions under which tuna pr oducts may be labelled 
"dolphin-safe" and that it thus establishes "labelli ng requirements, as they apply to a product, process 
or production method" within the meaning of Annex 1.1 to the TBT Agreement .370  Third, the Panel 
found that the measure at issue establishes "lab elling requirements, compliance with which is 
mandatory".371  The United States does not contest the first two intermediate findings made by the 
Panel.  Instead, its appeal focuses on the Panel's finding that the measure at issue establishes labelling 
requirements "with which compliance is mandatory" and the Panel's conclusion that the US measure 
therefore constitutes a "technical regulati on" within the meaning of Annex 1.1. 
180. Based on its review of the measure at issue, the Panel found, inter alia , that, in order for tuna 
products to be exported from or offere d for sale in the United States with  a "dolphin-safe"  
designation, such products must comply with the requirements set out in the DPCIA.372  The Panel 
added that the US "dolphin-safe" labelling provis ions are subject to specific enforcement measures373;  
and that they prescribe in a binding manner the cond itions for the use of certain terms on labels for 
tuna products, on the basis of compliance with the underlying standard.374  The Panel further 
emphasized that the US "dolphin-safe" labelling prov isions are "legally enforceable and binding under 
US law" and were "issued by the gove rnment and include legal sanctions".375  Furthermore, the Panel 
remarked that the challenged measu re prescribes "certain requirements that must be complied with in 
order to make any claim relating to the manner in which the tuna contained in [a] tuna product was 
                                                      
367Panel Report, para. 7.49. 
368Panel Report, para. 7.53. 
369Panel Report, para. 7.62. 
370Panel Report, para. 7.78. 
371Panel Report, para. 7.145. 
372Panel Report, para. 7.124. 
373Panel Report, para. 7.127. 
374Panel Report, para. 7.132. 
375Panel Report, para. 7.142.  WT/DS381/AB/R 
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caught, in relation to dolphins" and regulates "not onl y the use of the particular label at issue, but 
more broadly the use of a range of terms for the offering for sale of tuna products, beyond even the 
specific 'dolphin-safe' appellation".376  The Panel added that the measure at issue prohibits "any 
statement relating to dolphins, porpoises or marine  [mammals], whether misleading or otherwise, if 
the conditions set out in the regulation are not met" and leaves no other possibility to inform 
consumers about the "dolphin-safety" of tuna products , except to meet the specific requirements of the 
measure.377  The Panel considered therefore that, effect ively, the specific requirements of the measure 
at issue are the only option available to address "dol phin-safety" and that, through access to the label, 
the US measure regulates "the 'dolphin-safe' stat us of tuna products in a binding and exclusive 
manner".378  On this basis, the Panel concluded that  the US "dolphin-safe" labelling provisions 
constitute a "technical regulation" subject to the disciplines of Article 2 of the TBT Agreement .379 
181. The United States takes issue with several asp ects of the Panel's analysis, alleging in 
particular that the Panel erred in its interp retation of the word "mandatory" by making it 
indistinguishable from the term "requirement".380  In the United States' view, a labelling requirement 
is "mandatory" within the meaning of Annex 1.1 if th ere is a requirement to use a particular label in 
order to place a product for sale on the market.381  The United States submits that the Panel erred in 
relying on the fact that the measure at issue is legally enforceable and binding under US law, since 
enforceability, as such, does not distinguish  technical regulations from standards.382  T h e  
United States also alleges that the Panel erred by re lying on a criterion of "exclusivity" to find that a 
standard becomes a technical regulation if it is "the only standard" availa ble to address an issue.383  
The United States argues in this regard that "[n]othing in Annex 1.1 provides that a technical regulation must be exclusive, and nothing in Annex 1.2 provides that a standard cannot be 
exclusive."
384 
                                                      
376Panel Report, para. 7.143.  
377Panel Report, paras. 7.143 and 7.144. 
378Panel Report, para. 7.144.  
379In a separate opinion, one member of the Panel found that compliance with the "dolphin-safe" 
labelling provisions is not "mandatory" and concluded, therefore, that the US m easure does not constitute a 
"technical regulation" within the meaning of Annex 1.1 to the TBT Agreement .  According to that panelist, a 
labelling scheme is "mandatory" when the use of a ce rtain label is compulsory to access the market and 
"voluntary" when products can be marketed with or without the label.  Notwithstanding this conclusion, the 
panelist in question considered it appr opriate to pursue the analysis of the measure at issue as a "technical 
regulation" and agreed with the remainder of the Panel's findings. (Panel Report, para. 7.188) 
380United States' appellant's submission, heading III.B.1. 
381United States' appellant's submission, para. 32 (referring to Panel Report, para. 7.150). 
382United States' appellant's submission, para. 51. 
383United States' appellant's submission, para. 65 (ref erring to Panel Report, paras. 7.143 and 7.144). 
384United States' appellant's submission, para. 66. WT/DS381/AB/R 
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182. Mexico disagrees with the United States that th e Panel's interpretation of "mandatory" is 
indistinguishable from the term "requirements".
385  Mexico maintains that what makes the 
US "dolphin-safe" labelling provisions mandatory is not whether a label is de jure required in order to 
sell tuna products in the market, but the fact that th ey restrict retailers, consumers, and producers to a 
single choice for labelling tuna products as "dolphin-safe".386  Mexico contends that the prohibition of 
using a label "based on any standard other than the U.S. standard is … separate from and in addition 
to the 'labelling requirements'".387  It is this prohibition that, in Mexico's view, "transforms what 
would otherwise be a standard into a technical regulation".388  In response to the United States' 
argument that "enforceability" as such does not dis tinguish technical regulations from standards, 
Mexico contends that the United States confuses th e enforcement of the "labelling requirements" with 
the enforcement of the single "dolphin-safe" definiti on.  In Mexico's view, it was the separate and 
distinct prohibition of other labels that was the focus of the Panel's analysis with respect to 
"enforceability".389 
A. Interpretation of Annex 1.1 to the TBT Agreement 
183. Before we review the definition of "technical  regulation" contained in Annex 1.1 to the 
TBT Agreement , we recall that the Appellate Body has previously addressed the meaning of that 
provision in EC – Asbestos  and EC – Sardines .  In the latter case, the Appellate Body held that, in 
order to fall under the definition of "technical regul ation", a document must apply to an identifiable 
product or group of products, it must lay down one or more characteristics of the product, and "compliance with the product characteristics must be mandatory".
390 
184. Article 1.2 of the TBT Agreement  stipulates that "for the purposes of this Agreement the 
meaning of the terms given in Annex 1 appli es".  The first paragraph of Annex 1 to the 
TBT Agreement  defines the term "technical regulation" as follows: 
Document which lays down product characteristics or their related 
processes and production methods, including the applicable administrative provisions, with wh ich compliance is mandatory.  It 
may also include or deal exclusively with terminology, symbols, 
packaging, marking or labelling requirements as they apply to a product, process or production method. 
                                                      
385Mexico's appellee's submission, heading III.A.2. 
386Mexico's appellee's submission, para. 41 and footnote 43 thereto (quoting Panel Report, para. 7.144). 
387Mexico's appellee's submission, para. 44.  
388Mexico's appellee's submission, para. 44. 
389Mexico's appellee's submission, para. 68 (referring to Panel Report, paras. 7.128, 7.131, 7.137, 
and 7.142-7.145). 
390Appellate Body Report, EC – Sardines , para. 176.  WT/DS381/AB/R 
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185. Annex 1.1 defines the term "technical regulati on" by reference to a "document", which is 
defined quite broadly as "something written, inscribed , etc., which furnishes evidence or information 
upon any subject".391  The use of the term "document" could therefore cover a broad range of 
instruments or apply to a variety of measures.  Annex 1.1 to the TBT Agreement , however, narrows 
the scope of measures that can be characterized as a "technical regulation" by referring to a document 
that "lays down product characteristics or thei r related processes and production methods, including 
the applicable administrative provisions".  The ve rb "lay down" is defined as "establish, formulate 
definitely (a principle, a rule); prescribe (a course of action, limits, etc.)".392  Annex 1.1 further 
describes a technical regulation by reference to a "d ocument" "with which comp liance is mandatory".  
The noun "compliance" is defined as "[t]he action of complying".393  The verb "comply" refers to an 
"[a]ct in accordance with or with a request, command, etc."394  The word "mandatory" means 
"obligatory in consequence of a command, compulsory"395, or "being obligatory".396 
186. Regarding the subject matter of a technical regulation, we note that the language in Annex 1.1 
clarifies that a technical regulation may establish or prescribe "product characteristics or their related processes and production methods".  Annex 1.1 to the TBT Agreement  further states that a technical 
regulation may include or "deal exclusively with terminology, symbols, packaging, marking or 
labelling requirements as they apply to a produc t, process or production method."  Regarding the 
meaning of the notion of "labelling requirements", we note that the word "requirement" means "a 
condition which must be complied with".
397  The term "labelling requirements" thus refers to 
provisions that set out criteria or conditions to be  fulfilled in order to use a particular label. 
187. The second sentence of Annex 1.2, which sets out  the definition of "standard" for purposes of 
the TBT Agreement , contains language identical to that f ound in the second senten ce of Annex 1.1.  
With respect to the second sentence of these provision s, the subject matter of a particular measure is 
therefore not dispositive of whether a measure c onstitutes a technical regulation or a standard.  
Instead, "terminology", "symbols", "packaging", "mar king", and "labelling requirements" may be the 
                                                      
391Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 731.  We note that the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning 
Standardization and Related Activities (the "ISO/IEC Guide 2: 1991") establishes that "[a] document is to be 
understood as any medium with information recorded on or in it." 
392Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1562. 
393Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 472. 
394Shorter Oxford  English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 473. 
395Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1694. 
396Merriam Webster's Dictionary of Law , L.P. Wood (ed.) (Merriam-W ebster Inc., 1996), p. 304. 
397Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2541. WT/DS381/AB/R 
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subject-matter of either technical regulations or stan dards.  The fact that "labelling requirements" may 
consist of criteria or conditions that must be complie d with in order to use a particular label does not 
imply therefore that the measure is for that reas on alone a "technical regulation" within the meaning 
of Annex 1.1. 
188. For all these reasons, we consider that a panel' s determination of whether a particular measure 
constitutes a technical regulation must be made in th e light of the characteristics of the measure at 
issue and the circumstances of the case.
398  In some cases, this may be a relatively straightforward 
exercise.  In others, the task of the panel may be  more complex.  Certain features exhibited by a 
measure may be common to both technical regulations  falling within the scope of Article 2 of the 
TBT Agreement  and, for example, standards falling under Artic le 4 of that Agreement.  Both types of 
measure could, for instance, contain conditions that mu st be met in order to use a label.  In both cases, 
those conditions could be "compulsory" or "binding" and "enforceable".  Such characteristics, taken 
alone, cannot therefore be dispositive of the prope r legal characterization of the measure under the 
TBT Agreement .  Instead, it will be necessary to consider a dditional characteristics of the measure in 
order to determine the disciplines to wh ich it is subject under that Agreement.399  This exercise may 
involve considering whether the measure consis ts of a law or a regulation enacted by a 
WTO Member, whether it prescribes or prohibits particular conduct, whether it sets out specific requirements that constitute the sole means of addr essing a particular matter, and the nature of the 
matter addressed by the measure. 
189. Having examined the meaning of the term "techni cal regulation" as defined in Annex 1.1, we 
turn to examine the United States' appeal of th e Panel's conclusion that the measure at issue 
constitutes a "technical regulation" within the meaning of the TBT Agreement . 
B. Whether the Measure at Issue C onstitutes A Technical Regulation 
190. As already mentioned, we consider that a de termination of whether a particular measure 
constitutes a technical regulation must be made in the light of the features of the measure and the 
circumstances of the case. 
191. In assessing whether the US "dolphin-safe" labelling provisions c onstitute a technical 
regulation, we note first that the measure at issue consists of a law enacted by the US Congress
400 and 
regulations pertaining to the use of the "dolphin-safe" label set out in the United States Code of 
                                                      
398See Appellate Body Report, EC – Asbestos , para. 64;  and Appellate Body Report, EC – Sardines , 
paras. 192 and 193. 
399See Appellate Body Reports, China – Auto Parts , para. 171. 
400As noted, the DPCIA is codified in Title 16, Section 1385 of the United States Code .  WT/DS381/AB/R 
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Federal Regulations .401  In other words, the DPCIA and th e implementing regulations constitute 
legislative or regulatory acts of the US federal authorities.402 
192. Before the Panel, the United States clarified th at the DPCIA establishes the conditions for use 
of a "dolphin-safe" label on tuna products.403  In addition, the United States referred to the 
implementing regulations as the "DPCIA implementing regulations" and stated that "[t]he DPCIA and 
implementing regulations are the source and aut hority for understanding the conditions on labelling 
tuna products dolphin-safe".404  The United States further explained that the regulations reflect the 
conditions for the use of the "dolphin-safe" label a nd ensure that tuna caught by certain vessels is 
labelled "dolphin-safe" only if the conditions set out in the DPCIA have been met.405 
193. Taken together, the DPCIA, the implementing re gulations, and the Hogarth ruling set out the 
requirements for when tuna products sold in the United States may be labelled as "dolphin-safe".  
More specifically, they condition eligibility for a "dolphin-safe" label upon certain documentary 
evidence that varies depending on the area where the tuna contained in the tuna product is harvested 
and the type of vessel and fishing method by which it is harvested.  They also prohibit any reference 
to dolphins, porpoises, or marine mammals on the label for tuna products if the tuna contained in such 
products does not comply with the labelling conditi ons spelled out in the DPCIA.  Other labelling 
schemes that do not satisfy the specific requirements in the US measure are therefore prohibited by 
virtue of the measure at issue.  Consequently , the US measure establishes a single and legally 
mandated set of requirements for making any st atement with respect to the broad subject of 
                                                      
401These regulations were promulgated in accordance with the DPCIA and are codified in Title 50, 
Section 216, of the United States Code of Federal Regulations .  
402Panel Report, para. 7.20.  
403Panel Report, para. 7.22 (referring to United States' response to Panel Question 3, paras. 3-6). 
404Panel Report, para. 7.22 (quoting United States ' response to Panel Question 7, para. 19). 
405More specifically, the United States argued that: 
Regulations pertaining to the use of dolphin safe label are set out in the U.S. Code of Federal Regulations (CFR).  Mexico challenges the provisions set 
out at 50 CFR 216.91 and 216.92.  These provisions reflect the conditions 
for use of the dolphin safe label on tuna products set out in the DPCIA.  Consistent with the DPCIA, section 216.91 sets out the conditions for use of 
the dolphin safe label based on whether the tuna was caught in a fishery 
where there is a regular and signif icant association between tuna and 
dolphins or regular and significant mortalities or serious injury of dolphins.  
Section 216.91 also clarif ies that these conditions only apply to vessels in 
the ETP that have a carrying capacity greater than 362.8 metric tons, and 
section 216.92 contains provisions to ensure that tuna caught by such 
vessels is labeled dolphin safe only if  the conditions set out in the DPCIA 
have been met.  Section 216.92 sets out the provisions applicable to 
domestic and imported tuna separately, although the basic requirements are 
the same and seek to ensure that clai ms that tuna is dolphin safe comply 
with U.S. law. 
(Panel Report, footnote 194 to para. 7.22 (quoting United States' first written submission  to the Panel, para. 31)) 
(footnotes omitted by the Panel) WT/DS381/AB/R 
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"dolphin-safety" of tuna products in the United St ates.  As the Panel found, the US "dolphin-safe" 
labelling provisions set out "certain requirements that must be complied with in order to make any 
claim relating to the manner in which the tuna cont ained in [a] tuna product was caught, in relation to 
dolphins".
406  The US measure thus covers the entire field of what "dolphin-safe" means in relation to 
tuna products in the United States.  We attach im portance to these characteristics of the measure at 
issue in assessing whether it can properly be charact erized as a "technical regulation" within the 
meaning of the TBT Agreement . 
194. We further note that the US measure provi des for specific enforcement mechanisms.407  Thus, 
under the DPCIA, it is "a violation of section 45 of title 15 for any producer, importer, exporter, 
distributor, or seller of any tuna product … to include on the label of that product the term 
'dolphin-safe' or any other term or symbol that falsely claims or suggests that the tuna contained in the 
product were harvested using a method of fi shing that is not harmful to dolphins."408  In addition, the 
measure at issue sets out active su rveillance mechanisms to guarant ee compliance with its norms and 
imposes sanctions in case of wrongful labelling.409  
195. The United States submits that whether the measu re at issue is legally enforceable does not 
provide a basis for drawing a distinction be tween technical regulations and standards.410  T h e  
United States explains, for example, that "labe lling requirements" may be subject to enforcement 
regardless of whether they are set forth in a standard  or in a technical regulation.  It is true that 
"labelling requirements" in a standard or in a tech nical regulation may be subject to enforcement.  
However, the US measure not only sets out certain cond itions for the use of a label, but, in addition, it 
enforces a prohibition against the use of any ot her label containing the terms "dolphin-safe", 
"dolphins", "porpoises", or "marine mammals" on a tuna product that does not comply with the 
                                                      
406Panel Report, para. 7.143. (original emphasis) 
407We note that, in EC – Asbestos , the Appellate Body attached importa nce to the fact that the measure 
was legally enforceable.  The Appellate Body added that the measure included "applicable administrative 
provisions", with which compliance was mandatory fo r products with certain objective characteristics. 
(Appellate Body Report, EC – Asbestos , paras. 72-74) 
408Subsection 1385(d)(1) of the DPCIA. 
409The Panel noted in this regard that: 
… if a product is found to be wrongfully labelled during a spot check, the product will most likely be seized as evidence.  Later on the US authorities 
may decide to forfeit, destroy or in the case of imports, have the product re-
exported, depending on the facts and circ umstances of the case.  Moreover, 
sanctions for offering for sale or export tuna products falsely labelled 
"dolphin-safe" may be assessed against any producer, importer, exporter, distributor or seller who is subject to the jurisdiction of the United States.  
Violators may also be prosecuted directly under the DPCIA provisions or 
under federal provisions establishing false statement or smuggling prohibitions or federal labelling standards. 
(Panel Report, para. 2.33) (footnotes omitted) 
410United States' appellant's submission, para. 51.  WT/DS381/AB/R 
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requirements set out in the measure.  Moreover, th e enforcement of the US measure does not require 
proving that a given conduct is deceptive under a law against deceptive practices.  Rather, the 
measure at issue establishes that including on the label of a tuna product the term "dolphin-safe", or 
even using any label or mark that refers to dol phins, porpoises, or marine mammals without meeting 
the conditions set forth in the measure, is, in itself,  a violation of Section 45 of Title 15 of the 
United States Code .411  In effect, the measure at issue establis hes a single definition of "dolphin-safe" 
and treats any statement on a tuna product regard ing "dolphin-safety" that does not meet the 
conditions of the measure as a deceptive practice or act.  
196. The United States contends that compliance w ith a labelling requireme nt is "mandatory" 
within the meaning of Annex 1.1 only "if there is al so a requirement to use the label in order to place 
the product for sale on the market".412  By contrast, in the United States' view, compliance with a 
labelling requirement is not mandatory  in situations where producers retain the option of not using the 
label but nevertheless are able to sell the produc t on the market.  The text of Annex 1.1 to the 
TBT Agreement  does not use the words "market" or "terr itory".  Nor does it indicate that a labelling 
requirement is "mandatory" only if there is a requirement to use a particular label in order to place a 
product for sale on the market.  To us, the mere fact  that there is no requirement to use a particular 
label in order to place a product for sale on the market does not preclude a finding that a measure constitutes a "technical regulation" within the meani ng of Annex 1.1.  Instead, in the context of the 
present case, we attach significance to  the fact that, while it is possible to sell tuna products without a 
"dolphin-safe" label in the United States, any "producer, importer, exporter, distributor or seller"
413 of 
tuna products must comply with the measure at i ssue in order to make any "dolphin-safe" claim. 
197. The United States suggests that the Panel's alle gedly erroneous interp retation of Annex 1.1 
was "largely based on its reading of the Appellate Body report in EC – Sardines ".414  According to the 
United States, the Panel's reliance on that Appellate Body report was incorrect for two reasons.  First, 
in that dispute, neither the panel nor the Appella te Body considered whether compliance with the 
measure at issue was mandatory.  Second, EC – Sardines  involved a requirement that products 
marketed as "preserved sardines" be prepared ex clusively from a certain type of sardines.  The 
United States maintains that this is a product ch aracteristic "intrinsic to" preserved sardines, and 
unless preserved sardines met this product characteris tic, they were prohibited from being marketed as 
such.  By contrast, the measure in the present case do es not relate to product characteristics that tuna 
                                                      
411Subsections 1385(d)(1) and 1385(d)(3)(C) of the DPCIA.  In response to questioning at the oral 
hearing, the United States indicated that the law referred to in the DPCIA is the US law against deceptive acts or 
practices. 
412United States' appellant's submission, para. 32 (referring to Panel Report, para. 7.150). 
413Subsection 1385(d)(1) of the DPCIA.  
414United States' appellant's submission, footnote 92 to para. 61. WT/DS381/AB/R 
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products must meet to be sold on the US market .  Rather, tuna products can be sold in the 
United States as tuna products either with or without a "dolphin-safe" label.
415 
198. The measure at issue in EC – Sardines  was a regulation setting out a number of prescriptions 
for the sale of "preserved sardines", including the requirement that they contain only one named species of sardines, to the exclusion of others.  U nder the facts of that case, it was possible to sell 
these other species of sardines on the EC market, pr ovided that such sardines were not sold under the 
appellation "preserved sardines".  The fact that the Appellate Body characterized the measure at issue 
in EC – Sardines  as a "technical regulation" appears to suppor t the notion that the mere fact that it is 
legally permissible to sell a product on the market w ithout using a particular la bel is not determinative 
when examining whether a measure is a "technical regulation" within the meaning of Annex 1.1. 
199. As noted, a determination of whether a partic ular measure constitutes a technical regulation 
must be made in the light of the characteristics of  the measure at issue and the circumstances of the 
case.  In this case, we note that the US measure is composed of legislative and regulatory acts of the 
US federal authorities and includes administrative pr ovisions.  In addition, the measure at issue sets 
out a single and legally mandated definition of a " dolphin-safe" tuna product and disallows the use of 
other labels on tuna prod ucts that do not satisfy this defi nition.  In doing so, the US measure 
prescribes in a broad and exhaustive manner the cond itions that apply for making any assertion on a 
tuna product as to its "dolphin-safety", regardless of the manner in which that statement is made.  As a 
consequence, the US measure covers the entire field of what "dolphin-safe" means in relation to tuna 
products.  For these reasons, we find that the Panel did not err in characterizing the measure at issue as 
a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement .
416 
VI. Article 2.1 of the TBT Agreement 
200. We turn next to address Mexico's appeal of the Panel's finding that Mexico failed to 
demonstrate that the US "dolphin-safe" labelling prov isions are inconsistent with Article 2.1 of the 
TBT Agreement . 
201. Article 2.1 of the TBT Agreement  provides that, with respect to their central government 
bodies: 
Members shall ensure that in respect of technical regulations, 
products imported from the territory of any Member shall be accorded treatment no less favourable  than that accorded to like 
                                                      
415United States' appellant's submission, footnote 92 to para. 61. 
416Having found that the measure at issue constitutes a technical regulation, we need not address 
Mexico's alternative argument  that the US measure is de facto  mandatory.  WT/DS381/AB/R 
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products of national origin and to  like products originating in any 
other country. 
202. Article 2.1 of the TBT Agreement  consists of three elements that must be demonstrated in 
order to establish an inconsistency with this prov ision, namely:  (i) that the measure at issue 
constitutes a "technical regulation" within the meani ng of Annex 1.1;  (ii) that the imported products 
must be like the domestic product and the products of  other origins;  and (iii) that the treatment 
accorded to imported products must be less favourable  than that accorded to like domestic products 
and like products from other countries.417  Mexico's appeal concerns only the Panel's finding in 
respect of the third element, namely, the "treat ment no less favourable" standard in Article 2.1.418  We 
further note that the United States ha s not appealed the Panel's finding that Mexican tuna products are 
"like" tuna products of United States' origin and tu na products originating in any other country within 
the meaning of Article 2.1 of the TBT Agreement . 
A. The Panel's Findings regarding "Treatment No Less Favourable" 
203. On the basis of its reading of Article 2.1 of the TBT Agreement , the Panel found that less 
favourable treatment would arise in respect of technical regulations: 
… if imported products originating in  any Member were placed at a 
disadvantage, compared to lik e domestic products  and imported 
products originating in any othe r country, with respect to the 
preparation, adoption or application of technical regulations.419 
204. The Panel observed that the essence of the measures covered under Article 2.1 of the 
TBT Agreement  is to set out certain product characteristics or their related processes and production 
methods or, for example, labelling requirements as they apply to products or processes and production 
methods that must be complied with.  The Panel adde d that "[d]istinctions in treatment may therefore 
arise … but they must not be designed or applied to  the detriment of imports or imports of certain 
origins".420  The Panel further emphasized that the questi on of what is less favourable treatment within 
the meaning of Article 2.1 is also "informed by the terms of the preamble [of the TBT Agreement ], 
which makes it clear that measures covered by the TBT Agreement must not be 'applied in a manner 
which would constitute a means of arbitrary or un justifiable discrimination between countries where 
the same conditions prevail'."421 
                                                      
417Appellate Body Report, US – Clove Cigarettes , para. 87.  
418We recall that, earlier in our analysis, we found that the Panel did not err in characterizing the 
measure at issue as a "technical regulation"  within the meaning of Annex 1.1 to the TBT Agreement . 
419Panel Report, para. 7.273. 
420Panel Report, para. 7.276.  
421Panel Report, para. 7.276.  WT/DS381/AB/R 
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205. In its analysis of less favourable treatment, the Panel examined first the regulatory distinction 
upon which the US measure was based, that is, the di stinction between the treatment of tuna products 
containing tuna caught by setting on dolphins and the treatment of tuna pr oducts containing tuna 
caught by other fishing methods, and found that this  distinction, in itself, does not place "Mexican 
tuna products at a disadvantage compared to US and other imported tuna products".
422  The Panel 
reasoned that denying the "dolphin-safe" label to tuna caught by setting on dolphins does not 
necessarily imply that less favourable treatment is afforded to Mexican tuna products, because "any 
fleet operating anywhere in the world must comply with the requirement".423  For the Panel, even 
assuming "that tuna of Mexican origin might more like ly not be eligible for the label because it would 
be caught in the ETP by setting on dolphins, this would not necessarily imply that products processed 
in Mexico would be less likely to qualify for the label".424  In the Panel's view, this is because 
"Mexican processors could choose to make their pr oducts from tuna of other origins meeting the 
requirements of the label".425 
206. The Panel then considered whether less fa vourable treatment nonetheless arises from the 
"application" of the US measure, due to the prac tices followed by Mexican and other fishing fleets.426  
The Panel observed that "at least two thirds of Mexico's purse seine tuna fleet fishes in the ETP by 
setting on dolphins (therefore fishing for tuna th at would not be eligible to be contained in a 
'dolphin-safe' tuna product under the US dolphin-safe labelling provisions)".427  The Panel further 
noted that the US fishing fleet currently did not appear to practise setting on dolphins in the ETP.428  
Based on its analysis, the Panel found that "as the practices of the US and Mexican tuna fleets 
currently stand, most tuna caught by Mexican vessels, being caught in the ETP by setting on dolphins, would not be eligible for inclusion in a dolphi n-safe product under the US dolphin-safe labelling 
provisions".
429  By contrast, "most tuna caught by US v essels is potentially eligible for the label, 
provided that it otherwise complies with the requirements of the measures".430  However, the Panel 
was "not persuaded that it follows from these f acts that the United States affords Mexican tuna 
products 'less favourable treatment' th an that afforded to tuna products  originating in the United States 
or in any other country".431  The Panel explained that, as of 1990, when the first version of the DPCIA 
was enacted, "the United States and Mexico were in a comparable position with regard to their fishing 
                                                      
422Panel Report, paras. 7.304 and 7.311. 
423Panel Report, para. 7.305. 
424Panel Report, para. 7.310.  
425Panel Report, para. 7.310.  
426Panel Report, para. 7.311.  
427Panel Report, para. 7.314. 
428Panel Report, para. 7.316. 
429Panel Report, para. 7.317. 
430Panel Report, para. 7.317.  
431Panel Report, para. 7.319.  WT/DS381/AB/R 
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practices in the ETP, in that both of them had th e majority of their fleet operating in the ETP 
composed of purse seine vessels potentially setting on dolphins".432  While US vessels "gradually 
discontinued setting on dolphins to catch tuna, and abandoned the practice entirely in 1994, four years 
after the enactment of the measures"433, the Mexican fleet "concentrated its efforts on complying with 
the AIDCP requirements on observer coverage and fishing gear and equipment" rather than 
abandoning setting on dolphins.434  As a result, the Mexican fleet a nd other fishing fleets that chose to 
continue to set on dolphins "were not eligib le for dolphin-safe labelling under the existing 
US measures, while tuna caught without setting on dolphins remained eligible."435  The Panel was 
therefore not persuaded that "any current discrepancy in the[ ] relative situations [of the Mexican and 
other fishing fleets]" was a result of the US "dolphi n-safe" labelling provisions rather than the result 
of the choices of private actors.436  The Panel added that the existence of adaptation costs, in itself, did 
not establish less favourable treatment.437  The Panel further remarked that the decisions by major 
processors of tuna products not to purchase tuna caught by setting on dolphins predated the adoption of the first version of the DPCIA in 1990, which first defined "dolphin-safe" tuna harvested by a 
vessel using purse seine nets in the ETP as tuna that is not caught on a trip involving intentional 
deployment on, or encirclement of, dolphins.
438  Based on its analysis, the Panel was therefore not 
convinced that access to the principal US distribut ion channels was being denied to Mexican tuna 
products by the measure at issue.  Nor was the Panel persuaded that both retailers and consumers 
would purchase Mexican tuna products if they were eligible for a "dolphin-safe" label, as Mexico had 
argued. 
207. On this basis, the Panel concluded that Mexico had failed to demonstrate that the 
US "dolphin-safe" labelling provisions afford less favourable treatment to Mexican tuna products 
within the meaning of Article 2.1 of the TBT Agreement .  Instead, the Panel found that the 
US "dolphin-safe" labelling provisions "do not inherently discriminate on the basis of the origin of the 
products", and "do not make it impossible for Mexican tuna products to comply with" the requirement 
not to set on dolphins.439  Rather, it considered significant the fact that "the impact of the US dolphin-
safe provisions on different operators on the market and on tuna products of various origins depends 
                                                      
432Panel Report, para. 7.324.  
433Panel Report, para. 7.327. 
434Panel Report, para. 7.331.  
435Panel Report, para. 7.331.  
436Panel Report, para. 7.334. In support of its pos ition, the Panel referred to the Appellate Body's 
finding in Korea – Various Measures on Beef that "where it is the decision of  private actors rather than the 
governmental measure that results in the segregation of imported and domestic like products, this would not be a breach of Article III:4 insofar as what is addressed by this provision is merely the governmental intervention 
that affects the conditions under which like goods, dome stic and imported, compete in the market." (Panel 
Report, para. 7.334 (referring to Appellate Body Report, Korea – Various Measures on Beef , para. 149)) 
437Panel Report, para. 7.342. 
438Panel Report, para. 7.361. 
439Panel Report, para. 7.377. WT/DS381/AB/R 
Page 84  
 
on a number of factors that are not related to the nationality of the product, but to the fishing and 
purchasing practices, geographical location, relative in tegration of different segments of production, 
and economic and marketing choices."
440  The Panel concluded therefore that "any particular adverse 
impact felt by Mexican tuna products on the US market" was "primarily the result of 'factors or circumstances unrelated to the foreign origin of the product', including the choices made by Mexico's 
own fishing fleet and canners".
441 
B. Mexico's Appeal regarding "Treatment No Less Favourable" 
208. On appeal, Mexico argues that the Panel erred in its interpretation and application of the 
phrase "treatment no less favourable" in Article 2.1 of the TBT Agreement .  According to Mexico, the 
Panel failed to "fully consider the context of  Article 2.1 and the object and purpose of the 
TBT Agreement ."442  Mexico submits that the "applicable test" under Article 2.1 of the 
TBT Agreement  is to assess "whether a measure modifies th e conditions of competition in the relevant 
market to the detriment of the imported products in question."443  Mexico considers, however, that 
technical regulations that meet the criteria of  the sixth recital of the preamble of the TBT Agreement444 
"should not be prohibited by Article 2.1 even if they modify the conditions of competition in the 
relevant market to the detriment of the imported product in question."445  Mexico reasons that the 
preamble "modifies the meaning of the substantive oblig ation in Article 2.1 so that discrimination that 
is prohibited in that Article does not extend to measures meeting the criteria of the preamble."446  In 
addition to challenging the Panel's in terpretation and application of Ar ticle 2.1, Mexico also claims 
                                                      
440In support of its approach, the Panel pointed to the Appellate Body's statement in Dominican 
Republic – Import and Sale of Cigarettes  that the "existence of a detrimental effect on a given imported product 
resulting from a measure does not necessarily imply that  this measure accords less favourable treatment to 
imports if the detrimental effect is explained by factors or circumstances unrelated to the foreign origin of the 
product". (Panel Report, paras. 7.375 and 7.378 (referring to Appellate Body Report, Dominican  
Republic – Import and Sale of Cigarettes , para. 96)) 
441Panel Report, para. 7.378. 
442Mexico's other appellant's submission, para. 86.  
443Mexico's other appellant's submission, para. 99. 
444The sixth recital reads as follows: 
Recognizing  that no country should be prevented from taking measures 
necessary to ensure the quality of its exports, or for the protection of human, 
animal or plant life or health, of the environment, or for the prevention of 
deceptive practices, at the levels it co nsiders appropriate, subject to the 
requirement that they are not applied in a manner which would constitute a 
means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement. 
445Mexico's other appellant's submission, para. 109.  
446Mexico's other appellant's submission, para. 109.   WT/DS381/AB/R 
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that the Panel acted inconsistently with its obligatio n to make an objective assessment of the matter in 
accordance with Article 11 of the DSU.447 
209. The United States considers that the Panel properly interpreted Article 2.1 of the 
TBT Agreement and rightly found that the US "dolphin- safe" labelling provisions do not accord 
Mexican tuna products "less favourable treatment" than it accords to US tuna products and tuna 
products originating in other countries.448  In the United States' view, an inquiry into whether a 
measure provides "less favourable treatment" requir es a determination of whether the "measure 
accords different treatment to importe d products versus domestic products and whether it does so 
based on origin".449  That such different treatment must be based on origin de jure  or de facto , as 
opposed to origin-neutral criteria, is, according to  the United States, evident from Article 2.1 and the 
relevant context provided by the TBT Agreement and Article III of the GATT 1994.  Regarding the 
question of how to assess whether th e treatment accorded to imported products is less favourable, the 
United States observes that the covered agreements  do not specify a "precise approach to this 
question".  In previous cases on Article III of th e GATT 1994, panels and th e Appellate Body have 
"typically" assessed whether, if a measure provides different treatment to imported and like products, 
it modifies the conditions of competition to the detr iment of imported products.  However, for the 
United States, the emphasis is on whether a measure modifies the conditions of competition based on 
the origin of the imported product.450 
210. We begin our analysis by examining the legal standard of the "treatment no less favourable" 
requirement in Article 2.1 of the TBT Agreement .  We then turn to Mexico's appeal regarding the 
Panel's interpretation and app lication of this requirement. 
C. "Treatment No Less Favourable" under Article 2.1 of the TBT Agreement 
211. Article 2.1 of the TBT Agreement  applies "in respect of technical regulations".  A technical 
regulation is defined in Annex 1.1 as a "[d]ocumen t which lays down product characteristics or their 
related processes and production methods … with which compliance is mandatory".  As such, 
technical regulations are measures that, by their ve ry nature, establish distinctions between products 
                                                      
447Mexico's other appellant's submission, para. 188. 
448United States' appellee's submission, para. 102. 
449United States' appellee's submission, para. 32 (referring to Panel Report, Brazil – Retreaded Tyres , 
paras. 7.420 and 7.421;  Panel Report, Canada – Autos , paras. 7.179-7.182;  Panel Report, Canada – Wheat 
Exports and Grain Imports , para. 6.164;  Appellate Body Reports, China – Auto Parts , paras. 192-195;  
Appellate Body Report, Korea – Various Measures on Beef , paras. 143 and 144;  Panel Report, Mexico – Taxes 
on Soft Drinks , paras. 8.120-8.122;  Panel Report, India – Autos , paras. 7.199-7.202;  Panel Report, US – FSC 
(Article 21.5 – EC) , paras. 8.154-8.157;  and Panel Report, US – Gasoline , para. 6.10). (original emphasis) 
450United States' appellee's submission, para. 35 (referring to Appellate Body Report, Dominican 
Republic – Import and Sale of Cigarettes , para. 96;  and Panel Report, EC – Approval and Marketing of Biotech 
Products , paras. 7.2514 and 7.2515). WT/DS381/AB/R 
Page 86  
 
according to their characteristics or their rela ted processes and production methods.  Article 2.1 
should not be read therefore to mean that any distin ctions, in particular ones that are based exclusively 
on particular product characteristics or on par ticular processes and production methods, would per se  
constitute "less favourable treatment" within the meaning of Article 2.1.
451 
212. The context provided by Article 2.2452 supports a reading that Article 2.1 does not operate to 
prohibit a priori  any restriction of international trade.453  The question of what is "less favourable 
treatment" within the meaning of Article 2.1 is al so informed by a consideration of the context 
provided by the preamble of the TBT Agreement .454 
213. The sixth recital of the preamble recognizes that a WTO Member may take measures 
necessary for, inter alia , the protection of animal or plant life or health, or for the prevention of 
deceptive practices, at the levels it considers appr opriate, subject to the requirement that such 
measures "are not applied in a ma nner which would constitute a means of arbitrary or unjustifiable 
discrimination" or a "disguised restriction on in ternational trade" and are "otherwise in accordance 
with the provisions of this Agreement".  Althou gh the sixth recital does not explicitly set out a 
substantive obligation, we consider it nonetheless sheds light on the meaning and ambit of the 
"treatment no less favourable" require ment in Article 2.1, by making cl ear, in particular, that technical 
regulations may pursue legitimate objectives but mu st not be applied in a manner that would 
constitute a means of arbitrary or unjustifiable discrimination.455 
214. Regarding the context provided by other cove red agreements, we further note that the 
expression "treatment no less favourable" can be found in Article III:4 of the GATT 1994.456  In the 
context of that provision, the Appellate Body has in dicated that whether or not imported products are 
                                                      
451Appellate Body Report, US – Clove Cigarettes , para. 169. 
452Article 2.2 of the TBT Agreement   provides: 
Members shall ensure that technical re gulations are not prepared, adopted or 
applied with a view to or  with the effect of creating unnecessary obstacles to 
international trade.  For this purpose, technical regulations shall not be more 
trade-restrictive than necessary to fu lfil a legitimate objective, taking 
account of the risks non-fu lfilment would create. 
453Appellate Body Report, US – Clove Cigarettes , para. 171. 
454Article 31.2 of the Vienna Convention  states, in relevant part, that "[t]he context for the purpose of 
the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes". 
455Appellate Body Report, US – Clove Cigarettes , para. 173. 
456Article III:4 of the GATT 1994 reads: 
The products of the territory of any Member imported into the territory of 
any other Member shall be accorded tr eatment no less favourable than that 
accorded to like products of nationa l origin in respect of all laws, 
regulations and requirements affecting their internal sale, offering for sale, 
purchase, transportation, distribution or use.  The provisions of this 
paragraph shall not prevent the application of differential internal 
transportation charges which are ba sed exclusively on the economic 
operation of the means of transport and not on the nationality of the product.  WT/DS381/AB/R 
 Page 87 
 
 
treated "less favourably" than like domestic products should be assessed "by examining whether a 
measure modifies the conditions of competition in the relevant market to the detriment of imported 
products.457  We consider these previous findings by the Appellate Body to be instructive in assessing 
the meaning of the expression "treatment no less fa vourable", provided that the specific context in 
which the term appears in Article 2.1 of the TBT Agreement is taken into account.458 
215. As the Appellate Body has previously expl ained, when assessing claims brought under 
Article 2.1 of the TBT Agreement , a panel should therefore seek to ascertain whether the technical 
regulation at issue modifies the conditions of compet ition in the relevant market to the detriment of 
the group of imported products vis-à-vis  the group of like domestic products or like products 
originating in any other country.459  The existence of such a detrimental effect is not sufficient to 
demonstrate less favourable treatment under Article 2.1.460  Instead, in US – Clove Cigarettes , the 
Appellate Body held that a "panel must further analyze whether the detrimental impact on imports 
stems exclusively from a legitimate regulatory distin ction rather than reflecting discrimination against 
the group of imported products."461 
216. With respect to the burden of showing that a technical regulation is inconsistent with 
Article 2.1 of the TBT Agreement , we recall that it is well-established "that the burden of proof rests 
upon the party, whether complaining or defending, w ho asserts the affirmative of a particular claim or 
defence".462  Where the complaining party has met the burden of making its prima facie  case, it is then 
for the responding party to rebut that showing.  The nature and scope of arguments and evidence 
required to establish a prima facie  case will necessarily vary according to  the facts of the case.  In the 
context of Article 2.1 of the TBT Agreement , the complainant must prove its claim by showing that 
the treatment accorded to imported products is "l ess favourable" than that accorded to like domestic 
products or like products originating in any othe r country.  If it has succeeded in doing so, for 
example, by adducing evidence and arguments sufficien t to show that the measure is not even-handed, 
this would suggest that the measure is inconsistent with Article 2.1.463  If, however, the respondent 
                                                      
457Appellate Body Report, Korea – Various Measures on Beef , para. 137. (original emphasis)  In 
Thailand – Cigarettes (Philippines) , the Appellate Body further clarified that there must be in every case a 
"genuine relationship" between the measure at issue itself "and its adverse impact on competitive opportunities 
for imported versus like domestic products to support a finding that imported products are treated less 
favourably". (Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134) 
458Appellate Body Report, US – Clove Cigarettes , para. 180.  See also para. 215. 
459Appellate Body Report, US – Clove Cigarettes , para. 180.  See also para. 215. 
460Appellate Body Report, US – Clove Cigarettes , para. 182.  See also para. 215. 
461Appellate Body Report, US – Clove Cigarettes , para. 182.  See also para. 215.  The Appellate Body 
also stated that a panel must exam ine, in particular, whether the tech nical regulation is even-handed. ( Ibid., 
para. 182) 
462Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:1, 323, at 335. 
463Appellate Body Report, US – Clove Cigarettes , para. 182.  See also para. 215. WT/DS381/AB/R 
Page 88  
 
shows that the detrimental impact on importe d products stems exclusively from a legitimate 
regulatory distinction, it follows that the challenge d measure is not inconsistent with Article 2.1.  
217. With this in mind, we turn to review the Panel's interpretation of Article 2.1 of the 
TBT Agreement and the analytical approach adopted by the Panel.  
1. The Panel's Approach to Assessi ng "Treatment No Less Favourable"  
218. Mexico argues that the Panel correctly cons idered the ordinary meaning of the phrase 
"treatment no less favourable".  Yet, in Mexico's vi ew, the Panel failed to "fully consider the context 
of Article 2.1 and the object and purpose of the TBT Agreement ".464  Mexico recalls that although the 
TBT Agreement  does not include a substantive equivalent  to the general exceptions found in, for 
example, Article XX of the GATT 1994, the sixth recital of the preamble of the TBT Agreement  does 
include similar language.  Referring to  the text of the sixth recital, Mexico submits that "technical 
regulations that meet all the criteria of the recital should not be prohibited by Article 2.1 even if they 
modify the conditions of competition in the relevant  market to the detriment of the imported product 
in question."465  Mexico asserts, however, that the US " dolphin-safe" labelling pr ovisions do not meet 
these criteria. 
219. As explained above, we consider that the preamble of the TBT Agreement  informs the 
meaning of Article 2.1.  However, we do not agr ee with Mexico's argument that compliance with 
Article 2.1 must be assessed by examining first wh ether a technical regulation satisfies each of the 
criteria of the sixth recital, and then, as a second step, examining whether it modifies the conditions of 
competition in the relevant market to the detrimen t of the imported products.  Mexico appears, in 
effect, to be suggesting that the preamble sets out  a test that is separate and independent from 
Article 2.1.  This, in our view, does not find support in  the text of Article 2.1.  Moreover, the approach 
suggested by Mexico would appear to contradict Me xico's own view that language in the preamble is 
not substantive.466 
220. Mexico argues that the Panel departed from th e way in which the phrase "treatment no less 
favourable" has been examined in previous di sputes under Article III:4 of the GATT 1994 and erred 
by conducting a detailed analysis of whether "Mexica n tuna products could somehow get access to the 
label", suggesting that this reflects an  erroneous interpretation of Article 2.1.467  Mexico faults the 
Panel in particular for imposing a standard under wh ich a measure could be f ound to be inconsistent 
                                                      
464Mexico's other appellant's submission, para. 86.  
465Mexico's other appellant's submission, para. 109.  
466Mexico's other appellant's submission, para. 104.  
467Mexico's other appellant's submission, paras. 143 and 144.   WT/DS381/AB/R 
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with Article 2.1 of the TBT Agreement  only if it imposed an "absolute prohibition" on imports.468  
Mexico recognizes that, under the facts of this case, there was no "absolute prohibition" or bar "to the 
use of the label by Mexican tuna products because th e label was available to Mexican tuna products if 
the Mexican tuna fleet and Mexican canneries ac cepted the conditions of access to the label and 
modified their practices to comply with those conditions."469  However, Mexico emphasizes that the 
question was not whether there was such a prohibitio n.  Instead, argues Mexico, the phrase "treatment 
no less favourable" in Article 2.1 of the TBT Agreement must be interpreted and applied with 
reference to whether imported products are provi ded equal competitive opportunities as compared to 
like domestic products and like products from other countries.470 
221. An enquiry into whether a measure comports  with the "treatment no less favourable" 
requirement in Article 2.1 does not hinge on wh ether the imported products could somehow get 
access to an advantage, for example, by complyi ng with all applicable conditions.  Rather, as 
explained above, a determination of whether im ported products are accorded "less favourable 
treatment" within the meaning of Article 2.1 of the TBT Agreement  calls for an analysis of whether 
the contested measure modifies the conditions of co mpetition to the detriment of imported products.  
Contrary to what the Panel appears to have assume d, the fact that a complainant could comply or 
could have complied with the conditions imposed by a contested measure does not mean that the 
challenged measure is therefore cons istent with Article 2.1 of the TBT Agreement . 
222. Mexico submits that the Panel erred in relyin g on the findings of the Appellate Body Report 
in Dominican Republic – Import and Sale of Cigarettes  because the facts of this dispute are different 
from those in that case.471  In particular, Mexico points out that in this dispute the discriminatory 
effect is not between certain producers and importe rs but between the group of  Mexican tuna products 
overall compared to the group of like tuna pro ducts from the United States and, in the case of 
Mexico's MFN claim, between the group of Mexica n tuna products and the group of tuna products 
from other countries.472  Mexico adds that a measure that is "origin neutral" on its face can still violate 
the national treatment obligation if it has the effect  "of modifying the conditions of competition to the 
detriment of the imported product by denying the imported product an equality of competitive 
opportunities with a like domestic product in th e marketplace of the importing WTO Member."473  
                                                      
468Mexico's other appellant's submission, para. 143. 
469Mexico's other appellant's submission, para. 143. 
470Mexico's other appellant's submission, paras. 97 and 99.  
471Mexico's other appellant's submission, paras. 170-172 (referring to Panel Report, para. 7.375, in turn 
quoting Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 96). 
472Mexico's other appellant's submission, para. 172. 
473Mexico's other appellant's submission, para. 174.  WT/DS381/AB/R 
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According to Mexico, "[i]t is only when the re levant facts are examined as a whole that the de facto 
discrimination becomes apparent."
474 
223. The United States counters that it is not the Pane l, but Mexico, that misconstrues the findings 
of the Appellate Body in Dominican Republic – Import and Sale of Cigarettes .475  The United States 
also disagrees with Mexico's assertion that the Pane l's interpretation is "somehow at odds with the 
notion that discrimination may be de facto as well as de jure ".476  According to the United States, the 
Panel fully understood the notion and ambit of de facto discrimination.  Yet, "the fact that some 
imported products may fall within the group of like products that are subject to different treatment 
that may be less favourable alone is not evidence th at a measure accords less favourable treatment to 
imported products as compared to lik e domestic products, particularly wh ere there is evidence that the 
basis for the different treatment is not in fact origin."477  Finally, although the United States agrees 
with Mexico that the measure at issue restri cts the option of selling tuna products labelled 
"dolphin-safe" that contain tuna caught by setting on  dolphins, it argues that this is not evidence that 
the US measure "establishes competitive conditions that are less favourable  for imported products".478  
Instead, the United States submits that "any ch ange the U.S. measure introduced regarding the 
conditions under which tuna  products compete is not one that modified the conditions of competition 
to the detriment of imported tuna pr oducts originating in some countries as compared to others", since 
"all tuna products compete under the same conditions", irrespective of their origin.479 
224. In finding that Mexico had failed to dem onstrate that the US "dolphin-safe" labelling 
provisions afford "less favourable treatment" to Mexican tuna products within the meaning of 
Article 2.1 of the TBT Agreement , the Panel reasoned, inter alia , that "the measures at issue, in 
applying the same origin-neutral requirement to all tuna products, do not inherently discriminate on 
the basis of the origin of the products".480  The Panel added that it appears that: 
… the impact of the US dolphin-safe provisions on different 
operators on the market and on t una products of various origins 
depends on a number of factors that are not related to the nationality 
of the product, but to the fishing and purchasing practices, geographical location, relative inte gration of different segments of 
production, and economic and marketing choices.  In this context, 
any particular adverse impact fe lt by Mexican tuna products on the 
US market is, in our view, primarily the result of "factors or 
                                                      
474Mexico's other appellant's submission, para. 175. 
475United States' appellee's submission, para. 84. 
476United States' appellee's submission, para. 87 (referring to Mexico's other appellant's submission, 
para. 174). 
477United States' appellee's submission, para. 88. 
478United States' appellee's submission, para. 97. 
479United States' appellee's submission, para. 98. 
480Panel Report, para. 7.377.   WT/DS381/AB/R 
 Page 91 
 
 
circumstances unrelated to the foreign origin of the product", including the choices made by Mexico's own fishing fleet and canners.
481 
225. In its analysis, the Panel appears to juxtapose f actors that "are related to the nationality of the 
product" with other factors such as "fishing and purchasing practices,  geographical location, relative 
integration of different segments of production, and economic and ma rketing choices."  In so doing, 
the Panel seems to have assumed, incorrectly in our  view, that regulatory distinctions that are based 
on different "fishing methods" or "geographi cal location" rather than national origin per se  cannot be 
relevant in assessing the consistency of a par ticular measure with Article 2.1 of the TBT Agreement .  
The Panel's approach is difficult to reconc ile with the fact that a measure may be de facto  inconsistent 
with Article 2.1 even when it is origin-neutral on its face.  As the Appella te Body explained in  
US – Clove Cigarettes , in making a determination of whether a measure is de facto  inconsistent with 
Article 2.1, "a panel must carefully scrutinize the particular circumstances of the case, that is, the 
design, architecture, revealing structure, operation, an d application of the technical regulation at issue, 
and, in particular, whether that technical regulation is even-handed."482  The Panel failed to conduct 
such an analysis in the present case.  Contrary to the Panel, we consid er that in an analysis of "less 
favourable treatment" under Article 2.1, any adverse impact on competitive opportunities for imported 
products vis-à-vis  like domestic products that is caused by a particular measure may potentially be 
relevant.483 
226. Mexico also faults the Panel for failing to find th at the US measure is "discriminatory" in that 
it uses a market access restriction to "pressure" Me xico and the Mexican fleet to adopt essentially the 
same "dolphin-safe" regime as in force in the United States, thereby per se targeting the origin of the 
tuna products.484  As noted, technical regulations inheren tly establish distinctions between products 
according to their characteristics or their related processes and production methods.  Thus, Article 2.1 
should not be read to mean that any distinction would per se  accord "less favourab le treatment" within 
the meaning of that provision.  At the same time, we have noted that any adverse impact on 
competitive opportunities for imported products vis-à-vis  like domestic products that is caused by a 
technical regulation may potentially be relevant for an assessment of "less favourable treatment".  It 
may thus have been pertinent for the Panel to c onsider, along with other factors, the question of 
whether the US measure had the effect of exerting pressure on Mexico to modify its practices.  This 
alone, however, would not be sufficient to  establish a breach of Article 2.1.   
                                                      
481Panel Report, para. 7.378.  
482Appellate Body Report, US – Clove Cigarettes , para. 182. 
483Appellate Body Report, US – Clove Cigarettes , footnote 372 to para. 179.  
484Mexico's other appellant's submission, paras. 178 and 179 (referring to Appellate Body Report,  
US – Shrimp , para. 164). WT/DS381/AB/R 
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227. In sum, we consider that the Panel applie d an incorrect approach to assessing whether the 
measure at issue is inconsiste nt with Article 2.1 of the TBT Agreement . 
D. Whether the US Measure Is Inconsistent  with Article 2.1 of the TBT Agreement 
228. Based on our interpretation of Article 2.1 of the TBT Agreement  set out above, we now 
consider whether the US "dolphin-safe" labelling prov isions are inconsistent with this provision, as 
Mexico contends. 
229. As noted above, Article 2.1 of the TBT Agreement  consists of three elements each of which 
must be demonstrated in order to establish inconsis tency with this provision, namely:  (i) that the 
measure at issue constitutes a technical regulation w ithin the meaning of Annex 1.1;  (ii) that the 
imported products must be "like" th e domestic product and the products of other origin s;  and (iii) that 
the treatment accorded to imported products must be less favourable than that accorded to like 
domestic products and like pr oducts from other countries.
485 
230. Earlier in our analysis, we found that the Pane l did not err in characterizing the measure at 
issue as a technical regulation within the meani ng of Annex 1.1.  We further note that the 
United States has not appealed the Panel's finding th at Mexican tuna products are "like" tuna products 
of US origin and tuna products originating in any other country within the meaning of Article 2.1 of 
the TBT Agreement .486  This brings us to the question of whether, in the light of the findings of fact 
made by the Panel and uncontested facts on the record, it can be concluded that Mexico has 
established that the US "dolphin-safe" labelling provisions accord "less favourable treatment" to 
Mexican tuna products than that accorded to tuna  products of the United States and tuna products 
originating in other countries. 
231. Our analysis of this issue proceeds in two parts.   First, we will assess whether the measure at 
issue modifies the conditions of competition in the US market to the detriment of Mexican tuna 
products as compared to US tuna products or tu na products originating in any other Member.487  
Second, we will review whether any detrimental im pact reflects discriminat ion against the Mexican 
tuna products. 
232. Our analysis will scrutinize, in particular, whethe r, in the light of the factual findings made by 
the Panel and undisputed facts on the record, the US  measure is even-handed in the manner in which 
                                                      
485Appellate Body Report, US – Clove Cigarettes , para. 87. 
486See Panel Report, para. 7.251.  
487Appellate Body Report, US – Clove Cigarettes , para. 180.  See also para. 215.  WT/DS381/AB/R 
 Page 93 
 
 
it addresses the risks to dolphins arising from different fishing methods in different areas of the 
ocean.488 
1. Whether the Measure Modifies the Conditions of Competition in the 
US Market to the Detriment of Mexican Tuna Products 
233. The Panel found that the "dolphin-safe" labe l has "significant commercial value on the 
US market for tuna products".489  The Panel further found that Mexico had presented evidence 
concerning retailers' and final cons umers' preferences regarding tuna  products, which, in the Panel's 
view, confirmed the value of the "dolphin-safe" label on the US market.490  On this basis, the Panel 
agreed with Mexico that access to the "dolphi n-safe" label constitutes an "advantage" on the 
US market.491  These findings have not been appealed. 
234. The Panel further found that:  (i) "the Mexican t una cannery industry is vertically integrated, 
and the major Mexican tuna products producers and canneries own their vessels, which operate in the 
ETP"492;  (ii) "at least two thirds of Mexico's pur se seine tuna fleet fishes in the ETP by setting on 
dolphins" and is "therefore fishing for tuna that  would not be eligible to be contained in a 
'dolphin-safe' tuna product under the US dolphin-safe labelling provisions"493;  (iii) "the US fleet 
currently does not practice setting on dolphins in the ETP"494;  (iv) "as the practices of the US and 
Mexican tuna fleets currently stand, most tuna ca ught by Mexican vessels, being caught in the ETP by 
setting on dolphins, would not be eligible fo r inclusion in a dolphin-safe product under the 
US dolphin-safe labelling provisions", while "most t una caught by US vessels is potentially eligible 
for the label".495 
235. In our view, the factual findings by the Panel clearly establish that the lack of access to the 
"dolphin-safe" label of tuna products containing tu na caught by setting on dolphins has a detrimental 
impact on the competitive opportunities of Mexican tuna products in the US market. 
236. Mexico and the United States disagree as to wh ether any detrimental impact on Mexican tuna 
products results from the measure itself rather than from the actions of private parties.  In assessing 
whether there is a genuine relationship between th e measure at issue and an adverse impact on 
competitive opportunities for imported products, the re levant question is whether governmental action 
                                                      
488Appellate Body Report, US – Clove Cigarettes , para. 182.  See also para. 215. 
489Panel Report, para. 7.289.  
490Panel Report, para. 7.290 (referring to Panel Exhibit MEX-58 (BCI)). 
491Panel Report, para. 7.291.  
492Panel Report, para. 7.310. 
493Panel Report, para. 7.314. 
494Panel Report, para. 7.316. 
495Panel Report, para. 7.317.  See also paras. 7.344, 7.357, and 7.533. WT/DS381/AB/R 
Page 94  
 
"affects the conditions under which like goods, domestic  and imported, compete in the market within 
a Member's territory".
496  In Korea – Various Measures on Beef , the Appellate Body reasoned that: 
… the dramatic reduction in numbe r of retail outlets for imported 
beef followed from the decisions of individual retailers who could 
choose freely to sell the domestic product or the imported product.  
The legal necessity of making a choice was, however, imposed by the measure itself.  The restricted natu re of that choice should be noted.  
The choice given to the meat retailers was not an option between 
remaining with the pre-existing unified distribution set-up or going to 
a dual retail system.  The choice was limited to selling domestic beef 
only or imported beef only.  Thus , the reduction of access to normal 
retail channels is, in legal contempla tion, the effect of that measure. 
In these circumstances, the intervention of some element of private choice does not relieve Korea of responsibility under the GATT 1994 
for the resulting establishment of competitive conditions less 
favourable for the imported product than for the domestic product.
497 
(original emphasis) 
237. The relevant question is thus whether the governmental  intervention "affects the conditions 
under which like goods, domestic and imported, co mpete in the market within a Member's 
territory".498  In this regard, we recall that it is the me asure at issue that establishes the requirements 
under which a product can be labelled "dolphin-safe" in the United States.   As noted by the Panel: 
… access to the label is controlled by compliance with the terms of 
the measures.  Therefore, to the exte nt that access to the label is an 
advantage on the marketplace, this advantage is provided by the 
measures themselves.  The exact va lue of the advantage provided by 
access to the label on the marketplac e will depend on the commercial 
value attributed to it by operators on the market, including retailers and final consumers.
499 
238. Moreover, while the Panel agreed with the United States that "US consumers' decisions 
whether to purchase dolphin-safe tuna products are the result of their own choices rather than of the 
measures", it noted that: 
… it is the measures themselves that control access to the label and 
allow consumers to express their preferences for dolphin-safe tuna. An advantage is therefore afforded to products eligible for the label 
by the measures, in the form of access to the label.
500 
                                                      
496Appellate Body Report, Korea – Various Measures on Beef , para. 149. 
497Appellate Body Report, Korea – Various Measures on Beef , para. 146. 
498Appellate Body Report, Korea – Various Measures on Beef , para. 149. 
499Panel Report, para. 7.285.  
500Panel Report, para. 7.287.   WT/DS381/AB/R 
 Page 95 
 
 
239. These findings by the Panel suggest that it is th e governmental action in the form of adoption 
and application of the US "dolphin-safe" labelling provisions that has modified the conditions of 
competition in the market to the detriment of Mexi can tuna products, and that  the detrimental impact 
in this case hence flows from the measure at issue.   Moreover, it is well established that WTO rules 
protect competitive opportunities, not trade flows.501  It follows that, even if Mexican tuna products 
might not achieve a wide penetration of the US mark et in the absence of the measure at issue due to 
consumer objections to the method of setting on dolphins, this does not change the fact that it is the 
measure at issue, rather than private actors, that denies most Mexican tuna products access to a 
"dolphin-safe" label in the US market.  The fact th at the detrimental impact on Mexican tuna products 
may involve some element of private choice does not, in our view, relieve the United States of 
responsibility under the TBT Agreement , where the measure it adopts modifies the conditions of 
competition to the detriment of Mexican tuna products.502 
240. In the light of the above, we consider that  it is the measure at issue that modifies the 
competitive conditions in the US market to the detrim ent of Mexican tuna products.  We turn next to 
the issue of whether this detrimental impact reflects discrimination. 
2. Whether the Detrimental Impact Reflects Discrimination 
241. Mexico's claim of discrimination may be summarized as follows: 
The U.S. dolphin-safe labelling provisions are discriminatory.  
Imports of tuna products produced from tuna harvested outside the 
ETP – in other words, virtually all of  the tuna products currently sold 
in the U.S. market – can be labelled as dolphin-safe under relaxed compliance standards even though there are no protections for dolphins outside the ETP.  Meanwh ile, tuna products from Mexican 
producers – who have taken extens ive and demonstratively highly 
successful measures to protect dolphins – are prohibited from using 
the label.
503 
242. The Panel found that the US measure pursues th e following objectives:  (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 US market is not used to encour age fishing fleets to catch tuna in a manner that 
adversely affects dolphins".504  The Panel accepted these objectives as legitimate within the meaning 
                                                      
501Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III 
(Article 21.5 – US) , para. 469 (referring to Appellate Body Report, EC – Bananas III , para. 252, in turn referring 
to GATT Panel Report, US – Superfund , para. 5.1.9). 
502See Appellate Body Report, Korea – Various Measures on Beef , para. 146.   
503Mexico's other appellant's submission, para. 129.  
504Panel Report, para. 7.401.  WT/DS381/AB/R 
Page 96  
 
of Article 2.2 of the TBT Agreement .
505  The Panel further noted that "as described by the 
United States itself, its measures seek to address a range of adverse effects of fishing techniques on 
dolphins", including "situations in which dolphins are killed or seriously injured."506 
243. The Panel made factual findings and reviewed a fair amount of evidence and arguments in the 
context of its analysis under Article 2.2 that are rele vant to the issue of whether the detrimental impact 
to Mexican tuna products reflects  discrimination and thus are pertinent to our assessment of the 
measure at issue under Article 2.1.  We begin by re viewing the uncontested facts on the record of the 
Panel proceedings, and factual findings by the Panel that are not challenged on appeal, before turning 
to other findings made by the Panel which are subj ect to claims brought by the United States under 
Article 11 of the DSU. 
(a) Uncontested Findings by the Panel 
244. First, regarding the issue of dolphin mortality as a result of setting on dolphins in the ETP, the 
Panel found that:  
[i]t is undisputed, in particular, that the fishing method known as 
setting on dolphins may result in a substantial amount of dolphin 
mortalities and serious injuries, especially when used without 
applying certain fishing gear and procedures designed to reduce dolphin bycatch.  The number of dolphins killed in the ETP before the adoption of the controls established by the AIDCP*, and the ensuing degradation of the dolphi ns stocks in this area, are 
illustrative of the potentially devastating consequences that tuna 
fishing activities may have on dolphins.
507 
* [original footnote 635] Mexico's first written submission, para. 50. 
245. The Panel also noted that "both parties r ecognize that setting on dolphins may adversely 
affect dolphins".508  It stated that the "number of dolphins killed in the ETP before the adoption of the 
controls established by the AIDCP, and the ensuing degradation of dolphin stocks in this area, are 
well-documented", adding that "Mexico does not deny that dolphins may be killed or seriously injured 
during purse-seine net fishing manoeuvres."509  The Panel further stated: 
We also agree with the United Stat es that the existence of the DMLs 
["dolphin mortality limits"] established by the AIDCP shows that 
                                                      
505Panel Report, para. 7.444.  As we explain in the following section of our Report, a panel adjudicating 
a claim under Article 2.2 of the TBT Agreement  is required to objectively ascer tain a measure's objective.  A 
panel must also determine whether the objective of the measure is "legitimate". 
506Panel Report, para. 7.550.  
507Panel Report, para. 7.438.  
508Panel Report, para. 7.493 (referring to Mexico 's second written submission to the Panel;  and 
United States' first written submission to the Panel, para. 52).  
509Panel Report, para. 7.493 (referring to Mexico's oral statement at the first Panel meeting).   WT/DS381/AB/R 
 Page 97 
 
 
setting on dolphins, even in controlled conditions, may result in some dolphin mortality.*  In 2008, observed dolphin mortality in the ETP amounted to 1,168 dolphins, whereas in 2009, 1,239 dolphins were observed killed or seriously injured when set upon to catch tuna in the ETP.**  The parties to the AIDCP agreed to limit total incidental 
dolphin mortality in the purse-seine tuna fishery in the ETP to no 
more than five thousand dolphins annually.***  These limits have remained the same in recent years.****
 510 
* [original footnote 686] Although Mexico argues that the number of 
dolphins being killed annually in the ETP (around 1000) does not have a 
significant adverse effect on dolphins from a population recovery perspective, it does not deny that se tting on dolphins even according to the 
AIDCP may still result in observed  dolphin mortality or serious injury, 
Mexico's second written submission, para. 204. ** [original footnote 687] Exhibit US-24, p. 50;  Exhibit US-66, p. 3. 
*** [original footnote 688] Exhibit MEX-11, Article V. 
**** [original footnote 689] Panel Exhibit US-50, p. 1. 
246. The Panel further remarked that "there is a degr ee of uncertainty in relation to the extent to 
which setting on dolphins may have an adverse im pact on dolphins beyond observed mortality."511  
Nonetheless, the Panel determined "that sufficient ev idence has been put forwar d by the United States 
to raise a presumption that genuine  concerns exist in this respect".512  The Panel also found that the 
United States had put forward sufficient evidence to raise a presumption "that the method of setting 
on dolphins 'has the capacity' of resulting in obser ved and unobserved adverse effects on dolphins".513 
247. With respect to dolphin mortality  arising from tuna fishing outside the ETP , the Panel noted 
that "information is lacking to evaluate the existe nce and extent of the threats faced by different 
species of dolphins in different areas around the globe, especially outside the ETP."514  The Panel 
explained that its analysis of the existence of dolphin bycatch during tuna fishing operations outside  
the ETP was therefore "based on the evidence contained in a limited amount of ad hoc  studies".515  
While the Panel noted that there are "no records of consistent or widespread fishing effort on 
                                                      
510Panel Report, para. 7.493. 
511Panel Report, para. 7.504.  
512Panel Report, para. 7.504.  
513Panel Report, para. 7.737.  See also Panel Report , para. 7.560 ("as we have accepted earlier, setting 
on dolphins may result in observed and unobserved harmful effects on dolphins").  In response to questioning at 
the oral hearing, Mexico indicated that it did not contest this finding by the Panel.  
514Panel Report, para. 7.518 (referring to Panel Exhibit MEX-02, supra , footnote 118 ("suggesting 
more research 'on behaviour of tuna and dolphins' in the ETP");  Panel Exhibit MEX-05, supra , footnote 115, 
p. vii ("recommending research globally");  and M.A. Donahue and E.F. Edwards, "An annotated bibliography 
of available literature regarding cetacean interactions w ith tuna purse-seine fisheries outside of the eastern 
tropical Pacific Ocean", Southwest Fisheries Science Center, NOAA Administrative Report LJ-96-20 (1996) 
(Panel Exhibit US-10), p. 38 ("stati ng that 'data collection by objective scien tific agencies may be the only route 
to a truly unbiased picture of dolphin mortality incidental to purse-seine operations' in the western Pacific 
Ocean"). (Panel Report, footnote 726 to para. 7.518)  In  contrast, the Panel noted th at detailed information was 
available regarding dolphin mortalities resulting from tuna-fishing activities in the ETP. (Panel Report, 
para. 7.519) 
515Panel Report, para. 7.519. WT/DS381/AB/R 
Page 98  
 
tuna-dolphin associations anywhere other than in  the ETP", it found, as a matter of fact, that there 
were "clear indications that the us e of certain tuna fishing techniques other than setting on dolphins 
may also cause harm to dolphins".
516  This finding by the Panel is uncontested.517 
248. Regarding the tuna-dolphin association outside  the ETP, the Panel found that the limited 
evidence before it suggested "that the associati on between schools of tunas and dolphins does not 
occur outside the ETP as frequently  as it does within the ETP."518  The Panel further found that, 
"although there are indications that intentional se tting on dolphins occurs outside the ETP", there are 
"no records of consistent or widespread fishing effort on tuna-dol phin associations anywhere other 
than in the ETP".519  The Panel noted, however, that "even assuming that the United States' contention 
that certain environmental conditions in the ET P (such as the intensity of the tuna-dolphin 
association) are unique" is correct, the eviden ce submitted to the Panel suggests that "the risks faced 
by dolphin populations in the ETP are not."520  The Panel further found, and the participants do not 
contest, that where "tuna is caught outside the ETP, it would be eligible for the US official label, even 
if dolphins have in fact been caught or seriously injured during the trip, since there is, under the US measures as currently applied, no requirement for a certificate to the effect that no dolphins have 
been killed or seriously injured outside the ETP."
521  Again, these facts are uncontested.522 
249. Regarding the use of fishing methods other than setting on dolphins , the Panel further noted 
that: 
… the United States has explained th at the techniques currently used 
by US and foreign vessels to catch tuna for products sold on the US market include "purse seine sets on dolphins, unassociated purse 
seine sets  (sets on floating objects such as FADs and free swimming 
schools), longline, troll, pole and line, gillnet , harpoon and handline" 
(emphasis added [by the Panel]).  The United States has also stated 
that "most tuna products sold in th e United States are eligible to be 
labelled dolphin safe", and that for instance, "98.5% of total US imports (by volume) of canned tuna  products were eligible to be 
labelled dolphin safe in 2009".  This means the vast majority of tuna 
products containing tuna caught in the western Pacific Ocean by 
using, for instance, FADs, trolls or gillnets, sold in the US market are 
eligible to be labelled dolphin safe.   Based on this information, the 
Panel considers that Mexico has sufficiently demonstrated that tuna caught during a trip where dolphins were killed or seriously injured 
                                                      
516Panel Report, para. 7.520 (referring to Panel Exhibit US-10, supra , footnote 514, p. 38;  and Panel 
Exhibit MEX-02, supra , footnote 118, pp. 37 and 98). (original emphasis) 
517Mexico's and United States' responses to  questioning at the oral hearing.  
518Panel Report, para. 7.520. (original emphasis) 
519Panel Report, para. 7.520.  
520Panel Report, para. 7.552. (original emphasis)  
521Panel Report, para. 7.532.  
522Mexico and the United States confirmed this in response to questioning at the oral hearing.   WT/DS381/AB/R 
 Page 99 
 
 
using a method of fishing other than  setting on dolphins outside  the 
ETP may be contained in the tuna pr oducts sold in the US market 
under the dolphin safe label.  This is particularly true considering that 
no determination of existence of regular and significant tuna-dolphin association or regular and significant mortality has been made for any 
fishery outside the ETP, which means that under the DPCIA 
provisions that are currently applicable [to] all tuna products 
containing tuna caught in a non-ETP fishery using a method other than setting on dolphins are elig ible to be labelled dolphin safe 
without certifying that no dolphin was killed or seriously injured in 
the set.
523 (original emphasis; footnotes omitted) 
250. At the oral hearing, the United States accepted that "under the DPCIA provisions that are 
currently applicable  all tuna products containing tuna caught  in a non-ETP fishery using a method 
other than setting on dolphins are eligible to be  labelled dolphin-safe without certifying that no 
dolphin was killed or seriously injured in the set".524  The United States also confirmed that it did not 
contest the Panel's finding, in paragr aph 7.544 of the Panel Report, that: 
… the US dolphin-safe labelling provisions, as currently applied, 
address observed and unobserved mortality resulting from setting on 
dolphins, in any fishery, as well as observed mortality from other 
fishing methods within the ETP.  However, they do not address 
mortality (observed or unobserved)  arising from fishing methods 
other than setting on dolphins outside the ETP.525 
251. In sum, the participants do not contest the following findings by the Panel.  First, setting on 
dolphins within the ETP may result in a substantia l amount of dolphin mortalities and serious injuries 
and has the capacity of resulting in obser ved and unobserved effects on dolphins.526  Further, the use 
of certain fishing techniques other than  setting on dolphins causes harm to dolphins.527  With respect 
to tuna fishing outside the ETP, the participants do no t contest that the vast majority of tuna caught in 
the western Pacific Ocean is caught with FADs, trolls , or gillnets, and that US and foreign vessels use 
these fishing techniques.528  It is also uncontested that the tuna-dolphin association does not occur 
outside the ETP as frequently as it does within the ETP, and that there are no records of consistent and 
widespread fishing effort on tuna-dolphin associations anywhere other than in the ETP.529  Finally, the 
participants do not contest that, as currently ap plied, the US measure does not address mortality 
(observed or unobserved) arising from fishing me thods other than setting on dolphins outside the 
                                                      
523Panel Report, para. 7.534.  
524Panel Report, para. 7.534. (original emphasis) 
525Panel Report, para. 7.544.  
526Panel Report, paras. 7.438 and 7.49 3 (referring to Mexico's second written submission to the Panel;  
and United States' first written submission to the Panel, para. 52).  Mexico confirmed that it did not contest this 
fact in response to questioning at the oral hearing. 
527Panel Report, para. 7.520.  
528Panel Report, para. 7.534.  
529Panel Report, para. 7.520.  WT/DS381/AB/R 
Page 100  
 
ETP
530, and that tuna caught in this area would be eligible for the US official label, even if dolphins 
have in fact been killed or seriously injured during the trip.531 
252. In addition to the findings listed above, the Pa nel made several other findings which have 
been appealed by the United States under Article 11 of the DSU.  We address them below to the 
extent they are relevant to our analysis of whethe r the US "dolphin-safe" labelling provisions reflect 
discrimination. 
(b) Findings by the Panel subject to the United States' Appeal under 
Article 11 of the DSU 
253. As noted, the United States challenges several aspec ts of the Panel's analysis under Article 2.2 
as inconsistent with the Panel's duty, pursuant to  Article 11 of the DSU, to "make an objective 
assessment of the matter before it, including an obj ective assessment of the facts of the case."  We 
will examine these claims here to the extent that they  are relevant to our determination of whether the 
measure accords "less favourable treatment" to Me xican tuna products.  In particular, the 
United States challenges the Panel's findings with  respect to the relative harm to dolphins from 
different fishing methods as internally contradictory and inconsistent with the evidence before it.  The 
United States also takes issue with the Panel's appreciation and weighing of the evidence regarding 
the adverse effects on dolphins from tuna fishing and the depletion status of dolphin stocks outside the 
ETP, as well as the unobserved adverse effects from setting on dolphins and th e depletion of dolphin 
stocks inside the ETP. 
254. As the Appellate Body has pointed out on several occasions, Article 11 of the DSU requires a 
panel to "consider all the evidence presented to it,  assess its credibility, determine its weight, and 
ensure that its factual findings have  a proper basis in that evidence."532  At the same time, panels "are 
not required to accord to factual evidence of the parties the same meaning and weight as do the 
parties".533  In this respect, "the Appellate Body will no t 'interfere lightly' with a panel's fact-finding 
authority, and will not 'base a finding of inconsiste ncy under Article 11 simply on the conclusion that 
[it] might have reached a different factual finding'."534  Instead, for a claim under Article 11 to 
succeed, the Appellate Body must be satisfied that  the panel has exceeded its  authority as the initial 
trier of facts.  As the initial trier of facts, a pa nel must provide "reasoned a nd adequate explanations 
                                                      
530Panel Report, para. 7.544.  We note that the measure at issue does address driftnet fishing in the high 
seas.  
531Panel Report, para. 7.532.  
532Appellate Body Report, Philippines – Distilled Spirits , para. 135 (quoting Appellate Body Report, 
Brazil – Retreaded Tyres , para. 185, in turn referring to Appellate Body Report, EC – Hormones , paras. 132 
and 133). 
533Appellate Body Report, Australia – Salmon , para. 267. 
534Appellate Body Report, Philippines – Distilled Spirits , para. 136 (quoting Appellate Body Report, 
US – Wheat Gluten , para. 151).  WT/DS381/AB/R 
 Page 101 
 
 
and coherent reasoning"535, and must base its finding on a sufficient evidentiary basis.536  Moreover, a 
participant claiming that a panel disregarded certa in evidence must explain why the evidence is so 
material to its case that the panel's failure to addr ess such evidence has a bear ing on the objectivity of 
the panel's factual assessment.537   
255. With these parameters in mind, we turn to review  the particular findings by the Panel that the 
United States has challenged under Article 11 of the DSU. 
256. The United States alleges, first, that the Panel acted inconsistently with Article 11 of the DSU 
by making contradictory findings.  The United States argues that "the Panel's conclusion that the risk to dolphins from other fishing techniques is not lower than the risk from setting on dolphins"
538 
contradicts the Panel's findings tha t:  (i) "certain fishing techniques seem to pose greater risks to 
dolphins than others";  and (ii) "setting on dolph ins may result in a substantial amount of dolphin 
mortalities and serious injuries".539  This contradiction itself, says the United States, constitutes a 
violation of Article 11 of the DSU. 
257. The United States does not provide a reference for the alleged Panel finding that "the risk to 
dolphins from other fishing techniques is not lower than the risk from setting on dolphins".540  From 
the context of the submission, we understand this alle gation to relate to paragr aphs 7.562 and 7.617 of 
the Panel Report, which the United States mentions in  paragraph 93 of its a ppellant's submission.  
Paragraph 7.562 of the Panel Report re ads, in relevant part, as follows:  
… in light of the evidence presente d in these proceedings, the Panel 
is not persuaded that the threats arising from the use of fishing methods other than setting on dolphins to catch tuna outside the ETP are insignificant, as the United States suggests, be it in terms of observed mortality or serious injury, or even, in at least some cases, 
in terms of sustainability of the populations.  Nor are we persuaded 
that they are demonstrated to be lower than the similar threats faced by dolphins in the ETP.
541  
258. The Panel stated that it was not "persuaded" th at risks arising from fishing methods other than 
setting on dolphins to catch tuna outside the ETP "a re demonstrated to be lower than the similar 
threats faced by dolphins in the ETP".542  As we understand the Panel, the "similar threats" it is 
                                                      
535Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , footnote 618 to para. 293. 
536Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 881 (referring to 
Appellate Body Report, US – Continued Zeroing , para. 338). 
537Appellate Body Report, EC – Fasteners (China) , para. 442. 
538United States' appellant's submission, para. 94. 
539United States' appellant's submission, para. 94 (quoting Panel Report, para. 7.438). 
540United States' appellant's submission, para. 94. 
541Panel Report, para. 7.562. 
542Panel Report, para. 7.562. WT/DS381/AB/R 
Page 102  
 
referring to in this excerpt are threats faced by dolphins in the ETP from the use of fishing methods 
other  than setting on dolphins.  We see no contradicti on between this statement by the Panel and the 
Panel's earlier findings that "certain fishing tec hniques seem to pose greater risks to dolphins than 
others" and that "setting on dolphins may result in  a substantial amount of dolphin mortalities and 
serious injuries".
543 
259. Paragraph 7.617 of the Panel Report in turn cont ains the following finding made by the Panel:  
… we are not persuaded, based on the evidence presented to us, that 
at least some of the dolphin populations affected by fishing 
techniques other than setting on dolph ins are not facing risks at least 
equivalent to those currently faced by dolphin populations in the ETP 
under AIDCP monitoring.544 
260. We do not see a contradiction between this finding and the Panel's earlier finding, in 
paragraph 7.438 of the Panel Report, that "the  fishing method known as setting on dolphins may result 
in a substantial amount of dolphin mortalities and seri ous injuries".  We note that the latter statement 
is qualified by the statement "especially when u sed without applying certain fishing gear and 
procedures designed to reduce dolphin bycatch", and it is made in the context of the Panel's discussion 
of the risks of setting on dolphins " before  the adoption of the controls established by the AIDCP 
[Agreement on the International Dolphin Conservation Program]".545  The Panel thus distinguished 
between the unregulated  practice of setting on dolphins and setting on dolphins under the conditions 
of the AIDCP.  Therefore, we see no contradicti on between, on the one hand, the Panel's finding that 
the unregulated  use of setting on dolphins to catch tuna poses greater risks to dolphins than other tuna 
fishing methods and, on the other hand, the Panel's statement that it was not persuaded that "at least 
some of the dolphin populations affected by fishing techniques other than setting on dolphins are not facing risks at least equivalent to those curre ntly faced by dolphin po pulations in the ETP under 
AIDCP monitoring ."
546 
261. The United States further asserts that the Pane l found that "harm to dolphins resulting from 
setting on tuna [sic] is equivalent to that resulting from other fishing methods".547  The United States 
alleges that this finding is inconsistent with ev idence before the Panel suggesting that setting on 
dolphins to catch tuna poses greater risks to dolph ins than other techniques.  In particular, the 
United States points to its arguments before the Pa nel that there is a regular and significant tuna-
dolphin association in the ETP but not in other ocea ns, and that dolphin popu lations in the ETP are 
                                                      
543United States' appellant's submission, para. 94 (quoting Panel Report, para. 7.438). 
544Panel Report, para. 7.617.  
545Panel Report, para. 7.438. (emphasis added)  
546Panel Report, para. 7.617. (emphasis added) 
547United States' appellant's submission, para. 96.  WT/DS381/AB/R 
 Page 103 
 
 
depleted with abundance levels at less than 30 per cent of the levels they were at before the practice of 
setting on dolphins began, and th at "outside the ETP, dolphin populations have not been depleted on 
account of their exploitation to catch tuna and do  not remain depleted on account of any such 
exploitation".548  The United States argues that there was no evidence before the Panel suggesting that 
the tuna-dolphin association outside the ETP is simila r to that within the ETP, and alleges that the 
Panel failed to address evidence to the effect that th e levels of the tuna-dolphin association in the ETP 
are unique, as well as evidence relating to the fishing methods used to catch tuna based on exploiting 
that association, and "what that mean s in terms of risks to dolphins".549 
262. We note that the United States does not provide a specific reference for the said finding by the 
Panel.  The structure of the submission suggests that the reference to "the Panel's finding" in 
paragraphs 95-99 of the United Stat es' appellant's submission may be to the Panel's conclusions set 
out in paragraph 93 of the United States' subm ission, namely, the Panel's conclusions in 
paragraphs 7.562 and 7.617 of the Panel Report.  W ith respect to the first finding, we do not see that 
the Panel found that harm to dolphins resulting fro m setting on them is equivalent to harm resulting 
from other fishing methods.  Instead, as noted above, the Panel stated that it was not "persuaded" that 
the risks arising from fishing methods other than setting on dolphins to catch tuna outside the ETP 
"are demonstrated to be lower than the similar threats  faced by dolphins in the ETP", which we 
understand as referring to threats from fishing methods other than setting on dolphins in the ETP.550  
With respect to the second finding, we note that the Panel explicitly referred to the "evidence 
presented to" it.551  This evidence included "examples of ob served dolphin mortalities in the western 
central Pacific …, which equate or exceed the number of dolphin observed mortalities in the ETP in 
recent years (which amount to approxima tely 1000 to 1200 deaths per year)."552  In the light of this 
evidence, we do not see that the Panel exceeded its discretion when it stated that it was not 
"persuaded" that "at least some of the dolphin popu lations affected by fishing techniques other than 
setting on dolphins are not facing risks at least equivalent to those currently faced by dolphin 
populations in the ETP under AIDCP monitoring".553 
263. The United States argues that the Panel erred in finding, on the one hand, that the quantity and 
the quality of the evidence of the risks faced by dolphin populations outside the ETP is less 
comprehensive than that of the evidence about dol phin mortality resulting from tuna fishing within 
the ETP, and in finding, on the ot her hand, based on the evidence be fore it, that "significant dolphin 
                                                      
548United States' appellant's submission, para. 96 (quoting United States' second written submission to 
the Panel, para. 43). 
549United States' appellant's submission, para. 99. 
550Panel Report, para. 7.562. (emphasis added) 
551Panel Report, para. 7.617.  
552Panel Report, para. 7.523.  
553Panel Report, para. 7.617.  WT/DS381/AB/R 
Page 104  
 
mortality also arises outside the ETP from the use of other techniques than setting on dolphins".
554  
The United States alleges that the Panel leapt from what it acknowledges to be  minimal evidence that 
there may be some harm to dolphins outside th e ETP to concluding that "significant dolphin 
mortality" occurs and that the Panel thus merely  assumed that dolphin mortality stemming from tuna 
fishing existed outside the ETP.555 
264. In its analysis, the Panel acknowledged that, due in particular to the AIDCP On-Board 
Observers Program and the AIDCP System for Trac king and Verifying Tuna, detailed information is 
available concerning dolphin mortalities resulting from tuna fishing in the ETP, and that, by contrast, 
evidence relating to dolphin bycatch outside th e ETP is contained in a "limited amount of ad-hoc 
studies".556  Nonetheless, the Panel engaged with the av ailable evidence and found, based on a review 
of numerous pieces of evidence listed in footnotes 733 to 743, that "there are clear indications that the 
use of certain tuna fishing techniques other  than setting on dolphins may also cause harm to 
dolphins."557 
265. The Panel also addressed the United States' argument that observer programmes outside the 
ETP exist and that they have not reported signifi cant mortalities.  The Panel reviewed evidence 
submitted by the United States in this respect and c oncluded that it was "not  persuaded that these 
figures demonstrate, as the United States suggests, th at there is no or only insignificant risk of dolphin 
mortality or injury arising from tuna fishing opera tions outside the ETP or call into question the other 
evidence referred to by Mexico and cited [in th e preceding paragraphs of the Panel Report]."558  The 
Panel stated that "[r]ather, the observations reflected  in this report confirm the existence of interaction 
outside the ETP between purse seine (and longline)  tuna fisheries and marine mammals, including 
dolphins, and the existence of some bycatch and mo rtality in this context in the WCPO [Western 
Central Pacific Ocean]."559  Subsequently, the Panel concluded that: 
… based on the evidence provided to us, we conclude that Mexico 
has demonstrated that certain tuna fishing methods other than setting 
on dolphins have the potential of adversely affecting dolphins, and 
that the use of these other techni ques outside the ETP may produce 
and has produced significant levels of dolphin bycatch, during the 
period over which the US dolphin-safe provisions have been in 
force.560 
                                                      
554United States' appellant's submission, para. 101 (referring to Panel Report, paras. 7.612 and 7.613).  
555United States' appellant's submission, paras. 101 and 102. 
556Panel Report, para. 7.519.  See also para. 7.530. 
557Panel Report, para. 7.520. (original emphasis) 
558Panel Report, para. 7.529. 
559Panel Report, para. 7.529. 
560Panel Report, para. 7.531.  WT/DS381/AB/R 
 Page 105 
 
 
266. We recall, again, that the ev idence before the Panel included "examples of observed dolphin 
mortalities in the western central Pacific, which equate or exceed the number of dolphin observed 
mortalities in the ETP in recent years (which amount to approximately 1000 to 1200 deaths per 
year)."561  We do not see that the Panel acted inconsiste ntly with Article 11 of the DSU by interpreting 
this as "strong evidence that regular and significant mort ality and serious injury of dolphins also exists 
outside the ETP".562 
267. The United States further alleges that the evid ence cited by the Panel regarding harm to 
dolphins caused by tuna fishing outside the ETP does not support the Panel's finding of significant dolphin mortality outside the ETP.  The United States argues that, in the Panel's analysis of the harm 
from tuna fishing practices other than setting on do lphins outside the ETP, the Panel erroneously 
relied on evidence which refers to fishing in genera l and which does not relate particularly to tuna 
fishing.
563  The United States asserts that "[s]ources that  refer to harms to dolphins from fishing 
operations other than tuna fishing operations  cannot be relied upon to support the Panel's 
conclusion."564 
268. Contrary to what the United States suggests, the Panel did not refer to sources that relate to 
harm to dolphins from fishing operations "other than tuna fishing operations".  Some of the evidence 
taken into account by the Panel refe rs to tuna fishing along with fishi ng for other species, some refers 
to fishing in general, and some refers specifically to  fishing for tuna.  In any event, as we see it, what 
is decisive is whether the eviden ce relied on by the Panel addresses th e conditions of fishing for tuna, 
and not whether, in addition to that, the evidence also addresses fishing for other species.565 
269. Furthermore, the United States argues that many of the sources on which the Panel relies as 
evincing harm to dolphins outside the ETP refer to driftnet fishing, a fishing technique that disqualifies tuna products caught on the high seas from being labelled "dolphin-safe" under the 
measure at issue.  The United States argues that  the possibility that dolphins may be harmed in 
driftnet fishing does not support the conclusion that there is significant harm to dolphins outside the 
ETP that is unaddressed under the measure at issue.
566 
270. We note that while the measure at issue stipulat es that tuna caught using driftnets on the high 
seas is not eligible for a "dolphin-safe" label, it gr ants access to the label to tuna products containing 
                                                      
561Panel Report, para. 7.523.  
562Panel Report, para. 7.543. 
563United States' appellant's submission, para. 103 (referring to Panel Report, paras. 7.520-7.523). 
564United States' appellant's submission, para. 103. 
565We note in this respect that "albacore", to which the Panel refers on several occasions, is a 
sub-species of tuna. 
566United States' appellant's submission, para. 104. WT/DS381/AB/R 
Page 106  
 
tuna caught with driftnets in exclusive economic zon es.  Insofar as such tuna products are eligible for 
a "dolphin-safe" label, the Panel's reliance on sources  relating to driftnet fishing was not "mistaken". 
271. Furthermore, the United States takes issue with th e value attached by the Panel to a report by 
the Secretariat of the Pacific Community submitted to  the Panel by Mexico as Panel Exhibit MEX-98.  
The United States argues that the Panel erred in asc ribing little value to this report, based on the 
consideration that the authors of the study considered  that further analysis was required, given that the 
evidence serving as the basis for the Panel's finding of significant harm to dolphins outside the ETP 
from tuna-fishing operations similarly noted the need for further study.
567 
272. This argument by the United States appears to be directed mainly at the weight that the Panel 
ascribed to the evidence before it.  The Appellate Body has consistent ly recognized that panels enjoy 
a margin of discretion in their assessment of the facts.568  This margin includes the discretion of a 
panel to decide which evidence it chooses to utilize in making its findings569, and to determine how 
much weight to attach to the various items of evidence placed before it by the parties.570  A panel does 
not err simply because it declines to accord to the ev idence the weight that one of the parties believes 
should be accorded to it.571 
273. The United States further asserts that the Panel acted inconsistently with Article 11 of the 
DSU by failing to "fully consider" two st udies submitted by the United States "reporting the 
unobserved impact on dolphins from being chased and encircled to catch tuna in the ETP".572  The 
United States also takes issue with the Panel's stat ement that other studies "question" the conclusions 
suggested by those studies.573  The United States submits that in f act they did not, and could not have 
done so, as the other studies referr ed to by the Panel largely pre-date the studies submitted by the 
United States, and one of the studies cited by the Pa nel as "questioning" the conclusion that there are 
unobserved harms from setting on dolphins was in fact among the studies that the Panel had previously found did suggest that there was such harm.
574 
                                                      
567United States' appellant's submission, para. 106. 
568Appellate Body Reports, China – Raw Materials , para. 341;  Appellate Body Report, EC – Asbestos , 
para. 161;  Appellate Body Report, EC – Hormones , para. 132;  Appellate Body Report, EC – Sardines , 
para. 299;  Appellate Body Report, Japan – Apples , para. 222;  Appellate Body Report, Korea – Dairy , 
paras. 137 and 138;  Appellate Body Report, US – Wheat Gluten , para. 151.  
569Appellate Body Report, EC – Hormones , para. 135.  
570Appellate Body Report, Korea – Dairy , para. 137.  
571Appellate Body Report, Australia – Salmon , para. 267;  Appellate Body Report, Japan – Apples , 
para. 221;  Appellate Body Report, Korea – Alcoholic Beverages , para. 164.  
572United States' appellant's submission, para. 108 (referring to Panel Exhibits US-21 and US-22, 
supra , footnote 58).  
573United States' appellant's submission, para. 109 (referring to Panel Report, para. 7.500).  
574United States' appellant's submission, para. 109 (referring to Panel Exhibit US-21, supra , 
footnote 58).    WT/DS381/AB/R 
 Page 107 
 
 
274. While an existing study may not directly or ex plicitly "question" a subsequent study, the 
conclusions contained in an existing study may well contradict the conclusions contained in a 
subsequent study.  We understand the Panel's st atement in paragraph 7.500 that "other studies 
question these conclusions" in this sense and therefore see no error in that statement.  In any event, we 
note that the Panel did rely on the two studies refe rred to by the United States in its discussion of 
unobserved adverse effects from setting on dolphins575, and ultimately found "that sufficient evidence 
has been put forward by the United States to raise a presumption that genuine concerns exist in this 
respect".576  Moreover, a panel does not err simply because it does not "fully consider" particular 
exhibits in the record, in particular if these exhib its merely contain facts and arguments that the panel 
has already discussed. 
275. The United States also takes issu e with the Panel's statement that dolphin populations near 
Ghana and Togo are "severely depleted", because ther e is "no indication in the source cited that the 
dolphin stocks off the coast of Ghana and Togo ar e depleted because of tuna fishing activities."577 
276. Contrary to what the United States suggests, th e Panel did not state that "dolphin stocks off 
the coast of Ghana and Togo are depleted because of tuna fishing activities".578  In any event, to the 
extent that this statement was made by the Panel in  the context of the Panel's assessment of adverse 
effects of fishing activities, including fishing for tuna, on dolphins, it may suggest that tuna fishing 
contributes to the depletion of dolphins in that re gion.  Thus, we do not consider that the Panel's 
statement would constitute an incorrect reflection of the content of the study.579 
                                                      
575Panel Report, footnote 690 to para. 7.495.  
576Panel Report, para. 7.504.  
577United States' appellant's submission, para. 111.   
578United States' appellant's submission, para. 111.  See also Panel Report, para. 7.553:  
[T]he study reports that the bycatch in this area "threatens the continued 
existence of Atlantic humpback dolphins" and reports that populations of this species of dolphin near the coast of Ghana and Togo are "severely 
depleted".  
579Panel Exhibit MEX-05 states, at the beginning of the relevant section with respect to dolphin 
bycatch, that:  
The largest catches, by far, are the re sult of deployment of large meshed 
drift gillnets targeting tuna, sharks, billfish, manta rays, and dolphins.  
(Panel Exhibit MEX-05, supra , footnote 115, p. 11) 
The relevant excerpt in the same section of this study reads as follows: 
In West Africa, bycatch threatens th e continued existence of Atlantic 
humpback dolphins.  While bycatch of humpback dolphins is well 
documented in other West African countries, bycatch monitoring of coastal fisheries in Ghana and Togo has failed to yield a single record because of 
the severely depleted population.  Research is needed to establish the range, 
distribution, natural history, taxonomy, abundance, and fishery interactions of Atlantic humpback dolphins.  A high priority area for dedicated field 
investigations is Ghana's Volta River region and western Togo.  
(Panel Exhibit MEX-05, supra , footnote 115, p. 11 (footnote omitted)) WT/DS381/AB/R 
Page 108  
 
277. The United States challenges the Panel's statem ent relating to serious depletion of the 
population of Irrawaddy dolphins in parts of Thaila nd and the Philippines for the same reason.  The 
Panel noted that "the study reports that the Irrawa ddy dolphin populations are seriously depleted in 
parts of Thailand and the Philippines."
580   
278. We note that the United States does not explain th e allegation that the Panel "implies" that the 
relevant dolphin stocks are depleted on account of  tuna-fishing activities.  The Panel may well have 
regarded tuna fishing activities as one among several causes of dolphin de pletion in the region.  In any 
event, however, in the light of th e evidence referenced by the Panel,  we see no error in the Panel's 
statement that "the study reports that the Irrawaddy dolphin populations are seriously depleted in parts 
of Thailand and the Philippines."  We therefore find no error in the Panel's assessment of the evidence 
in this respect. 
279. The United States also alleges that the Panel "n eglected to consider" evidence adduced by the 
United States demonstrating that dolphin populations in the ETP are depleted, and that the most likely 
reason for recovery rates below the expected rates was the continued tuna purse seine fishing in the 
ETP, even under the AIDCP guidelines.581  In particular, the United States refers to information 
contained in Panel Exhibits US-4, US-20, US-21, US-27, and US-28. 
280. We note that the Panel referenced, in paragr aph 7.438, the very Panel exhibits that the 
United States alleges the Panel "neglected to cons ider".  We therefore see no merit in the allegation 
that the Panel acted inconsistently with the oblig ation to objectively assess the evidence before it.  In 
any event, we recall, also with respect to this allegation of error, that the Appellate Body has 
consistently held that the Panel's margin of di scretion in its assessment of the facts includes the 
discretion to decide which evidence it chooses to utilize in making its findings582, and to determine 
how much weight to attach to the various ite ms of evidence placed before it by the parties.583  We do 
not see that the Panel exceeded this margin here. 
                                                      
580Panel Report, para. 7.554.  While the source given by the Panel (Panel Exhibit MEX-05, p. 27) refers 
to fisheries in general and not to tuna fishing, it is clear from the context in which it appears that tuna-fishing activities are a major concern in the region.  On the previous page, the report states as follows: 
Roughly 1,700 bottlenose dolphins and 1,000 spinner dolphins are 
incidentally caught in gillnet, driftnet, and purse-seine fisheries in the 
western central Pacific.  Also at risk  are Irrawaddy dolphins.  This region's 
fisheries are diverse and poorly documented.  Nevertheless, coastal gillnets, especially driftnets for tunas an d mackerels, are widely used. 
(Panel Exhibit MEX-05, supra , footnote 115, p. 26)  
581United States' appellant's submission, para. 113 (referring to Panel Exhibits US-4, US-20, US-21, 
US-27, and US-28, supra , footnotes 60 and 62). 
582Appellate Body Report, EC – Hormones , para. 135. 
583Appellate Body Report, Korea – Dairy , para. 137.  WT/DS381/AB/R 
 Page 109 
 
 
281. For all these reasons, we find that the Panel acted  consistently with it duties under Article 11 
of the DSU in its analysis of the arguments and evidence before it.  The Panel's factual findings 
therefore stand and can assist us in determining whether the US "dolphin-safe" labelling provisions 
are even-handed in the manner in which they a ddress the risks to dolphins arising from different 
fishing methods in different areas of the ocean. 
(c) Whether the Measure Is Calibrated 
282. The United States argued before the Panel that to  the extent that there are any differences in 
criteria that must be satisfied in order to substantia te "dolphin-safe" claims, they are "calibrated" to 
the risk that dolphins may be killed or seriously injured when tuna is caught.584  In this regard, the 
United States emphasized the uniqueness of the ETP in terms of the phenomenon of tuna-dolphin association, which is used widely and on a commerc ial basis to catch tuna, and causes observed and 
unobserved mortalities that, in the United States' view, are not comparable to dolphin mortalities 
outside the ETP.
585  The United States further alleged that there is a clear relationship between the 
objectives of the measure and the conditions under which tuna products may be labelled 
"dolphin-safe".586  This clear relationship, the United St ates argued, does not support the conclusion 
that the "dolphin-safe" labelling provisions are inconsistent with Article 2.1 of the TBT Agreement .587 
283. As an initial matter, we note that, in Japan – Apples , the Appellate Body pointed out that "[i]t 
is important to distinguish, on the one hand, the principle that the complainant must establish a 
prima facie  case of inconsistency with a provision of a covered agreement from, on the other hand, 
the principle that the party that asserts a fact  is responsible for providing proof thereof."588  Although 
the burden of proof to show that the US "dolphi n-safe" labelling provisions are inconsistent with 
Article 2.1 of the TBT Agreement  is on Mexico as the complainant, it was for the United States to 
support its assertion that the US "dolphin-safe" labe lling provisions are "calibrated" to the risks to 
dolphins arising from different fishing me thods in different areas of the ocean.589 
284. In the light of the findings of fact made by the Panel, we concluded earlier that the 
detrimental impact of the measure on Mexican tuna pr oducts is caused by the fact that most Mexican 
tuna products contain tuna caught by setting on dolphi ns in the ETP and are therefore not eligible for 
a "dolphin-safe" label, whereas most tuna products from the United States and other countries that are 
                                                      
584Panel Report, paras. 7.258, 7.546, and 7.559.  
585Panel Report, para. 7.559.  
586Panel Report, para. 4.158.  
587Panel Report, para. 7.258 (referring to United States' response to Panel Question 150).  
588Appellate Body Report, Japan – Apples , para. 157 (referring to Appellate Body Report, US – Wool 
Shirts and Blouses , p.14, DSR 1997:1, 323 at 335;  and Appellate Body Report, EC – Hormones , para. 98). 
589Panel Report, para. 7.546 (referring to United States' second written submission to the Panel, 
paras. 39-47).   WT/DS381/AB/R 
Page 110  
 
sold in the US market contain tuna caught by other fishing methods outside the ETP and are therefore 
eligible for a "dolphin-safe" label.  The aspect of  the measure that causes the detrimental impact on 
Mexican tuna products is thus the difference in la belling conditions for tuna products containing tuna 
caught by setting on dolphins in the ETP, on the one hand, and for tuna products containing tuna 
caught by other fishing methods outside the ETP, on th e other hand.  The question before us is thus 
whether the United States has demonstrated that this difference in labelling conditions is a legitimate 
regulatory distinction, and hence whether the detr imental impact of the measure stems exclusively 
from such a distinction rather than reflecting discrimination.  
285. The Panel stated that it was "not persuaded" that  "the United States has demonstrated that the 
requirements of the US dolphin-safe labelling provisions  are 'calibrated' to the likelihood of injury".
590  
The Panel also stated that it was "not persuaded th at the requirements applicable in different fisheries 
under the US dolphin safe measures are 'calibrated', as the United States suggests, to the likelihood of 
dolphins being killed or seriously injured."591  We note that the Panel made these statements in the 
context of its analysis under Article 2.2 of the TBT Agreement .  In particular, the Panel was examining 
the extent to which the distinctions containe d in the US "dolphin-safe" labelling provisions: 
… allow consumers to accurately distinguish between tuna that was 
caught in a manner that adversely affects dolphins and other tuna, by 
ensuring that the label is available exclusively to products containing 
tuna that was not caught "in a manner that adversely affects dolphins".
592 
286. The question examined by the Panel was thus different from the question of whether the 
detrimental impact of the US "dolphin-safe" la belling provisions on Mexican tuna products stems 
exclusively from a legitimate regulatory distincti on.  The Panel's findings with respect to the 
calibration of the measure at issue for the purposes of its analysis under Article 2.2 are thus not 
necessarily dispositive of the question whether the measure is calibrated for the purposes of 
Article 2.1.  In particular, it would appear that in answering the question of whether the measure gives 
accurate information to consumers, all distinctions drawn by the measure are potentially relevant.  By 
contrast, in an analysis under Article 2.1, we only need to examine the distin ction that accounts for the 
detrimental impact on Mexican tuna products as comp ared to US tuna products and tuna products 
originating in other countries.  Bearing the differe nt scope of these enquiries in mind, we need to 
examine carefully to what extent the Panel's fi ndings under Article 2.2 bear on the question of 
whether the difference in labelling conditions for tuna products containing tuna caught by setting on 
                                                      
590Panel Report, para. 7.559.  
591Panel Report, para. 7.561.  
592Panel Report, para. 7.490.  The Panel found that the distinctions were drawn in a way that created a 
"genuine risk that consumers may be misled about whether that tuna was caught by using a technique that does 
not adversely affect dolphins." (Panel Report, para. 7.562)   WT/DS381/AB/R 
 Page 111 
 
 
dolphins in the ETP, on the one hand, and for tuna products containing tuna caught by other fishing 
methods outside the ETP, on the other hand, are calib rated to the likelihood that dolphins would be 
adversely affected in the course of tuna fi shing operations in the respective conditions. 
287. The United States has presented extensive evid ence and arguments, and the Panel has made 
uncontested findings, to the effect that the fishi ng method of setting on dolphins causes observed and 
unobserved adverse effects on dolphins.  The Panel fu rther found that these ad verse effects are fully 
addressed in the measure at issue, since the measure denies access to the label to products containing 
tuna caught by setting on dolphins.593  The measure at issue thus addresses the adverse effects on 
dolphins resulting from the use of the fishing method that Mexico's fleet predominantly employs by disqualifying all tuna products c ontaining tuna harvested with that method from access to the 
"dolphin-safe" label.   
288. The Panel also found, and the United States did not contest, that there are "clear indications 
that the use of certain tuna fishing techniques other than setting on dolphins may also cause harm to 
dolphins".
594  The United States argued, however, that these adverse effects are "not comparable" to 
and are "fundamentally different" from the adverse effects resulting from setting on dolphins, and that 
the situation in the ETP is unique.595  The Panel agreed with the United States that "certain fishing 
techniques seem to pose greater risks to dolphins than others."596  However, it also stated that "even 
assuming that … certain environmental conditions in  the ETP (such as the intensity of tuna-dolphin 
association) are unique, the evidence subm itted to the Panel suggests that the risks  faced by dolphin 
populations in the ETP are not."597  It further stated that it was "not persuaded" that "at least some of 
the dolphin populations affected by fishing techni ques other than setting on dolphins are not facing 
risks at least equivalent to those currently faced by dolphin populations in the ETP under AIDCP 
monitoring."598  The United States has challenged these findings under Article 11 of the DSU.  
However, as explained above, we found no error in th e Panel's analysis that would amount to an error 
of law under Article 11.599   
289. It appears, then, that the Panel accepted the Un ited States' argument that the fishing technique 
of setting on dolphins is particularly harmful to dolph ins.  However, the Panel did not agree with the 
United States, based on the evidence that Mexico had placed before it, that th e risks to dolphins from 
                                                      
593Panel Report, para. 7.505.  
594Panel Report, para. 7.520 (referring to Panel Exhibit MEX-02, supra , footnote 118, pp. 37 and 98). 
(original emphasis) 
595Panel Report, paras. 7.258, 7.512, and 7.559.  
596Panel Report, para. 7.438. 
597Panel Report, para. 7.552. (original emphasis)  
598Panel Report, para. 7.617.  
599These findings by the Panel therefore stand.  WT/DS381/AB/R 
Page 112  
 
other fishing techniques are insignificant
600 and do not under some circumstances rise to the same 
level as the risks from setting on dolphins.601  These factual findings are the basis for the Panel's 
concerns about the way in which the measure at  issue addresses the potential adverse effects on 
dolphins from the use of fishing techniques other th an setting on dolphins outside the ETP.  As the 
Panel noted, where "tuna is caught outside the ETP, it w ould be eligible for the US official label, even 
if dolphins have in fact been caught or seriously injured during the trip, since there is, under the 
US measures as currently applied, no requirement for a certificate to the effect that no dolphins have 
been killed or seriously injured outside the ETP".602 
290. The Panel emphasized that:  
… under the DPCIA provisions that are currently applicable all tuna 
products containing tuna caught in a non-ETP fishery using a method 
other than setting on dolphins are e ligible to be labelled dolphin-safe 
without certifying that no dolphin was killed or seriously injured in the set.
603 
291. The Panel concluded that: 
… the US dolphin-safe provisions do not address observed mortality, 
and any resulting adverse effects on dolphin populations, for tuna not 
caught by setting on dolphins or high seas driftnet fishing outside the ETP.
604 
292. From the Panel's findings, it thus appears that the measure at issue does not address adverse 
effects on dolphins resulting from the use of fishing methods predominantly employed by fishing fleets supplying the United States' and other countries' tuna producers.
605  The Panel noted that the 
only requirement currently applicable to purse seine vessels fishing outside the ETP is to provide a 
certification by the captain that no purse seine net w as intentionally deployed on or used to encircle 
dolphins during the fishing trip.  This requirement, however, does not address risks from other fishing 
methods, such as FADs.  As the Panel stated, risk s to dolphins resulting from fishing methods other 
than setting on dolphins "could only be monitored by  imposing a different substantive requirement, 
i.e. that no dolphins were killed or seriously injured in the sets in which the tuna was caught."606   
                                                      
600Panel Report, paras. 7.529, 7.531, and 7.562.  
601Panel Report, para. 7.562. 
602Panel Report, para. 7.532.  
603Panel Report, para. 7.534. (original emphasis)  We note that the measure at issue does address 
driftnet fishing in the high seas. 
604Panel Report, para. 7.621.  
605Panel Report, para. 7.534 and footnote 767 thereto.  
606Panel Report, para. 7.561.   WT/DS381/AB/R 
 Page 113 
 
 
293. Before the Panel and on appeal, the United St ates has argued that the US "dolphin-safe" 
labelling provisions reflect the fact that the lowe r likelihood that a dolphin may be killed or seriously 
injured in a fishery outside the ETP must be ba lanced against the additional burden imposed by 
conditioning the use of a "dolphin-safe" label on a certification based on an independent observer's 
statement.607  The United States further argues that the imposition of a condition that an observer 
certify that no dolphins were killed or seriously in jured on a particular fishing trip outside the ETP 
"would have significant monetary and infrastructure implications for most nations whose vessels fish 
for tuna outside the ETP and export to the United States".608  We understand the United States to 
suggest that, at least in part due to such cost s, it does not impose a certification requirement with 
respect to fisheries outside the ETP. 
294. The Panel found these arguments unpersuasive.  It noted that this argument was inconsistent 
with the United States' own explanation that the me asure at issue already imposes a requirement that 
no dolphins be killed or seriously inju red if an alternative label is used.609  The Panel stated:  
We fail to see, however, how the cost of demonstrating compliance 
with the same requirement (i.e. that no dolphin was killed or seriously injured) would justify that no such requirement be imposed with respect to the use of an official label, while it would be imposed 
for the same tuna caught in the same  conditions in the same fisheries, 
in the case of use of an alternative la bel.  It is also not clear to us 
what the imposition of this additi onal requirement means in practice 
in respect of the alternative label, if it is assumed that it cannot be verified and that this is a reason not to impose it for the use of the 
official label.
610 
295. The Panel further noted that the provisions of  the DPCIA themselves envisage the possibility 
that a fishery outside the ETP would be identified as one having a "regular and significant mortality, 
or serious injury of dolphins", which would then  lead to the application in such fishery of a 
requirement to certify that no dolphin has been kille d or seriously injured on the trip on which the 
tuna was caught.611 
296. We see no error in the Panel's assessment.  In addition, we note that nowhere in its reasoning 
did the Panel state that imposing a requirement that  an independent observer certify that no dolphins 
were killed or seriously injured in the course of th e fishing operations in which the tuna was caught 
would be the only way for the United States to calibrate its "dolphin-safe" labelling provisions to the 
                                                      
607United States' appellant's submission, para. 116.  
608United States' appellant's submission, para. 116. 
609Panel Report, para. 7.541.  
610Panel Report, para. 7.541.  
611Panel Report, para. 7.543.  WT/DS381/AB/R 
Page 114  
 
risks that the Panel found were posed by fishing techniques other than setting on dolphins.
612  We 
note, in this regard, that the measure at issue itsel f contemplates the possibility that only the captain 
provide such a certification under certain circumstances.613 
297. In the light of the above, we conclude that the United States has not demonstrated that the 
difference in labelling conditions for tuna products containing tuna caught by setting on dolphins in 
the ETP, on the one hand, and for tuna products c ontaining tuna caught by other fishing methods 
outside the ETP, on the other hand, is "calibrated"  to the risks to dolphins arising from different 
fishing methods in different areas of the ocean.  It  follows from this that the United States has not 
demonstrated that the detrimental impact of the US measure on Mexican tuna products stems 
exclusively from a legitimate regulatory distinction.   We note, in particular, that the US measure fully 
addresses the adverse effects on dolphins resulti ng from setting on dolphins in the ETP, whereas it 
does "not address mortality (observed or unobserved)  arising from fishing methods other than setting 
on dolphins outside the ETP".614  In these circumstances, we are not persuaded that the United States 
has demonstrated that the measure is even-handed in the relevant respects, even accepting that the 
fishing technique of setting on dolphins is particularly harmful to dolphins.  
3. Conclusion under Article 2.1 of the TBT Agreement  
298. In the light of uncontested facts and factual fi ndings made by the Panel, we consider that 
Mexico has established a prima facie  case that the US "dolphin-safe" labelling provisions modify the 
conditions of competition in the US market to th e detriment of Mexican tuna products and are not 
even-handed in the way in which they address the risks to dolphins arising from different fishing 
techniques in different areas of the ocean.  We cons ider further that the United States has not met its 
burden of rebutting this prima facie  case.  Since we are not persuaded that the Panel acted 
inconsistently with Article 11 of the DSU in re viewing the evidence and arguments before it, we 
accept the Panel's conclusions that the use of cert ain tuna fishing methods other than setting on 
                                                      
612We note, however, that such a requirement may be  appropriate in circumst ances in which dolphins 
face higher risks of mort ality or serious injury. 
613See DPCIA, subsection 1385(d)(1)(D): 
(D) by a vessel in a fishery other than one described in 
subparagraph (A), (B), or (C) that is identified by the Secretary as having a 
regular and significant mortality or serious injury of dolphins, unless such 
product is accompanied by a written st atement executed by the captain of 
the vessel and an observer participating in a national or international program acceptable to the Secretary that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the tuna 
were caught, provided that the Secretary determines that such an observer 
statement is necessary . (emphasis added)  
614Panel Report, para. 7.544.  We note that the measure at issue does address driftnet fishing in the high 
seas.  WT/DS381/AB/R 
 Page 115 
 
 
dolphins "outside the ETP may produce and has produced significant levels of dolphin bycatch"615 
and that "the US dolphin-safe provisions do not ad dress observed mortality, a nd any resulting adverse 
effects on dolphin populations, for tuna not caught by setting on dolphins or high seas driftnet fishing 
outside the ETP."616  Thus, in our view, the United States has not justified as non-discriminatory 
under Article 2.1 the different requirements that it a pplies to tuna caught by setting on dolphins inside 
the ETP and tuna caught by other fishing methods ou tside the ETP for access to the US "dolphin-safe" 
label.  The United States has thus not demonstrated that the detrimental impact of the US measure on 
Mexican tuna products stems exclusively from a legitimate regulatory distinction. 
299. For these reasons, we reverse  the Panel's finding, in paragra phs 7.374 and 8.1(a) of the Panel 
Report, that the US "dolphin-safe" labelling provisions  are not inconsistent with Article 2.1 of the 
TBT Agreement .  We find, instead, that the US "dolphin-safe" labelling provisions provide "less 
favourable treatment" to Mexican tuna products th an that accorded to tuna products of the 
United States and tuna products originating in ot her countries and are therefore inconsistent with 
Article 2.1 of the TBT Agreement .  
E. Mexico's Claims under Article 11 of the DSU 
300. We note that Mexico also advances an appeal under Article 11 of the DSU in relation to the 
Panel's assessment of Mexico's claims under Article 2.1 of the TBT Agreement .  In particular, Mexico 
alleges that Panel acted inconsistently with Article  11 of the DSU by failing to consider evidence put 
forward by Mexico that it was impossible for the Mexi can tuna industry to change its fishing practices 
to adapt to the US "dolphin-safe" labelling provisions.617  Mexico further contends that the Panel 
acted inconsistently with Article 11 of the DSU in  finding that it was not clear that the AIDCP label 
had value to retailers and that retaile rs had similar perceptions to canneries.618  We have already found 
that the Panel erred in finding that Mexico failed to establish that the measure at issue is inconsistent 
with the United States' obligations under Article 2.1 of the TBT Agreement .  Therefore, in order to 
resolve this dispute, we need not determine whether, in assessing Mexico's claims under that 
provision, the Panel also failed to satisfy its obligations under Article 11 of the DSU. 
                                                      
615Panel Report, para. 7.531.  
616Panel Report, para. 7.621.  
617Mexico's other appellant's submission, para. 149. 
618Mexico's other appellant's submission, paras. 163 and 164 (referring to Panel Report, paras. 7.568, 
2.1(c), 4.24, 7.13, and 7.23;  and Declaration of John F. Turner, filed as exhibit to Federal Defendants' 
Opposition to Plaintiffs' Motion for Preliminary Injunction, in Earth Island Institute v. Evans , Case No. C-99-
3892-TEH (Panel Exhibit MEX-34), MEX-58 (BCI), and MEX-100 (BCI)). WT/DS381/AB/R 
Page 116  
 
VII. Article 2.2 of the TBT Agreement 
301. We turn next to the United States' appeal of the Panel's finding that the measure at issue is 
more trade restrictive than necess ary to fulfil the legitimate objectiv es pursued by the United States, 
and that, therefore, the measure is in consistent with Article 2.2 of the TBT Agreement .  The 
United States alleges that the Panel erred in its application of Article 2.2 of the TBT Agreement  and 
failed to make an objective assessment of the matter before it as required pursuant to Article 11 of the 
DSU.  Mexico raises a conditional other appeal with respect to the Panel's finding under Article 2.2 of 
the TBT Agreement . 
A. The Panel's Findings 
302. The Panel concluded that the measure at issu e is inconsistent with Article 2.2 of the 
TBT Agreement , because it is more trade restrictive than  necessary to fulfil the legitimate objectives 
pursued by the United States, taking account of the risks non-fulfilment would create.  This conclusion is based on a number of intermediate findings by the Panel.  First, the Panel assessed the United States' objectives based on the description of those objectives by both parties, as well as on the 
basis of the design, structure, and characteristics of the measure at issue, and found the objectives to 
be the following: 
(a) "ensuring that consumers are not misled or deceived about whether tuna products 
contain tuna that was caught in a manner that adversely affects dolphins"
619 (the 
"consumer information objective");  and 
(b) "contributing to the protection of dolphins, by ensuring that the US market is not used 
to encourage fishing fleets to catch t una in a manner that adversely affects 
dolphins"620 (the "dolphin protection objective"). 
303. The Panel then ascertained whether these objectiv es are "legitimate" within the meaning of 
Article 2.2 of the TBT Agreement .  The Panel noted that the elaboration of legitimate objectives is the 
prerogative of the Member establishing a measure.  The Panel also recalled the Appellate Body's 
finding in US – Gambling  that a panel is not bound by a Member's characterization of the objectives 
of its own measures, but that a panel must make su ch characterization in an independent and objective 
fashion, based on the ev idence in the record.621  The Panel also recalled the Appellate Body's finding 
in EC – Sardines  that there must be an examination and a determination on the legitimacy of the 
                                                      
619Panel Report, paras. 7.401 and 7.413. 
620Panel Report, paras. 7.401 and 7.425. 
621Panel Report, para. 7.405 (referring to Appellate Body Report, US – Gambling , para. 304).  WT/DS381/AB/R 
 Page 117 
 
 
objectives of the measures.622  The Panel considered the list of le gitimate objectives in Article 2.2 and 
found that the consumer information objective falls  within the broader goal of preventing deceptive 
practices, and that the dolphin protection objectiv e may be understood as intended to protect animal 
life or health or the environment.623  Accordingly, the Panel found "that the objectives of the 
US dolphin-safe provisions, as described by the United States and ascertained by the Panel, are 
legitimate" within the meaning of Article 2.2 of the TBT Agreement .624 
304. The Panel then assessed whether the measure at is sue is more trade restrictive than necessary 
to achieve the United States' objectives.  The Panel stated that, in order to do so, it would assess "the 
manner in which and the extent to which the meas ures at issue fulfil their objectives, taking into 
account [the] Member's chosen level of protectio n, and compare this with a potential less trade 
restrictive alternative measure, in order to de termine whether such alternative measure would 
similarly fulfil the objectives pursu ed by the technical regulation at the Member's chosen level of 
protection."625  The Panel further stated that, "[t]o the exte nt that a measure is capable of contributing 
to its objective, it would be more trade-restrictive th an necessary if an alternative measure that is less 
trade-restrictive is reasonably available, that w ould achieve the challenged measure's objective at the 
same level."626 
305. Turning to the measure at issue, the Panel assessed whether the US " dolphin-safe" labelling 
provisions fulfil the consumer information objectiv e and whether, as Mexico claimed, this objective 
could also be fulfilled by allowing the AIDCP label to  coexist with the US "dolphin-safe" label in the 
US market.  The Panel found that the measure at  issue could only partially fulfil the consumer 
information objective, because, inter alia , under the US "dolphin-safe" label, consumers might be 
misled into thinking that a tuna product did not in volve injury or killing of dolphins, even though this 
may in fact have been the case.627  The Panel considered that allowing compliance with the 
"dolphin-safe" labelling requirements of the AIDCP in conjunction with the existing 
US "dolphin-safe" label would be a less trade restri ctive alternative that would achieve a level of 
protection equivalent to that of the measure at i ssue.  Accordingly, the Panel concluded that the 
measure at issue is more trade restrictive th an necessary to fulfil the consumer information 
objective.628 
                                                      
622Panel Report, para. 7.436 (quoting Appellate Body Report, EC – Sardines , para. 286). 
623Panel Report, para. 7.437. 
624Panel Report, para. 7.444. 
625Panel Report, para. 7.465. 
626Panel Report, para. 7.465. 
627Panel Report, paras. 7.563 and 7.564. 
628Panel Report, paras. 7.577 and 7.578. WT/DS381/AB/R 
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306. The Panel subsequently considered whether the measure at issue fulfils the dolphin protection 
objective and whether this objective could also be fulfilled by allowing the AIDCP label to coexist 
with the US "dolphin-safe" label in the US market .  The Panel concluded that the measure at issue 
could "at best, only partially fulfil [its] stated obj ective of protecting dolphins".  The Panel reasoned 
that, although the measure was capable of protectin g dolphins within the ETP, in other fisheries the 
measure was "capable of achieving [its] objective only in relation to the practices of setting on 
dolphins and using high seas driftnets" , and "in relation to all other fishing techniques used outside the 
ETP" the measure is "not able to contribute to the protection of dolphins".
629 
307. The Panel noted that significant dolphin morta lity arises outside the ETP from the use of 
fishing techniques other than setting on dolphins.630  The Panel considered that, "in some cases, the 
risks arising from setting on dolphins under controlled circumstances may be lower than the risks 
arising from other fishing techniques applied wit hout controlling for dolphin mortality or other 
adverse impacts."631  The Panel considered that "the altern ative suggested by Mexico does not seem to 
create greater risks to dolphins in the ETP th an those accepted by the United States under the 
challenged measures in relation to other fishing techniques used outside the ETP."632  Thus, the Panel 
found that "Mexico's alternative would achieve a le vel of protection equal to that achieved by the 
US dolphin-safe provisions outside the ETP".633  Recalling its earlier conclusion that Mexico's 
alternative "is less trade-restrictive than the US dol phin-safe provisions", the Panel found that Mexico 
had identified a reasonably available less trade-restri ctive alternative that would achieve the dolphin 
protection objective at the same level as the measure at issue.634 
308. Consequently, in relation to both the c onsumer information objective and the dolphin 
protection objective, the Panel found the measure at issue to be more trade restrictive than necessary 
to fulfil its legitimate objectives and thus inconsistent with Article 2.2 of the TBT Agreement .635 
B. The United States' Appeal 
309. On appeal, the United States requests the Appe llate Body to revers e this finding.  The 
United States claims that the Panel erred in its application of Article 2.2 of the TBT Agreement  when 
it found that the US "dolphin-safe" labelling provisions  are more trade restri ctive than necessary to 
fulfil their legitimate objectives.  The United States also alleges that, in asses sing the evidence relating 
                                                      
629Panel Report, para. 7.599. 
630Panel Report, para. 7.613. 
631Panel Report, para. 7.615. 
632Panel Report, para. 7.618. 
633Panel Report, para. 7.618. 
634Panel Report, para. 7.619. 
635Panel Report, para. 7.620.  WT/DS381/AB/R 
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to the extent to which the United States' measure fulfils the United States' objectives, the Panel failed 
to make an objective assessment of the matter befo re it as required under Article 11 of the DSU.  In 
addition, the United States raises a claim under Article 11 of the DS U with respect to the Panel's 
finding that the alternative measure proposed by Mexi co would be a less trade-restrictive alternative. 
310. In response, Mexico argues that the Appellate Body should uphold the Panel's finding that the 
US "dolphin-safe" labelling provisions are more trade restrictive than necessary to fulfil their 
legitimate objectives and are therefore in consistent with Article 2.2 of the TBT Agreement .  According 
to Mexico, the Panel's finding is correct because th e United States' objectives can be fulfilled with a 
less trade-restrictive alternative measure, namely, allowing the AIDCP label and the 
US "dolphin-safe" label to coexist in the US market. 
1. Article 2.2 of the TBT Agreement  
311. We begin by considering the text of Article 2.2 of the TBT Agreement , which provides: 
Members shall ensure that technical regulations are not prepared, 
adopted or applied with a view to or with the effect of creating 
unnecessary obstacles to international trade.  For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.  Such legitimate objectives are, 
inter alia:    national security requirements;  the prevention of 
deceptive practices;  protection of human health or safety, animal or plant life or health, or the environment.  In assessing such risks, relevant elements of consideration are, inter alia:   available scientific 
and technical information, relate d processing technology or intended 
end-uses of products. 
312. The first sentence of Article 2.2 requires WTO Members to ensure that their technical 
regulations are not prepared, adopted, or applied w ith a view to, or with the effect of, creating 
unnecessary obstacles to international trade.  The sec ond sentence explains that "[f]or this purpose, 
technical regulations shall not be more trade restrict ive than necessary to fulfil a legitimate objective, 
taking account of the risks non-fulfilment would creat e".  We will address the different elements set 
out in the text of Article 2.2 in turn below, in particular the meaning of the terms "legitimate 
objective" and "fulfilment", as well as of the phrases "not … more trade-restrictive than necessary" 
and "taking account of the risks non-fulfilment would create". 
313. Considering, first, the meaning of the term "leg itimate objective" in the sense of Article 2.2 of 
the TBT Agreement , we note that the word "objective" describ es a "thing aimed at or sought;  a target, WT/DS381/AB/R 
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a goal, an aim".
636  The word "legitimate", in turn, is de fined as "lawful;  justifiable;  proper".637  
Taken together, this suggests that a "legitimate objective" is an aim or target that is lawful, justifiable, 
or proper.  Furthermore, the use of the words " inter alia " in Article 2.2 suggests that the provision 
does not set out a closed list of legitimate objectives, but rather lists several examples of legitimate objectives.  We consider that those objectives e xpressly listed provide a reference point for which 
other objectives may be considered to be legitimate in  the sense of Article 2.2.  In addition, we note 
that the sixth and seventh recitals of the preamble of the TBT Agreement  specifically recognize several 
objectives, which to a large extent overlap with the objectives listed in Article 2.2.  Furthermore, we 
consider that objectives recognized in the provisi ons of other covered agreements may provide 
guidance for, or may inform, the analysis of what  might be considered to be a legitimate objective 
under Article 2.2 of the TBT Agreement . 
314. Accordingly, in adjudicating a claim under Article 2.2 of the TBT Agreement , a panel must 
assess what a Member seeks to achieve by means of a technical regulation.  In doing so, it may take 
into account the texts of statutes, legislative hist ory, and other evidence regarding the structure and 
operation of the measure.  A panel is not bound by a Member's characterizati on of the objectives it 
pursues through the measure, but must independently and objectively assess them.
638  Subsequently, 
the analysis must turn to the question of whether a particular objective is legitimate, pursuant to the 
parameters set out above. 
315. Next, we consider the meaning of the word "f ulfil" in the context of the phrase "fulfil a 
legitimate objective" in Article 2.2 of the TBT Agreement .  We note, first, that the word "fulfil" is 
defined as "provide fully with what is wished for".639  Read in isolation, the word "fulfil" appears to 
describe complete achievement of something.  But, in Article 2.2, it is used in the phrase "to fulfil a 
legitimate objective" and, as described above, the word "objective" means "a target, goal, or aim".  As 
we see it, it is inherent in the notion of an "objec tive" that such a "goal, or aim" may be something 
that is pursued and achieved to a greater or lesser degree.  Accordingly, we consider that the question 
of whether a technical regulation "fulfils" an objec tive is concerned with the degree of contribution 
that the technical regulation makes toward the achievement of the legitimate objective. 
316. We see support for this reading of  the term "fulfil a legitimate objective" in the sixth recital of 
the preamble of the TBT Agreement , which provides relevant context for the interpretation of 
                                                      
636Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 1970. 
637Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1577. 
638See Appellate Body Report, US – Gambling , para. 304. 
639Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1053.  WT/DS381/AB/R 
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Article 2.2.  It recognizes that a Member shall not be prevented from taking measures necessary to 
achieve its legitimate objectives "at the levels it consid ers appropriate", subject to the requirement that 
such measures are not applied in a manner that woul d constitute a means of arbitrary or unjustifiable 
discrimination between countries where the same c onditions prevail or a disguised restriction on 
international trade, and are ot herwise in accordance with the TBT Agreement .  As we see it, a 
WTO Member, by preparing, adopting, and applyi ng a measure in order to pursue a legitimate 
objective, articulates either implicitly  or explicitly the level at which it seeks to pursue that particular 
legitimate objective. 
317. A panel adjudicating a claim under Article 2.2 of the TBT Agreement  must seek to ascertain to 
what degree, or if at all640, the challenged technical regulati on, as written and applied, actually 
contributes to the legitimate objective pursued by the Member.  The degree of achievement of a 
particular objective may be discerned from the desi gn, structure, and operation of the technical 
regulation, as well as from evidence relating to the a pplication of the measure.  As in other situations, 
such as, for instance, when determining the cont ribution of a measure to the achievement of a 
particular objective in the context of Article  XX of the GATT 1994, a panel must assess the 
contribution to the legitimate objective actually achieved by the measure at issue.641 
318. We turn next to the terms "unnecessary obstacles to  international trade" in the first sentence 
and "not … more trade-restrictive than necessar y" in the second sentence of Article 2.2 of the 
TBT Agreement .  Both the first and second sentence of Article 2.2 refer to the notion of "necessity".  
These sentences are linked by the terms "[f]or this purpose", which suggests that the second sentence 
qualifies the terms of the first sentence and elaborates on the scope and meaning of the obligation contained in that sentence.  The Appellate Body h as previously noted that the word "necessary" refers 
to a range of degrees of necessity, dependi ng on the connection in which it is used.
642  In the context 
of Article 2.2, the assessment of "necessity" involves a relational analysis of the trade-restrictiveness 
of the technical regulation, the degree of contributi on that it makes to the achievement of a legitimate 
objective, and the risks non-fulfilment would create.  We consider, therefore, that all these factors 
                                                      
640This may involve an assessment of whether the measure at issue is capable of achieving the 
legitimate objective. 
641Appellate Body Report, China – Publications and Audiovisual Products , para. 252. 
642The Appellate Body further noted that:  "[a]t one end of this continuum lies 'necessary' understood as 
'indispensable'; at the other end, is 'necessary' taken to mean as 'making a contribution to.'" (Appellate Body 
Report, Korea – Various Measures on Beef , para. 161) WT/DS381/AB/R 
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provide the basis for the determination of what is to be considered "necessary" in the sense of 
Article 2.2 in a particular case.
643 
319. What has to be assessed for "necessity" is the trad e-restrictiveness of the measure at issue.  
We recall that the Appellate Body has understood th e word "restriction" as something that restricts 
someone or something, a limitation on action, a li miting condition or regulation.  Accordingly, it 
found, in the context of Article XI:2(a) of the GATT 1994, that the word "restriction" refers generally 
to something that has a limiting effect.644  As used in Article 2.2 in co njunction with the word "trade", 
the term means something having a limiting effect on trade.  We recall that Article 2.2 does not 
prohibit measures that have any trade-restrictive effe ct.  It refers to "unnecessary obstacles" to trade 
and thus allows for some trade-restrictiveness;  mo re specifically, Article 2.2 stipulates that technical 
regulations shall not be "more trade-restrictive than necessary to fulfil a legitimate objective".  
Article 2.2 is thus concerned with restrictions on international trade that ex ceed what is necessary to 
achieve the degree of contribution that a technical regulation makes to the achievement of a legitimate 
objective. 
320. The use of the comparative "more … than" in th e second sentence of Article 2.2 suggests that 
the existence of an "unnecessary obstacle[] to inte rnational trade" in the first sentence may be 
established on the basis of a comparative analysis of the above-mentioned factors.  In most cases, this 
would involve a comparison of the trade-restrictiveness and the degree of achievement of the objective by the measure at issue with that of po ssible alternative measures that may be reasonably 
available and less trade restrictive than the challenged measure, taking account of the risks 
non-fulfilment would create.
645  The Appellate Body has clarified that a comparison with reasonably 
available alternative measures is a conceptual tool for the purpose of ascertaining whether a 
challenged measure is more trade restrictive than necessary. 
321. Article 2.2 of the TBT Agreement further stipulates that the risks non-fulfilment of the 
objective would create shall be taken into account, and that, in assessing such risks, relevant elements 
of consideration are " inter alia : available scientific and technical information, related processing 
technology or intended end-uses of products".  As we  see it, the obligation to consider "the risks 
non-fulfilment would create" suggests that the comp arison of the challenged measure with a possible 
                                                      
643Similarly, in the context of Article XX of the GATT 1994 and Article XIV of the GATS, "necessity" 
is determined on the basis of "weighing and balancing" a number of factors. (Appellate Body Report,  
Brazil – Retreaded Tyres , para. 178;  Appellate Body Report, US – Gambling , paras. 306-308) 
644The Appellate Body addressed this question in the context of Article XI:2(a) of the GATT 1994 in 
Appellate Body Reports, China – Raw Materials , para. 319. 
645Similarly, the Appellate Body has held that in order to establish "necessity" in the context of 
Article XX of the GATT 1994 and Article XIV of the GATS, a comparison of a measure found to be 
inconsistent and reasonably available less trade-restrictiv e alternatives should be undertaken. (See, for instance, 
Appellate Body Report, Korea – Various Measures on Beef , para. 166)  WT/DS381/AB/R 
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alternative measure should be made in the light of the nature of the risks at issue and the gravity of the 
consequences that would arise from non-fulfilment of the legitimate objective.  This suggests a further 
element of weighing and balancing in the determin ation of whether the trade-restrictiveness of a 
technical regulation is "necessary" or, alternatively,  whether a possible alternative measure, which is 
less trade restrictive, would make an equivalent contribution to the releva nt legitimate objective, 
taking account of the risks non-fulfilment would create, and would be reasonably available.646 
322. In sum, we consider that an assessment of whether a technical regulation is "more 
trade-restrictive than necessary" with in the meaning of Article 2.2 of the TBT Agreement involves an 
evaluation of a number of factors.  A panel should begin by considering factors that include:  (i) the degree of contribution made by the measure to the legitimate objective at issue;  (ii) the 
trade-restrictiveness of the measure;  and (iii) the nature of the risks at issue and the gravity of 
consequences that would arise from non-fulfilment of the objective(s) pursued by the Member 
through the measure.  In most cases, a comparison of the challenged measure and possible alternative measures should be undertaken.
647  In particular, it may be relevant for the purpose of this comparison 
to consider whether the proposed alternative is less trade restrictive, whether it would make an 
equivalent contribution to the relevant legitimat e objective, taking account of the risks non-fulfilment 
would create, and whether it is reasonably available. 
323. With respect to the burden of proof in showing that a technical regulation is inconsistent with 
Article 2.2, the complainant must prove its clai m that the challenged measure creates an unnecessary 
obstacle to international trade.648  In order to make a prima facie  case, the complainant must present 
evidence and arguments sufficient to establish that the challenged measure is more trade restrictive 
than necessary to achieve the contribution it makes to the legitimate objectives, taking account of the 
risks non-fulfilment would create.  In making its prima facie  case, a complainant may also seek to 
identify a possible alternative measure that is less tr ade restrictive, makes an equivalent contribution 
to the relevant objective, and is reasonably availabl e.  It is then for the respondent to rebut the 
complainant's prima facie  case, by presenting evidence and arguments showing that the challenged 
measure is not more trade restrictive than necessary  to achieve the contribution it makes toward the 
objective pursued and by demonstrating, for example,  that the alternative measure identified by the 
                                                      
646See also Appellate Body Report, US – Gambling , para. 307. 
647We can identify at least two instances where a co mparison of the challenged measure and possible 
alternative measures may not be required.  For example, it would seem to us that if a measure is not trade 
restrictive, then it may not be inconsistent with Article 2.2.  Conversely, if a meas ure is trade restrictive and 
makes no contribution to the achievement of the legitimate objective, then it may be inconsistent with 
Article 2.2. 
648Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335.  See also 
Appellate Body Report, EC – Sardines , paras. 277-280. WT/DS381/AB/R 
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complainant is not, in fact, "reasonably available", is  not less trade restrictive, or does not make an 
equivalent contribution to the achievement  of the relevant legitimate objective.  
2. The Panel's Application of Article 2.2 
324. We turn next to the review of the Panel's application of Article 2.2 of the TBT Agreement .  
The United States alleges that the Panel erred in finding that the "coexistence" of the 
US "dolphin-safe" label and the AIDCP label provid es a reasonably available, less trade-restrictive 
means of achieving the objectives pursued by the Unite d States at its chosen level.  According to the 
United States, allowing the AIDCP label to coexis t with the US "dolphin-safe" label would not 
address risks to dolphins outside the ETP, since by it s terms it only applies to tuna caught inside the 
ETP.  The United States further points out that the AIDCP label allows the practice of setting on dolphins to catch tuna, which is harmful to dol phins, and would therefore frustrate the dolphin 
protection objective.
649  Moreover, in the United States' view, coexistence of the two labels would be 
confusing for consumers, because the AIDCP and the US official "dolphin-safe" label are virtually 
identical, and consumers would have difficulty appr eciating the difference in what each label signifies 
so as to make an informed decision about the tuna they buy.650  Finally, the United States alleges that 
the Panel erred by implying that the United States is  required to fulfil its objective to the same level 
inside and outside the ETP, regardless of the co sts, and that this approach does not respect 
"well-established approaches to policymaking", such  as weighing costs and benefits, which are also 
consistent with the TBT Agreement .651 
325. In reviewing the Panel's application of Article 2. 2 to the facts of this case, we recall its finding 
that the objectives at issue are, first, "ensuring that consumers are not misled or deceived about 
whether tuna products contain tuna that was ca ught in a manner that adversely affects dolphins"652;  
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".653 
326. Before the Panel, Mexico argued that "a 'r easonably available alternative measure' for the 
United States would be to permit the use in the US market of the AIDCP 'dolphin safe' label."654  It 
was for the Panel, therefore, in assessing Mexico 's claim that the US "dolphin-safe" labelling 
provisions "are more trade-restrictive than necessary" within the meaning of Article 2.2, to examine, 
inter alia , the contribution that the US measure makes to the achievement of its objectives;  the 
                                                      
649United States' appellant's submission, para. 121. 
650United States' appellant's submission, para. 124. 
651United States' appellant's submission, para. 115. 
652Panel Report, paras. 7.413 and 7.401. 
653Panel Report, paras. 7.425 and 7.401. 
654Panel Report, para. 7.566 (referring to Mexico's  response to Panel Question 134, para. 52).  WT/DS381/AB/R 
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trade-restrictiveness of the US "dolphin-safe" labelling provisions;  whether Mexico had identified a 
"reasonably available" and less trade-restrictive alte rnative measure, and to compare the degree of the 
US measure's contribution with that of the alterna tive measure, which is reasonably available and less 
trade restrictive, taking account of the risks non-fulfilment would create. 
327. With respect to the degree to which the measu re at issue contributes to the United States' 
consumer information objective, we recall the Pane l's finding that the measure at issue "can only 
partially ensure that consumers are informed about wh ether tuna was caught by using a method that 
adversely affects dolphins".655  This conclusion is based on the Panel's finding that fishing methods 
other than setting on dolphins or high-sea driftn et fishing outside the ETP may cause adverse effects 
on dolphins, and that to the extent tuna caught under such circumstances may be labelled 
"dolphin-safe" pursuant to the US "dolphin-safe" labelling provisions, consumers may be misled 
about whether tuna was caught using a techni que that does not adversely affect dolphins.656  Similarly, 
regarding the question of the degree to which the measure at issue contributes to the United States' 
dolphin protection objective, the Panel found that the US "dolphin-safe" labelling provisions are 
capable of protecting dolphins by ensuring that th e US market is not used to encourage fishing 
practices that may kill or seriously injure dolphins , only within the ETP.  The Panel further found that, 
in other fisheries, the measure at issue is capable  of achieving its objective only in relation to the 
fishing practices of setting on dolphi ns and of using high seas driftnets, and that, in relation to all 
other fishing techniques used outside the ETP, the m easure at issue is not able to contribute to the 
protection of dolphins.  Accordingly, the Panel conc luded that US "dolphin-safe" labelling provisions 
"may, at best, only partially fulfil their stated objec tive of protecting dolphins by ensuring that the 
US market is not used to encourage fishing fleets to catch tuna in a manner that adversely affects 
dolphins".657 
328. The Panel then considered the extent to whic h the proposed alternative measure would fulfil 
the United States' objectives and concluded, first, wi th respect to the consumer information objective, 
that "the extent to which consumers would be misl ed as to the implications of the manner in which 
tuna was caught would not be greater if the AI DCP label were allowed to co-exist with the 
US dolphin-safe provisions".658  Second, with respect to the dolphin protection objective, the Panel 
found that "allowing compliance with the AIDCP la belling requirements to be advertised on the 
US market would discourage observed dolphin mo rtality resulting from setting on dolphins to the 
same extent as the existing US dolphin-safe provi sions do and would involve no reduction in the level 
                                                      
655Panel Report, para. 7.563. (original emphasis) 
656Panel Report, para. 7.562. 
657Panel Report, para. 7.599. 
658Panel Report, para. 7.573. WT/DS381/AB/R 
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of protection in this respect."
659  It appears to us, however, that the Panel's analysis of whether Mexico 
had demonstrated that the US "dolphin-safe" labe lling provisions are "more trade-restrictive than 
necessary" within the meaning of Article 2.2 was based, at least in part, on an improper comparison.  
With respect to the dolphin protection objectiv e, the Panel contrasted the AIDCP labelling 
requirements with the US "dolphin-safe" labelling pr ovisions, stating that "allowing compliance" with 
the former "to be advertised on the US market would discourage observed dolphin mortality resulting 
from setting on dolphins to the same extent as  the existing US dolphin-safe provisions do".660  
Similarly, with respect to the consumer information objective, the Panel noted, inter alia , that, "under 
the US measures", it is possible that tuna caught du ring a trip where dolphins were in fact killed or 
injured may be labelled "dolphin-safe".661  The Panel compared that to the scenario "under the 
AIDCP", where "a label would only be granted if  no dolphins [were] killed, but where certain 
unobserved adverse effects could nonethel ess have been caused to dolphins".662  This comparison, 
however, fails to take into account that the alternative measure identified by Mexico is not the AIDCP 
regime, as such, but rather the coexistence  of the AIDCP rules with the US measure. 
329. In any event, it would appear that, in respect  of the conditions for labelling as "dolphin-safe" 
tuna products containing tuna harvested outside  the ETP, there is no difference between the measure 
at issue and the alternative measure identifie d by Mexico, namely, the coexistence of the 
US "dolphin-safe" labelling provisions with the AIDC P rules.  We recall that the geographic scope of 
application of the AIDCP rules is limited to the ETP.  Thus, the conditions for fishing outside the ETP 
would be identical under the alternative measure proposed by Mexico, since only those set out in the 
US measure would apply.  Therefore, for fishing activities outside  the ETP, the degree to which the 
United States' objectives are achieved under the alterna tive measure would not be higher or lower than 
that achieved by the US measure, it would be the same.  Inside  the ETP, however, the measure at 
issue and the alternative measure set out different  requirements.  Under the alternative measure 
identified by Mexico, tuna that is caught by setting on dolphins would be eligible for a "dolphin-safe" 
label if the prerequisites of the AIDCP label have been complied with.  By contrast, the measure at 
issue prohibits setting on dolphins, and thus tuna ha rvested in the ETP would only be eligible for a 
"dolphin-safe" label if it was caught by methods other than setting on dolphins. 
330. It would seem, therefore, that the Panel's comparison of the degree to which the alternative 
measure identified by Mexico contributes to the United States' objectives should have focused on the 
conditions inside the ETP.  In particular, for tuna  harvested inside the ETP, the Panel should have 
                                                      
659Panel Report, para. 7.612. 
660Panel Report, para. 7.612. 
661Panel Report, para. 7.573. 
662Panel Report, para. 7.573.  WT/DS381/AB/R 
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examined whether the labelling of tuna products co mplying with the requirements of the AIDCP label 
would achieve the United States' objectives to an equi valent degree as the measure at issue.  We note, 
in this regard, the Panel's finding, undisputed by the participants, that dolphins suffer adverse impact 
beyond observed mortalities from setting on dolphins663, even under the restrictions contained in the 
AIDCP rules.664  Since under the proposed alternative measure tuna caught in the ETP by setting on 
dolphins would be eligible for the "dolphin-safe" labe l, it would appear, therefore, that the alternative 
measure proposed by Mexico would contribute to both the consumer information objective and the 
dolphin protection objective to a lesser degree than th e measure at issue, because, overall, it would 
allow more tuna harvested in conditions that adver sely affect dolphins to be labelled "dolphin-safe".665  
We disagree therefore with the Panel's findings th at the proposed alternative measure would achieve 
the United States' objectives "to the same exte nt" as the existing US "dolphin-safe" labelling 
provisions, and that the extent to which consumers would be misled as to the implications of the 
manner in which tuna was caught "would not be gr eater" under the alternative measure proposed by 
Mexico. 
331. For these reasons, we find that the Panel's co mparison and analysis is flawed and cannot 
stand.  Therefore, the Panel erred in concluding, in paragraphs 7.620 and 8.1( b) of the Panel Report, 
that it has been demonstrated that the measure at issu e is more trade restrictiv e than necessary to fulfil 
the United States' legitimate objectives, taking account of the risks non-fulfilment would create.  
                                                      
663In particular, the Panel considered cow-calf separation;  potential muscle injury resulting from the 
chase;  immune and reproductive system s failures;  and other adverse health consequences for dolphins, such as 
continuous acute stress. (See Panel Report, paras. 7.491-7.506) 
664Panel Report, para. 7.504.  The Panel stated that: 
… it appears that there is a degree of uncertainty in relation to the extent to which setting on dolphins may have an adverse impact on dolphins beyond 
observed mortality.  Nonetheless, we consider that sufficient evidence has 
been put forward by the United States  to raise a presumption that genuine 
concerns exist in this respect.  The information presented to us in this 
respect also suggests that this is a fi eld of research in which the collection 
and analysis of information is inherently difficult, but that efforts have been ongoing to better understand these issues, including in the context of the 
implementation of the DPCIA.  We further note that such effects would 
arise as a result of the chase in itself, and would thus exist even if measures are taken in order to avoid the taking and killing of dolphins in the nets, as is 
the case under the AIDCP. (footnotes omitted) 
665We also note in this regard the Panel's finding in the context of Mexico's claim under Article 2.4 of 
the TBT Agreement .  In particular, the Panel stated: 
Therefore, with the AIDCP label alone, consumers will not be misled or 
deceived about whether dolp hins were killed during the sets in which the 
tuna is caught.  However, to the extent that there might be other adverse 
effects deriving from that fishing method, the AIDCP standard alone would not address them. (Panel Report, para. 7.729);  [and] 
[T]he AIDCP standard, applied alone , would not be an effective or 
appropriate means of fulfilling the US objective of ensuring that consumers are not misled or deceived about whet her tuna products contain tuna that 
was caught in a manner that adversely affects dolphins. 
(Panel Report, para. 7.731) WT/DS381/AB/R 
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Accordingly, we reverse  the Panel's findings that the measure at issue is inconsistent with Article 2.2 
of the TBT Agreement . 
332. The United States has raised an additional clai m that the Panel acted inconsistently with 
Article 11 of the DSU in its assessment of the eviden ce relating to the extent to which the US measure 
fulfils a legitimate objective.  In particular, the Un ited States takes issue with the Panel's finding that 
the risks to dolphins outside the ETP from fishing methods other than setting on dolphins "are not 
lower than similar risks f aced by dolphins in the ETP"
666, and the finding that the Panel was not 
persuaded that "at least some of  the dolphin populations affected by fishing techniques other than 
setting on dolphins are not facing risks at least equivalent to those currently faced by dolphin 
populations in the ETP under AIDCP monitoring."667 
333. We have concluded that the Panel erred in fi nding that it has been demonstrated that the 
US measure is more trade restrictive than necessa ry within the meaning of Article 2.2 of the 
TBT Agreement .  Having reversed this finding, we do not find it necessary to address the 
United States' additional claim that the Panel acted inconsistently with its obligations under Article 11 
of the DSU.668 
C. Other Appeal by Mexico 
334. Mexico raises two claims in its conditional a ppeal with respect to the Panel's finding under 
Article 2.2 of the TBT Agreement .  Each of these claims is conditional upon the Appellate Body 
reversing the Panel's finding that the measure at issue is inconsistent with Article 2.2 of the 
TBT Agreement .  First, Mexico requests that we reverse the Panel's intermediate finding that the 
United States' objective of contributing to the protecti on 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 is a 
legitimate objective, and that we find, instead, that  it is not a legitimate objective within the meaning 
of Article 2.2.669  In the alternative, Mexico requests th at we find the measure at issue to be 
inconsistent with Article 2.2 based on the Panel's earlier finding that the US measure did not entirely 
fulfil the United States' objectives.670 
335. With respect to its first claim, Mexico submits that the Panel erred in finding the 
United States' dolphin protection objective to be a leg itimate objective.  Mexico maintains that the list 
of examples of legitimate objectives in Article 2.2 of the TBT Agreement informs the interpretation of 
                                                      
666United States' appellant's submission, para. 93 (referring to Panel Report, para. 7.562). 
667United States' appellant's submission, para. 93 (referring to Panel Report, para. 7.617). 
668See also Appellate Body Report, US – Upland Cotton , para. 695. 
669Mexico's other appellant's submission, para. 278. 
670Mexico's other appellant's submission, para. 284.  WT/DS381/AB/R 
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the term "legitimate objective" in that provision and points out that none of the listed objectives 
include language similar to "by ensuring that the US market is not used to encourage" or other 
language reflecting a "coercive an d trade-restrictive objective".671  However, for Mexico, the 
United States' dolphin protection objective is a "coe rcive objective" because its purpose is to "coerce" 
another WTO Member to change its practices to comp ly with a unilateral policy of the United States.  
Moreover, Mexico alleges that the dolphin protect ion objective is unnecessary, and constitutes a 
means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.  Mexico asserts 
that the situation in US – Gasoline  is "closely analogous" to the s ituation in the present case, where 
the United States has disregarded a multilateral agr eement that addresses the same subject matter as 
the measure at issue.672 
336. We have reversed the Panel's finding that the measu re at issue is inconsistent with Article 2.2 
of the TBT Agreement .  Thus, the condition of Mexico's other appeal with respect to the Panel's 
findings under Article 2.2 is fulfilled and, accordingl y, we consider Mexico's arguments with respect 
to the Panel's findings under Article 2.2 of the TBT Agreement . 
337. At the outset, we recall that the United States' dolphin protection objective is phrased as 
follows:  "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".673  Mexico does 
not claim that "contributing to the protection of dolphins" is an illegitimate objective;  instead, Mexico argues that it is illegitimate to pursue this  objective "by ensuring that the US market is not 
used to encourage" certain fishing practices.  It thus appears to us  that Mexico does not take issue 
with the United States' dolphin protection objective per se , but with the means used in pursuance of 
this objective. 
338. Article 2.2 of the TBT Agreement recognizes that a technical regulation shall not create 
"unnecessary obstacles" to international trade.   The provision thus envisages that some 
trade-restrictiveness may arise from a technical regul ation.  However, the technical regulation would 
not be inconsistent with Article 2.2 unless it is found to constitute an "unnecessary obstacle[] to 
international trade".  Hence, the mere fact that a WTO Member adopts a measure that entails a burden 
on trade in order to pursue a particular objective cannot per se  provide a sufficient basis to conclude 
that the objective that is being pursued is not  a "legitimate objective" within the meaning of 
Article 2.2. 
                                                      
671Mexico's other appellant's submission, para. 271. 
672Mexico's other appellant's submission, para. 275 (referring to Appellate Body Report,  
US – Gasoline , p. 25, DSR 1996:1, 3, at 23). 
673Panel Report, paras. 7.401 and 7.425. WT/DS381/AB/R 
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339. We note Mexico's argument that the United States' dolphin protection objective is 
unnecessary, and constitutes a means of arbitrary or  unjustifiable discrimination or a disguised 
restriction on trade
674, and is therefore inconsistent with the sixth recital of the preamble of the 
TBT Agreement .675  According to the sixth recital, what mu st not be applied in a manner that would 
constitute a means of arbitrary or unjustifiabl e discrimination between countries where the same 
conditions prevail or a disguised rest riction on international trade is a measure , and not the objective 
pursued by the technical regulation. 
340. We now turn to Mexico's second ground of app eal.  Mexico alleges that the Panel erred in 
proceeding to examine whether there was a less trade- restrictive alternative measure after it had found 
that the measure at issue could, at best, only pa rtially fulfil the two United States' objectives.  For 
Mexico, it is not possible to find that there is a less trade-restrictive alternativ e measure that fulfils the 
objectives when the measure at issue itself does not fulfil the objectives.  In addition, it would be 
impossible to take "account of the risks non-fulfilmen t would create" if, in fact, non-fulfilment already 
exists with the measure at issue.   Mexico argues that, upon concludi ng that the US "dolphin-safe" 
labelling provisions did not fulfil the two United St ates' objectives, the Panel's analysis should have 
ended and it should have found that the US "dolphin-safe" labelling provi sions were inconsistent with 
Article 2.2.676 
341. Mexico's allegation of error is based on its cont ention that it is not possible to find that there 
is a less trade-restrictive alternative measure th at fulfils the United States' objectives when the 
measure at issue itself does not fulfil the objectives.677  We note, however, that the Panel found, with 
respect to the United States' consumer informatio n objective, that the measure at issue "can only 
partially ensure that consumers are informed about wh ether tuna was caught by using a method that 
adversely affects dolphins".678  Similarly, with respect to the United States' dolphin protection 
objective, the Panel found that the US "dolphin-safe" labelling provisions "may, at best, only partially 
fulfil their stated objective".679  The Panel did not find that the US "dolphin-safe" labelling provisions 
do not fulfil their objectives or are not "capable" of fulfilling the United States' objectives680, but that 
the US measure did fulfil the United States' objectives to  a certain extent.  We have stated above that 
                                                      
674Mexico's other appellant's submission, para. 272. 
675Mexico submits that the situation in the present dispute is similar to the factual situation in  
US – Shrimp , in that the US "dolphin-safe" labelling provisions have created a "rigid and unbending standard", 
and that the purpose of the measure at issue is to "unilaterally and extraterritorially impose U.S. fishing method 
requirements" as a condition for access to  the principal distribution channels  in the US tuna products market. 
(Mexico's appellee's submission, paras. 178-186) 
676Mexico's other appellant's submission, paras. 279-284. 
677Mexico's other appellant's submission, para. 282. 
678Panel Report, para. 7.563. (original emphasis) 
679Panel Report, para. 7.599. 
680Mexico's other appellant's submission, para. 282.  WT/DS381/AB/R 
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the question of whether a technical regulation "fulfi ls" an objective is concerned with the degree of 
contribution that the technical regulation makes towa rd the achievement of the legitimate objective.  
An assessment of the necessity of a measure's trad e-restrictiveness under Article 2.2 therefore focuses 
on the extent to which a measure c ontributes to the objective pursued. 
342. In sum, therefore, we reject Mexico's claim that the Panel erred in finding the United States' 
dolphin protection objective to be a legitimate objective and we also reject Mexico's request to find 
the measure at issue inconsiste nt with Article 2.2 of the TBT Agreement  based on the Panel's finding 
that the measure did not entirely fulfil its objectives. 
VIII.  Article 2.4 of the TBT Agreement  
A. Introduction 
343. The United States and Mexico each appeal differe nt elements of the Panel's findings under 
Article 2.4 of the TBT Agreement .  The United States appeals the Panel's finding that the "AIDCP 
dolphin-safe definition and certification" constitute a "relevant international standard" within the 
meaning of Article 2.4 of the TBT Agreement .681  In particular, the United States appeals the Panel's 
intermediate finding that the AIDCP constitutes an "international standardizing organization" for the 
purposes of Article 2.4 of the TBT Agreement .682  Mexico appeals the Panel's conclusion that Mexico 
failed to demonstrate that the AIDCP standard683 is an effective and appropriate means to fulfil the 
objectives pursued by the United States.684 
344. The Panel interpreted the term "interna tional standard" in Article 2.4 of the TBT Agreement to 
mean a "standard that is adopted by an interna tional standardizing/standards organization and made 
available to the public".685  The Panel in turn interpreted th e term "international standardizing 
organization" to refer to "a legal or administrativ e entity based on the membership of other bodies or 
individuals that has an establishe d constitution and its own administ ration, has recognized activities in 
standardization, and whose membership is open to  the relevant national body of every country."686  
                                                      
681Panel Report, para. 7.707.  
682Panel Report, para. 7.693.  
683In our discussion, we use the term "AIDCP standard" to describe what the Panel referred to as the 
"AIDCP dolphin-safe definition and ce rtification", the AIDCP "dolphin-safe definition", the "AIDCP standard", 
and the "AIDCP dolphin-safe standard".  The question of what the Panel found to be the AIDCP standard was 
contested among the parties on appeal.  Our use of the term "AIDCP standard" is without prejudice to the 
substantive issue of whether the term "AIDCP standard" refers merely to the AIDCP "dolphin-safe" definition or to the "system" for the tracking and "dolphin-safe" certification of tuna and tuna products established under 
the AIDCP. (See Mexico's other appellant's submission, paras. 237 and 238;  and United States' appellee's 
submission, para. 120.  For the Panel's findings, see Panel Report, paras. 7.673-7.677) 
684Panel Report, para. 7.740.  
685Panel Report, para. 7.663. 
686Panel Report, para. 7.680.  WT/DS381/AB/R 
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The Panel found that the "AIDCP dolphin-safe defi nition and certification" constitute a "standard"
687, 
that the AIDCP is an "interna tional standardizing organization"688, and that the AIDCP standard was 
made available to the public.689   
345. The Panel further found that the AIDCP sta ndard is "relevant" for the purpose of the 
US "dolphin-safe" labelling provisions690 and that the United States failed to base its "dolphin-safe" 
labelling provisions on the AIDCP standard.691  However, the Panel concluded that Mexico had 
"failed to demonstrate that the [AIDCP standard] is  an effective and appropriate means to fulfil the 
US objectives at the United States' chosen level of protection".692 
346. The United States appeals the Panel's conclusi on that the "AIDCP dolphin-safe definition and 
certification" constitute a "relevant international sta ndard", and in particular the Panel's intermediate 
finding that the AIDCP is an "inter national standardizing organization".693  The United States argues 
that the parties to the AIDCP are parties to an  international agreement, not to a body or an 
organization, that the AIDCP does not have "recogn ized activities in standardization", and that the 
AIDCP is not "international" within the meaning of the TBT Agreement  because its membership was 
not, and is not, open to all WTO Members.694  Mexico responds that the Panel properly addressed and 
rejected the United States' arguments, and requests the Appellate Body to uphold the Panel's finding 
that the AIDCP standard is a "relevant internati onal standard" within the meaning of Article 2.4.695  
347. Mexico appeals the Panel's finding that Mexi co failed to demonstrate that the AIDCP 
standard is an effective and appropriate means to fulfil the legitimate objectives pursued by the 
United States.696  Mexico argues that the Panel erred in not evaluating whether the AIDCP standard 
would be effective and appropria te in fulfilling the United States' objectives outside the ETP.697  
Mexico further submits that the Panel correctly id entified, but then misapplied, the legal test for 
assessing whether the AIDCP standard would be eff ective and appropriate for the fulfilment of the 
objectives pursued by the United States.698  The United States responds that, once the Panel had found 
that the AIDCP standard was ineffective or inap propriate for achieving the United States' objectives 
within the ETP, there was no need for it to cons ider the hypothetical application of the AIDCP 
                                                      
687Panel Report, para. 7.677.  
688Panel Report, para. 7.693.  
689Panel Report, para. 7.695.  
690Panel Report, para. 7.707.  
691Panel Report, para. 7.716.  
692Panel Report, para. 7.740.  
693United States' appellant's submission, para. 136.   
694United States' appellant's submission, para. 137.  
695Mexico's appellee's submission, para. 226.  
696Mexico's other appellant's submission, para. 260. 
697Mexico's other appellant's submission, para. 250.  
698Mexico's other appellant's submission, paras. 233 and 251.  WT/DS381/AB/R 
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standard outside the ETP.699  The United States further claims that Mexico does not challenge the 
Panel's finding that the AIDCP standard would not m eet all of the United States' objectives, and that 
the Panel's conclusion that Mexico had failed to demonstrate that the AIDCP standard is an effective 
and appropriate means to fulfil the United States' objectives must therefore stand.700 
348. Before turning to our analysis, we note that th e United States' appeal requires us to decide 
what constitutes an "international standard" for the purposes of the TBT Agreement .  This question is 
important because, by virtue of Article 2.4, if a st andard is found to constitute  a "relevant international 
standard", WTO Members are required to use it, or its relevant parts, as a basis for their technical 
regulations, except when such standard would be an ineffective or inappropriate means for the 
fulfilment of the legitimate objectives pursued by the Member in question.701  Moreover, pursuant to 
Article 2.5 of the TBT Agreement , technical regulations that are in accordance with relevant 
international standards are rebuttably presumed not  to create unnecessary obstacles to international 
trade. 
B. The United States' Appeal 
1. The Meaning of the Term "International Standard" 
349. The text of Article 2.4 of the TBT Agreement reads as follows:  
Where technical regulations are re quired and relevant international 
standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical 
regulations except when such interna tional standards or relevant parts 
would be an ineffective or inappr opriate means for the fulfilment of 
the legitimate objectives pursued, for instance because of fundamental climatic or geogra phical factors or fundamental 
technological problems. 
350.   The composite term "international sta ndard" is not defined in Annex 1 of the 
TBT Agreement .  However, Annex 1.2 to the TBT Agreement defines a "standard" as follows: 
Document approved by a recognized body, that provides, for 
common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which 
compliance is not mandatory.  It may also include or deal exclusively 
with terminology, symbols, packaging, marking or labelling 
                                                      
699United States' appellee's submission, para. 126.  
700United States' appellee's submission, para. 134.  
701This point is emphasized by the United States and by a number of third participants. (See 
United States' appellant's submission, paras. 144-146; Brazil's third participant's submission, para. 47;  
European Union's third participant's submission, para. 84;  and Japan's third participant's submission, para. 28)  WT/DS381/AB/R 
Page 134  
 
requirements as they apply to a product, process or production 
method. 
Explanatory note 
The terms as defined in ISO/IEC Guide 2 cover products, processes 
and services.  This Agreement deals only with technical regulations, standards and conformity assessment procedures related to products 
or processes and production methods .  Standards as defined by 
ISO/IEC Guide 2 may be mandatory or voluntary.  For the purpose of this Agreement standards are defined as voluntary and technical regulations as mandatory documents .  Standards prepared by the 
international standardization comm unity are based on consensus.  
This Agreement covers also documents that are not based on 
consensus. 
351. Moreover, Annex 1.4 to the TBT Agreement  defines an "international body or system" as 
follows: 
Body or system whose membership is open to the relevant bodies of 
at least all Members.  
352. The TBT Agreement  thus establishes the characteristics of a standard  and of an international  
body .  The Explanatory Note to Annex 1.2 states that  "[s]tandards prepared by the international 
standardization community are based on consensus."   
353. The introductory clause of Annex 1 to the TBT Agreement provides that terms used in the 
TBT Agreement  that are also "presented" in the ISO/IE C Guide 2: 1991, General Terms and Their 
Definitions Concerning Standard ization and Related Activities
702 (the "ISO/IEC Guide 2: 1991") 
"shall … have the same meaning as given in th e definitions in the said Guide".  The term 
"international standard" is defined in the ISO/IEC Gu ide 2: 1991 as a "standard that is adopted by an 
international standardizing/standards orga nization and made available to the public."703  T h i s  
definition suggests that it is primarily the characteris tics of the entity approving a standard that lends 
the standard its "international" character.  By cont rast, the subject matter of a standard would not 
appear to be material to the dete rmination of whether the standard is  "international".  The definition of 
"international standard" in the ISO/IEC Guide 2: 1991 and the Explanatory Note to the definition of "standard" in the TBT Agreement  also suggest that there may be additional procedural conditions that 
have to be met for a standard to be cons idered "international" for the purposes of the TBT Agreement .  
Since the United States' appeal is limited to the characteristics of the entity approving an 
"international" standard, we do not need to address in this appeal the question of whether, in order to 
                                                      
702International Organization for Standardization (ISO) / International Electrotechnical Commission 
(IEC) Guide 2, General Terms and Their Definitions Concerning Standardization and Related Activities, 
sixth edition (1991). 
703ISO/IEC Guide 2: 1991, 3.2.1.  See also Panel Report, para. 7.663.   WT/DS381/AB/R 
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constitute an "international standard", a standard mu st also be "based on consensus".  Nor do we have 
to address whether it has to be "made available to the public".704  
354. The introductory clause of Annex 1 to the TBT Agreement also stipulates that:  "[f]or the 
purpose of this Agreement, however, the following de finitions shall apply".  The use of the word 
"however" indicates that the definitions contained in Annex 1 to the TBT Agreement prevail to the 
extent that they depart from the definitions set out in the ISO/IEC Guide 2: 1991.705  A panel must 
therefore carefully scrutinize to what ex tent the definitions in Annex 1 to the TBT Agreement  depart 
from the definitions in the ISO/IEC Guide 2: 1991.   
355. With respect to the type of entity approving an "international" standard, the 
ISO/IEC Guide 2: 1991 refers to an "o rganization", whereas Annex 1.2 to the TBT Agreement  
stipulates that a "standard" is to be approved by a "body".  According to the ISO/IEC Guide 2: 1991, a 
"body" is a "legal or administrative entity that  has specific tasks and composition", whereas an 
"organization" is a "body that is based on the me mbership of other bodies or individuals and has an 
established constitution and its own administration".706  The answer to the question of whether an 
"international" standard has to be approved by a "body" or an "organization" thus determines whether 
the entity can be a "legal or administrative entity that has specific tasks and composition", or whether 
the entity must also be "based on the membership of other bodies or individuals" and must have "an 
established constitution and its  own administration".   
356. Annex 1.2 to the TBT Agreement  refers to a "body", not to an "organization", and Annex 1.4 
defines an "international body or system", but not an  "international organization".  This suggests that, 
for the purposes of the TBT Agreement , "international" standards are adopted by "bodies", which may, 
but need not necessarily, be "organizations".  This is also supported by the context provided by other 
provisions of the TBT Agreement .  For example, Articles 2.6, 10.1.4, 11.2, 12.5, and 12.6, as well as 
Annexes 3.G and 3.H to the TBT Agreement envisage that international standards are prepared by 
"international standardizing bodies ".707  Since the definitions in Annex 1 to the TBT Agreement  
prevail over the definitions in the ISO/IEC Guide 2:  1991, we find that, in order to constitute an 
"international standard", a standard has to be  adopted by an "international standardizing body " for the 
purposes of the TBT Agreement . 
                                                      
704We note that the Panel in this dispute analyzed  whether the AIDCP standard had been adopted by 
consensus. (Panel Report, para. 7.676)  The Panel also  examined whether the AIDCP standard had been "made 
available to the public". (Panel Report, para. 7.695) 
705See Appellate Body Report, EC – Sardines , paras. 224 and 225.  
706ISO/IEC Guide 2: 1991, 4.1 and 4.2.  See also Panel Report, para. 7.679.  
707Emphasis added. WT/DS381/AB/R 
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357. With respect to other necessary features of a body that can approve an "international" 
standard, the ISO/IEC Guide 2: 1991 stipulates that it must be a "standardizing/standards" 
organization.  A "standardizing body" is defi ned as a "body that has recognized activities in 
standardization", whereas a "standards body" is a "sta ndardizing body recognized at national, regional 
or international level, that has as a principal func tion, by virtue of its statutes, the preparation, 
approval or adoption of standards that  are made available to the public."
708  Annex 1.2 to the 
TBT Agreement  provides that a "standard" must be approve d by a "recognized body".  As we see it, 
the definition of "standardizing body" in the ISO/IEC Guide 2: 1991 does not conflict with the 
definition in the TBT Agreement .  Instead, the definition in the IS O/IEC Guide 2: 1991 adds to and 
complements the definition in the TBT Agreement , specifying that a body must be "recognized" with 
respect to its "activities in standardization". 
358. With regard to the requirement that only a document approved by an "international" 
standardizing body can be an "international" standard, the ISO/IEC Guide 2: 1991 stipulates that a standardizing organization is "inter national" if its "membership is open to the relevant national body 
from every country", whereas Annex 1.5 to the TBT Agreement  defines an "international body" as a 
body "whose membership is open to the relevant bodies of at least all Members". 
359. We consider, therefore, that a required element of  the definition of an "international" standard 
for the purposes of the TBT Agreement  is the approval of the standard by an "international 
standardizing body", that is, a body that has re cognized activities in standardization and whose 
membership is open to the relevant bodies of at least all Members.
709  A s  w e  s e e  i t ,  t h e  d i f f e r e n t  
components of this definition inform each other.  The interpretation of the term "international 
standardizing body" is therefore a holistic exercise in which the components of the definition are to be 
considered together.   
360. As noted above, the ISO/IEC Guide 2: 1991 defines a "body" as a "legal or administrative 
entity that has specific tasks and composition".  Wi th respect to the specific tasks, the definition 
specifies that an international standardizing body must  have "activities in standardization".  "Activity" 
is defined in the dictionary as the "state of being active".710  The term "activity" thus may refer to an 
instance of action, as well as a state.   As a result, the use of the pl ural "activities" does not necessarily 
imply that a body is, or has been, involved in the de velopment of more than one standard.  As we see 
it, a body simply has to be "active" in standardizati on in order to have "activities in standardization".  
                                                      
708ISO/IEC Guide 2: 1991, 4.3 and 4.4.  A Note specifies that "a standards body may also have other 
principal functions." ( Ibid.) 
709As noted above, we do not address any additio nal procedural conditions that may apply for a 
standard to be "international" within the meaning of the TBT Agreement .  
710Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. I, p. 23.  WT/DS381/AB/R 
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The word "standardization" is defined in the ISO/ IEC Guide 2: 1991 as the "[a]ctivity of establishing, 
with regard to actual or potential problems, provi sions for common and repeated use, aimed at the 
achievement of the optimum degree of order in a given context".711  With respect to the "provisions" 
that are established through standardization, we recall that the definition of a standard in the 
TBT Agreement  refers to a "document … that provides … rules, guidelines or characteristics for 
products or related processes and pr oduction methods" and "may also include or deal exclusively with 
terminology, symbols, packaging, marking or la belling requirements as they apply to a product, 
process or production method". 
361. Moreover, the definition of "international st andardizing body" provides that the body's 
activities in standardization must be "recognized".  The term "recognize" is defined as "[a]cknowledge 
the existence, legality, or validity of, [especially] by formal approval or sanction;  accord notice or 
attention to;  treat as worthy of consideration".712  These definitions fall along a spectrum that ranges 
from a factual end (acknowledgement of the ex istence of something) to a normative end 
(acknowledgement of the validity or legality of so mething).  In interpreting "recognized activities in 
standardization", we will therefore bear in mind bot h the factual and the normative dimension of the 
concept of "recognition". 
362. The definition of a "standards body" in the ISO/IEC Guide 2: 1991 sheds light on the question 
of what it means for a body to have "recognized activities in standardization".  We recall that a 
"standards body" is a "standardizing body recognized at  national, regional or in ternational level, that 
has as a principal function, by virtue of its statutes,  the preparation, approval or adoption of standards 
that are made available to the public."713  By implication, a "standardizing body", that is, a body with 
"recognized activities in standardization", does not need to have standardization as its principal 
function, or even as one of its principal functions.714  At the same time, we note that the factual 
dimension of the concept of "recognition" would appear to require, at a minimum, that 
WTO Members are aware, or have reason to expect, that the international body in question is engaged 
in standardization activities. 
363. With respect to the question of who has to r ecognize a body's activities in standardization, we 
note that Articles 2.6, 11.2, and 12.6 of the TBT Agreement  contemplate that "Members" participate in 
international standardizing activities.  Artic le 12.5, Annex 3.G, and Annex 1.4 to the TBT Agreement , 
                                                      
711ISO/IEC Guide 2: 1991, 1.1.   
712Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. II, p. 2489.  See also Panel Report, para. 7.686. 
713ISO/IEC Guide 2: 1991, 4.4.  
714We recall that the definition of "standards body" in the ISO/IEC Guide 2: 1991 is accompanied by a 
Note that specifies that "a standards body may also have other principal functions." (ISO/IEC Guide 2: 1991, 
4.4) WT/DS381/AB/R 
Page 138  
 
in turn, foresee the involvement of the "relevant bodies" or "standardizing bodies" of Members in the 
development of international standards.
715  We further note that, under the SPS Agreement , "relevant 
international organizations" are identified by the SPS Committee, which is composed of all 
WTO Members.716  This context suggests that, in examining whether an international body has 
"recognized activities in standardization", eviden ce of recognition by WTO Members as well as 
evidence of recognition by national sta ndardizing bodies would be relevant. 
364. With respect to the composition of the body, th e definition specifies that membership in an 
international standardizing body must  be "open to the relevant bodies of at least all Members".  The 
term "open" is defined as "accessible or available without hindrance", "not confined or limited to a 
few;  generally accessible or available".717  Thus, a body will be open if membership to the body is not 
restricted.  It will not be open if membership is a priori  limited to the relevant bodies of only some 
WTO Members. 
365. We also note that the TBT Agreement  distinguishes international bodies, "whose membership 
is open to the relevant bodies of at least all Members", and regional bodies, "whose membership is 
open to the relevant bodies of only some of the Members".718  The TBT Agreement  thus explicitly 
stipulates that not all transnati onal standardizing bodies are "international" for the purposes of the 
TBT Agreement .  
366. We further note, as did the Panel, that both th e United States and Mexico have referred in 
their arguments to the TBT Committee Decision on Principles for the Development of International 
Standards, Guides and Recommendations with Re lation to Articles 2, 5, and Annex 3 to 
the Agreement (the "TBT Committee Decision").719  This Decision sets out principles and procedures 
that standardizing bodies should observe wh en developing international standards. 
367. Before the Panel, the United States relied on the TBT Committee Decision in support of its 
interpretation of the term "internati onal standard" as a standard that is, inter alia , adopted by a body 
                                                      
715In addition, Article 10.1.4 of the TBT Agreement refers to "membership and participation of the 
Member, or of relevant central or local government bodies within its territory, in international and regional 
standardizing bodies". 
716See SPS Agreement , Annex A.3(d).  
717Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. II, p. 2007.  
718TBT Agreement , Annexes 1.4 and 1.5.  
719Decision of the Committee on Principles for the Development of International Standards, Guides and 
Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement, in WTO document G/TBT/1/Rev.10, Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to 
Trade since 1 January 1995, 9 June 2011, pp. 46-48.  This document is a revised version of G/TBT/1/Rev.9.  
The text of the Decision is identical in both documents. (See also Panel Report, para. 7.665)  WT/DS381/AB/R 
 Page 139 
 
 
whose membership is open to the relevant bodies of at least all WTO Members.720  The United States 
argued that the principles enshrined in the Decision "reflect Members' shared views inter alia  that … 
international standardizing bodies 's hould be open on a non-discriminatory basis to relevant bodies of 
at least all WTO Members'".721  The United States also acknowledged a suggestion by Canada that a 
body may be "recognized" because it develops standa rds or engages in standardizing activities "in 
accordance with certain recognized principles, fo r example, those in the Committee Decision".722  The 
United States considered this view as one possi ble interpretation of the term "recognized body".723  
Mexico claimed that the "AIDCP system operates in conformity with" the TBT Committee Decision.
724 
368. Before the Panel, several third parties argued th at the Panel should interpret the concept of an 
"international standardizing organization" in th e light of the TBT Committee Decision.  Canada 
submitted that the evaluation of whether a body c onstitutes a "recognized body" should take place "in 
accordance with the six principles for the developm ent of international standards espoused in the 
TBT Committee's Decision on Principles for the Deve lopment of International Standards, Guides and 
Recommendations."725  Similarly, Japan argued that the Panel should "take into account" and "draw 
on the guidance provided by" the principles contained in the TBT Committee Decision.726  Moreover, 
referring to the Decision, New Zealand noted that "[t]he TBT Committee has provided a clear indication of the type of bodies that it considers to be international standardizing bodies and the 
principles that such bodies should embrace."
727  Argentina and Brazil similarly relied on the principles 
enunciated in the TBT Committee Decision in their su bmissions, particularly with respect to the 
question whether the AIDCP is "open" to the relevant bodies of at least all Members.728 
369. On appeal, the United States as well as Braz il and Japan reiterate their view that the 
TBT Committee Decision should inform the interpreta tion of the concept "international standardizing 
organization".729  Japan emphasizes that the Appellate Body's interpretation of Article 2.4 "should 
                                                      
720Panel Report, para. 7.642.  See also United States' response to Panel Question 59, para. 136. 
721United States' response to Panel Question 59, para. 136.  
722Panel Report, para. 7.648. 
723Panel Report, para. 7.648.  See also United States' response to Panel Question 62, paras. 139 
and 140. 
724Panel Report, para. 7.645. 
725Panel Report, para. 5.92.   
726Panel Report, paras. 5.144 and 5.145. 
727Panel Report, para. 5.179. 
728Panel Report, paras. 5.25-5.30 (Argentina) and para. 5.75 (Brazil). 
729United States' appellant's submission, paras. 139 and 146;  Brazil's third participant's submission, 
paras. 50 and 55. WT/DS381/AB/R 
Page 140  
 
apply" the principles of the Decision, and that "no purported international standard should be 
recognized as such if these six principles were disregarded in its elaboration."
730   
370. The TBT Committee Decision sets out several pr inciples that WTO Members have decided 
"should be observed" when international standards,  guides, and recommendations are elaborated "to 
ensure transparency, openness, impartiality and con sensus, effectiveness and relevance, coherence, 
and to address the concerns of developing countries".731  The Panel considered it "appropriate to take 
into account the principles contained in this deci sion where they may inform [its] understanding of 
certain aspects of the ISO/IEC Guide defi nitions such as the terms 'international 
standardizing/standards organization' and 'made available to the public' in the definition of 
'international standard'."732  The Panel did not explicitly comment on the legal status of the 
TBT Committee Decision.  However, it noted the statement of the panel in EC – Sardines that the 
TBT Committee Decision "is a policy statement of preference and not the controlling provision in 
interpreting the expression 'relevant internationa l standard' as set out in Article 2.4 of the 
TBT Agreement".733   
371. Pursuant to Article 3.2 of the DSU, panels and the Appellate Body are to "clarify" the 
provisions of the covered agreements "in accordance with customary rules of interpretation of public 
international law".  This raises the question on  what basis we can take into account the 
TBT Committee Decision in the interpretation and application of Article 2.4 of the TBT Agreement .  
In particular, the issue is whether the Decision can qualify as a "subsequent agreement between the 
parties regarding the interpretation of the treaty or the application of its provisions" within the 
meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties734 (the 
"Vienna Convention ").  In this respect, we note that the Decision was adopted by the TBT Committee 
in the context of the Second Triennial Review  of the Operation and Implementation of the 
TBT Agreement , which took place in the year 2000.735  It was thus adopted subsequent to the 
                                                      
730Japan's third participant's submission, paras. 21 and 23. 
731TBT Committee Decision, para. 1.  
732Panel Report, para. 7.665.  
733Panel Report, para. 7.665 (quoting Panel Report, EC – Sardines , para. 7.91).  
734Vienna Convention on the Law of Treaties , done at Vienna, 23 May 1969, 1155 UNTS 331;  
8 International Legal Materials 679. 
735Committee on Technical Barriers to Trade, Se cond Triennial Review of the Operation and 
Implementation of the Agreement on Technical Barriers to  Trade, in WTO Document G/TBT/9, 13 November 
2000.   WT/DS381/AB/R 
 Page 141 
 
 
conclusion of the TBT Agreement .  We further note that the membership of the TBT Committee 
comprises all WTO Members and that th e Decision was adopted by consensus.736 
372. With respect to the question of whether the terms and content of the Decision express an 
agreement between Members on the interpretation or application of a provision of WTO law, we note 
that the title of the Decision expressly refers to "Principles for the Development of International 
Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of 
the Agreement ".737  We further note that the TBT Committee undertook the activities leading up to the 
adoption of the Decision "[w]ith a view to de veloping a better understa nding of international 
standards within the Agreement"738 and decided to develop the principles contained in the Decision, 
inter alia , "to ensure the effective application of the Agreement" and to "clarify and strengthen the 
concept of international standards under the Agreement".739  We therefore consider that the 
TBT Committee Decision can be considered as a "s ubsequent agreement" within the meaning of 
Article 31(3)(a) of the Vienna Convention .  The extent to which this Decision will inform the 
interpretation and application of  a term or provision of the TBT Agreement  in a specific case, 
however, will depend on the degree to which it "bears specifically"740 on the interpretation and 
application of the respective term or provision.  In the present dispute, we consider that the 
TBT Committee Decision bears directly on the interpre tation of the term "open" in Annex 1.4 to the 
TBT Agreement , as well as on the interpretation and application of the concept of "recognized 
activities in standardization". 
373. The TBT Committee Decision clarifies the temporal  scope of the requirement that a body be 
"open".  It states, in relevant part: 
                                                      
736See also Brazil's third participant's submission, pa ra. 55, noting with reference to the Decision:  
"WTO Members agreed that participation in the formulatio n of international standards should be available to all 
those who wish to engage therein.";  and Japan's third participant's submission, para. 23:  "The 2000 Decision 
reflects a consensus observation that if the TBT Agreement is to accord special status  to the international 
standards, guidelines and recommendations made by some organizations, then the membership of these 
organizations must, for instance, be open on a non-discriminatory basis to relevant bodies of at least all WTO 
Members—including non-discriminatory and impartial acce ss to participation at the policy development level, 
and at every stage of standards development." 
737Emphasis Added.  In the deliberations leading up to the adoption of the Decision, the 
TBT Committee noted:  "that international standards, gui des and recommendations were important elements of 
the Agreement and played a si gnificant role in its implementation.  Articles 2.4, 2.5, 5.4, and Paragraph F of 
Annex 3 of the Agreement placed an emphasis on th e use of international standards, guides and 
recommendations as a basis for domestic standards, technical regulations and conformity assessment 
procedures, with the objective of reducing trade barriers.  Articles 2.6, 5.5, and Paragraph G of Annex 3 
emphasized the importance of Members' participation in in ternational standardization activities, with a view to 
harmonizing technical regulations, conformity assessment procedures and standards on as wide a basis as 
possible." (G/TBT/9, supra , footnote 735, para. 17) 
738G/TBT/9, supra , footnote 735, para. 18. 
739G/TBT/9, supra , footnote 735, para. 20;  G/TBT/1/Rev.10, p. 12.  
740See Appellate Body Report, US – Clove Cigarettes , para. 265 (quoting Appellate Body Reports, 
EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , para. 390).  WT/DS381/AB/R 
Page 142  
 
Membership of an international st andardizing body should be open 
on a non-discriminatory basis to relevant bodies of at least all WTO Members.  This would include openness without discrimination with respect to the participation at the policy development level and at every stage of standards development … .
741 
374. Thus, in order for a standardizing body to be considered "international" for the purposes of 
the TBT Agreement , it is not sufficient for the body to be open, or have been open, at a particular point 
in time.  Rather, the body must be open "at every stage of standards development".   
375. Moreover, the TBT Committee Decision clarifies th at a standardizing body must be open "on 
a non-discriminatory basis".  Thus, provisions for accession that de jure or de facto disadvantage the 
relevant bodies of some Members as compared to ot her Members would tend to indicate that a body is 
not an "international" standardiz ing body for the purposes of the TBT Agreement .   
376. In addition, the TBT Committee Decision assist s in the determination of whether an 
international body has "recognized activities in standard ization".  As an initial matter, we note that the 
TBT Committee Decision establishes principles a nd procedures that WTO Members have decided 
"should be observed" in the development of interna tional standards.  Evidence that an international 
body has followed the principles and procedures of the TBT Committee Decision in developing a 
standard would therefore be relevant for a de termination of whether the body's activities in 
standardization are "recognized" by WTO Members.  More specifically, we recall that the word 
"recognize" is defined as "[a]cknowle dge the existence, legality, or validity of, [especially] by formal 
approval or sanction;  accord notice or atten tion to;  treat as worthy of consideration"742 and that the 
concept of "recognition" has a factual and a normative  dimension.  From a factual perspective, we 
note that the standardizing activities of a body that disseminates information about its standardization 
activities, as envisaged by the transparency procedures of th e TBT Committee Decision, would 
presumably be acknowledged to exist, accorded notice or attention, and treated worthy of 
consideration by all WTO Members that make a good faith effort to follow international 
standardization activities.  In terms of the norma tive connotation of the concept of "recognition", we 
observe that, to the extent that a standardizing b ody complies with the principles and procedures that 
                                                      
741TBT Committee Decision, para. 6.  
742Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. II, p. 2489.  See also Panel Report, para. 7.686.  WT/DS381/AB/R 
 Page 143 
 
 
WTO Members have decided "should be observed" in the development of international standards, it 
would be easier to find that the body has "recognized activities in standardization".743 
377. We further note that the objectives expressed in the TBT Committee Decision with respect to 
the development of international standard s are similar to the objectives that the Code of Good 
Practice for the Preparation, Adoption and Application of Standards  contained in Annex 3 to the 
TBT Agreement  pursues with respect to standards adopted by local, national, and regional 
governmental and non-governmental standardizi ng bodies.  Pursuant to Article 4.2 of the 
TBT Agreement , "[s]tandardizing bodies that have accepted and are complying with the Code of Good 
Practice shall be acknowledged by the Members as comp lying with the principles of this Agreement."  
As we see it, this provision lends contextual s upport to our interpretation that evidence of a body's 
compliance with procedural and substantive saf eguards formulated by WTO Members would be 
relevant for the question of whether its standa rdizing activities are "recognized" for the purposes of 
the TBT Agreement .  
378. In sum, the TBT Committee Decision clarifies the temporal scope of the requirement that an 
international standardizing body be  open to the relevant bodies of at least all WTO Members, and 
specifies that the body should be open on a non-discriminatory basis.  By setting out principles and 
procedures that WTO Members have decided "should be observed" by international standardizing 
bodies, the TBT Committee Decision also assists in th e determination of whether an international 
body's activities in standardization are "recognized" by WTO Members.   
379. Finally, we consider how the object and purpose of the TBT Agreement  informs the 
interpretation of the term "international standardizing body".  We note that the TBT Agreement  
explicitly encourages the development of interna tional standards.  Thus, the preamble of the 
TBT Agreement  states,  in relevant part: " Recognizing  the important contribution that international 
standards … can make … by improving efficiency  of production and f acilitating the conduct of 
international trade;  Desiring  therefore to encourage the developmen t of such international standards".  
Moreover, contrary to the SPS Agreement , which defines "international standards, guidelines and 
recommendations" by reference to specific organizations744, the TBT Agreement  does not contain a list 
of international standardizing orga nizations.  This suggests that the TBT Agreement  also aims to 
encourage the development of international standa rds by bodies that were not already engaged in 
                                                      
743With regard to the importance of the normative dimension, we note the European Union's view that 
"recognition gives documents issued by [international standardizing organizations] the necessary legitimacy  to 
justify their potentially far-reaching effects under Article 2.4 of the TBT Agreement ." (European Union's third 
participant's submission, para. 85) (original emphasis) 
744SPS Agreement , Annex A.3(a)-(c).  The SPS Agreement  also refers to standards developed by other 
"relevant international organizations open for membersh ip to all Members, as identified by the Committee". 
(SPS Agreement , Annex A.3(d))  However, the SPS Committee has not identified any such organizations. WT/DS381/AB/R 
Page 144  
 
standardizing activities at the time of the adoption of the TBT Agreement .  At the same time, other 
elements of the TBT Agreement , as well as the TBT Committee Decision, reflect the intent of 
WTO Members to ensure that the development of in ternational standards take place transparently and 
with wide participation.
745  The obligations and privileges asso ciated with international standards 
pursuant to Articles 2.4 and 2.5 of the TBT Agreement  further underscore the imperative that 
international standardizing bodies ensure representative participa tion and transparency in the 
development of international standards.  In an alyzing whether an entity is an "international 
standardizing body", a panel needs to balance these considerations. 
380. We now turn to review the Panel's interpreta tion of the term "international standardizing 
organization".   
(a) The Panel's Interpretation of the Term "International" 
381. The United States takes issue with the Panel's in terpretation of the term  "international" in 
Article 2.4.  The United States submits that th e Panel's conclusion was based on an "incorrect 
understanding of what is required fo r an organization to be 'open'".746  The United States points out 
that both Annex 1 to the TBT Agreement  and the ISO/IEC Guide 2: 1991 refer to the openness of a 
body in the present tense ("a body that is open").  On this basis, the United States argues that the 
organization must be open to all Members during the period during which the standard in question 
was developed and it must remain open thereafter.  Mexico does not disagree with the United States' 
                                                      
745See TBT Agreement , Article 2.6:  "With a view to harmonizing technical regulations on as wide a 
basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by 
appropriate international standardizing bodies of interna tional standards for products for which they either have 
adopted, or expect to adopt, technical regulations.";  and Article 12.5:  "Members shall take such reasonable 
measures as may be available to th em to ensure that international standardizing bodies … are organized and 
operated in a way which facilitates active and representativ e participation of relevant bodies in all Members, 
taking into account the special problems of developing country Members". See also TBT Agreement , 
Annex 3.G.  We note that WTO Members see representativ e participation and the observance of due process in 
the development of international standards as essential to the achievement of the trade facilitating objectives of 
the TBT Agreement .  As the Second Triennial Review of the Operation and Implementation of the 
TBT Agreement has noted:  
Adverse trade effects might aris e from standards emanating from 
international bodies as defined in the Agreement which had no procedures 
for soliciting input from a wide range of interests.  Bodies operating with 
open, impartial and transparent procedures, that afforded an opportunity for consensus among all interested parties in the territories of at least all 
Members, were seen as more likel y to develop standards which were 
effective and relevant on a global basis and would thereby contribute to the goal of the Agreement to prevent unnecessary obstacles to trade. 
(G/TBT/9, supra , footnote 735, para. 20) 
746United States' appellant's submission, para. 138.  WT/DS381/AB/R 
 Page 145 
 
 
interpretation, but argues that the AIDCP was open when the AIDCP definition of "dolphin-safe" was 
developed.747 
382. As noted above, we are of the view that th e TBT Committee Decision clarifies the temporal 
scope of the requirement that a body be "open" to the relevant bodies of at least all WTO Members.  
Specifically, the body must be open "at every stage of standards development". 
383. The United States further argues that the fact that  all States whose vessels fished for tuna in 
the Agreement area during the signature period were e ligible to join the AIDCP, and that there were 
no prohibitions of fishing in the Agreement area at  the time, does not mean that the AIDCP was open 
to all Members, since Members who may have an in terest in the AIDCP's activities other than fishing 
(such as consumer or conservation inte rests) were ineligible to become  parties to the AIDCP.  Mexico 
responds that it is presumably understandable that an y State or regional organization that has interest 
in the AIDCP regulation of tuna fishing techniques can accede today by a simple invitation of the rest 
of Members. 
384. We agree with the United States that an intern ational standardizing body must not privilege 
any particular interests in the development of interna tional standards.  In this respect, we note that the 
TBT Committee Decision states, under the h eading "Impartiality and Consensus", that: 
All relevant bodies of WTO Members should be provided with 
meaningful opportunities to contribu te to the elaboration of an 
international standard so that th e standard development process will 
not give privilege to, or favour the interests of, a particular supplier/s, country/ies or region/s.
748 
385. With respect to the Panel's finding that the AIDCP remains open to all Members on a non-
discriminatory basis since any State or regional eco nomic integration organiza tion can be invited to 
accede to the Agreement on the basis of a decision by the parties, the United States asserts that a body 
in which Members may participate by invitation only is  not a body that is open.  The United States 
stresses that becoming a party to the AIDCP is not an option available to at least all Members;  it is an 
option available only to those Members invited.  For the United States, it follows therefore that not all 
Members have the ability to participate in review or  revision of the definitions at issue.  Mexico 
responds that being invited to accede to the AIDCP is a "formality".749   
386. The question whether a body is "open" if all WTO Members or th eir relevant bodies can 
accede pursuant to an invitation has to be decided on  a case-by-case basis.  It is conceivable that an 
                                                      
747Mexico's appellee's submission, para. 207.  
748TBT Committee Decision, para. 8.  
749Mexico's appellee's submission, para. 208. WT/DS381/AB/R 
Page 146  
 
invitation might indeed be a "formality".  In our vi ew, this would be the case if the invitation occurred 
automatically once a Member or its relevant body h as expressed interest in joining a standardizing 
body.  A panel must therefore carefully scrutini ze the provisions, procedures, and practices governing 
accession to a standardizing body before concluding th at it is "open to the relevant bodies of at least 
all Members". 
(b) The Panel's Interpretation of the Concept of "Recognized Activities 
in Standardization" 
387. The United States also takes issues with th e Panel's interpretation of the concept of 
"recognized activities in standardization".  We reca ll the Panel's finding that "the term 'recognized' 
refers to the body's activities in standards developmen t, and that the participation in these activities of 
the countries that are parties to the Agre ement is evidence of their recognition."
750  The Panel added 
that "such recognition may also be inferred from the recognition of the resulting standard, i.e. when its 
existence, legality and validity has been acknowledged."751 
388. On appeal, the United States submits that the first criterion articulated by the Panel for 
assessing whether activities are "recognized" is flawed.  According to the United States, by suggesting 
that participation in standardizing activities is evid ence of the recognition of those activities, the Panel 
effectively reads the term "recognized" out of the de finition.  The United States suggests that, if the 
act of creating a standard was at the same time an act of recognition by the creators, there would be no 
need to specify that standardization activity need to be recognized, since the existence of a standard 
would, in itself, establish that recognition occurred. 
389. Mexico agrees with the Panel that participati on by countries in the development of a standard 
is sufficient evidence of their recognition.  Mexi co further submits that the elaboration of the 
"dolphin-safe" definition was one of the main reasons  for many Members to participate in the AIDCP.  
Mexico suggests that this is a "clear signal of acknowledgement".752   
390. We see no reason why participation in a body's standardizing activities could not constitute 
evidence suggesting that a body is engaged in "rec ognized" activities.  In our view, the United States' 
concern that this interpretation "effectively r ead[s] the term 'recognized' out of the definition"753 of an 
"international standard" may have arisen because the Panel was silent on who must recognize a body's 
standardizing activities for the purposes of the TBT Agreement .  We have already noted above that, in 
examining whether an international body has rec ognized activities in standardization, evidence of 
                                                      
750Panel Report, para. 7.686.  
751Panel Report, para. 7.686.  
752Mexico's appellee's submission, para. 216.  
753United States' appellant's submission, para. 151.  WT/DS381/AB/R 
 Page 147 
 
 
recognition by WTO Members, as well as evidence of  recognition by national standardizing bodies, 
would be relevant.  As we see it, the recognition of  those who participate in the development of a 
standard would not necessarily be sufficient to  find that a body has recognized activities in 
standardization, since the obligations and privileg es associated with international standards pursuant 
to the TBT Agreement  apply with respect to all WTO Members, not merely those who participated in 
the development of the respective standard.  Neverthel ess, it seems to us that the larger the number of 
countries that participate in the development of a standard, the more likely it can be said that the 
respective body's activities in standardization are "recognized". 
391. The United States agrees with the Panel that r ecognition of standardizing activity may occur 
"through acknowledgment of a body's standards", but a lleges that the Panel did not properly apply this 
concept.754  In response, Mexico notes that the fact that  the United States does not allow the use of the 
AIDCP "dolphin-safe" label does not mean that th e AIDCP does not have "sta ndardizing activities" or 
that the AIDCP "dolphin-safe" label is not currently being used. 
392. We agree with the Panel that recognition of  a body's standardization activities may "be 
inferred from the recognition of the resulting standard , i.e. when its existence, legality and validity 
[have] been acknowledged".755  While we regard the recognition of a body's standards by WTO 
Members and national standardizing bodies as highl y pertinent evidence that a body has recognized 
activities in standardization, we do not consider th at only a body whose standards are widely used can 
have recognized activities in standardization for the purposes of the TBT Agreement . 
393. The United States further submits that, in any event, recognition of a single standard would 
not amount to recognition of a body's "standardizing activities".  For the United States, the plural "activities" implies that the body h as been involved in the developmen t of more than one standard.  
Restricting the concept of "recognized activities in st andardization" to bodies with a track record of 
developing standards would also ensure that Members were aware whether a standard being 
developed in a particular body would tri gger the corresponding obligations in the TBT Agreement .
756 
394. We disagree with this argument.  As noted above , the term "activity" may refer to an instance 
of action, as well as a state.  Moreover, we find it difficult to see why an international organization 
that develops a single standard could not have "recognized activities in standardization" if other 
evidence suggests that the body's standardization activities are recognized, for example, if a large 
number of WTO Members participate in the develo pment of the standard, acknowledge the validity 
                                                      
754United States' appellant's submission, para. 152. 
755Panel Report, para. 7.686. 
756United States' appellant's submission, para. 154. WT/DS381/AB/R 
Page 148  
 
and legality of the standard, or the body follo ws the principles contained in the TBT Committee 
Decision.  
(c) The Panel's Interpretation of the Term "Organization" 
395. As we understand it, the United States' appeal of the Panel's finding that the AIDCP is an 
"organization" is not directed at the Panel's interp retation of that term, but is limited to the Panel's 
application of the term to the facts of the case, as well as the factual basis for the Panel's conclusion.  
In any event, we recall that, for the purposes of the TBT Agreement , international standards need to be 
adopted by "international standardizing bodies ", which may, but need not necessarily, be 
"international standardizing organizations".   The Panel thus erred in finding that it had to consider 
whether the AIDCP standard was adopted by an "organization", rather than by a "body".   
2. Whether the Panel Erred in Finding that the AIDCP Standard Is A "Relevant 
International Standard" within the Meaning of Article 2.4 of the 
TBT Agreement  
396. We now proceed to evaluate whether the Panel e rred in finding that the AIDCP standard is a 
"relevant international standard" within the meaning of Article 2.4 of the TBT Agreement .  As noted, 
the Panel's finding is based on its intermediate conclusions that the AIDCP "dolphin-safe" definition 
and certification c onstitute a standard757, that the AIDCP is an "international standardizing 
organization"758, and that the AIDCP standard was made available to the public.759  
397. We begin by considering whether the Pane l erred in concluding that the AIDCP is 
"international", that is, that membership in the AIDCP is open to the relevant bodies of at least all Members. 
398. Mexico suggests that being invited to accede to the AIDCP is a "formality".
760  Mexico also 
states that "[n]o additional countries or regional economic integration orga nizations have expressed 
interest in joining the AIDCP" and that "it is common that during the AIDCP meetings, Parties to the Agreement invite observer countries that regularly attend such meetings with the intention in the 
future to become Parties."
761  We have stated above that, in order to show that an invitation to accede 
to the AIDCP is a "formality", Mexico would have to  prove that the issuance of an invitation occurs 
automatically once a WTO Member has expressed interest in joining.  This Mexi co has not shown.  It 
is uncontested that the parties to the AIDCP have to take the decision to issue an invitation by 
                                                      
757Panel Report, para. 7.677.  
758Panel Report, para. 7.693.  
759Panel Report, para. 7.695.  
760Mexico's appellee's submission, para. 208. 
761Mexico's appellee's submission, para. 209.  WT/DS381/AB/R 
 Page 149 
 
 
consensus.762  Overall, we are not persuaded that be ing invited to join the AIDCP is a mere 
"formality".  In the light of the provisions for acce ssion to the AIDCP, it therefore appears that the 
AIDCP is not an "international" body for the purposes of the TBT Agreement .  
399. In the light of the above, we conclude that the Panel erred in finding, in paragraph 7.693 of 
the Panel Report, that the AIDCP is "open to the re levant body of every country and is therefore an 
international standardizing orga nization" for the purposes of the TBT Agreement .  Instead, we find 
that the AIDCP is not open to the relevant bo dies of at least all Members and thus not an 
"international standardizing body" for purposes of the TBT Agreement .763  It follows that the Panel 
also erred in finding, in paragraph 7.707 of the Panel Report, that the "AIDCP dolphin-safe definition 
and certification" constitute a "relevant intern ational standard" within the meaning of the 
TBT Agreement . 
C. Mexico's Appeal 
400. Mexico appeals the Panel's finding, in paragr aph 7.740 of the Panel Report, that Mexico 
failed to demonstrate that the AI DCP standard is an effective a nd appropriate means to fulfil the 
United States' objectives at the United States' chosen le vel of protection.  Since we have found that the 
Panel erred in finding that the AIDCP standard is  a "relevant international standard" within the 
meaning of Article 2.4 of the TBT Agreement , we do not need to address this issue.  
D. Conclusion 
401. In the light of the above, we reverse  the Panel's finding, in paragraph 7.693 of the Panel 
Report, that the AIDCP is "open to the relevant body of every country and is therefore an international 
standardizing organization" for the purposes of Article 2.4 of the TBT Agreement .  We also reverse  
the Panel's finding, in paragraph 7.707 of the Pa nel Report, that the "AIDCP dolphin-safe definition 
and certification" constitute a "relevant intern ational standard" within the meaning of the 
TBT Agreement .  In the light of this, the Panel's finding, in  paragraph 8.1(c) of the Panel Report, that 
the measure at issue is not inconsistent with Article 2.4 of the TBT Agreement  stands. 
                                                      
762As pointed out by the United States at the oral h earing, Mexico itself has encountered difficulties in 
joining another fisheries management organization, the Western and Central Pacific Fisheries Commission 
(WCPFC). (See Panel Report, footnote 505 to para. 7.327) 
763Having found that the AIDCP is not "international" for the purposes of the TBT Agreement , we do 
not need to address the question of whether the AIDCP is a "body" and has "recognized activities in 
standardization". WT/DS381/AB/R 
Page 150  
 
IX. Mexico's Claims under Articles I:1 and III:4 of the GATT 1994 
402. Mexico submits that the Panel erred in exerci sing judicial economy with respect to Mexico's 
claims under Articles I and III of the GATT 1994, ther eby acting inconsistently with its obligations 
under Article 11 of the DSU, and requests the Appellate  Body to complete the legal analysis by ruling 
on these claims.
764  The United States counters that the Panel "addressed 'all aspects of Mexico's 
claims, including non-discrimination aspects under Artic le 2.1, and other aspects under Article[s] 2.2 
and 2.4', such that it was not 'necessary for it to c onsider separately and additionally Mexico's claims 
under Articles I:1 and III:4 of the GATT 1994.'"765  The United States further submits that Mexico has 
not explained why the use of judicial economy by th e Panel is a failure to assist the DSB in making 
recommendations and rulings that would help settle the dispute.766 
403. We recall that the principle of judicial economy "allows a panel to refrain from making 
multiple findings that the same measure is inconsistent  with various provisions when a single, or a 
certain number of findings of inconsistency, would suffice to resolve the dispute."767  Consequently, 
"[a] panel need only address those cl aims which must be addressed in order to resolve the matter in 
issue in the dispute."768  Nonetheless, the Appellate Body also cautioned that: 
[t]he principle of judicial economy has to be applied keeping in mind 
the aim of the dispute settlement system.  This aim is to resolve the matter at issue and "to secure a positive solution to a dispute".  To provide only a partial resolution of the matter at issue would be false 
judicial economy.  A panel has to address those claims on which a 
finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings  so as to allow for prompt 
compliance by a Member with those recommendations and rulings "in order to ensure effective resoluti on of disputes to the benefit of all 
Members."
769 (footnotes omitted) 
404. Accordingly, "panels may refrain from ruling on every claim as long as it does not lead to a 
'partial resolution of the matter'."770 
405. To us, it seems that the Panel's decision to exercise judicial economy rested upon the 
assumption that the obligations  under Article 2.1 of the TBT Agreement  and Articles I:1 and III:4 of 
the GATT 1994 are substantially the same.  This assump tion is, in our view, incorrect.  In fact, as we 
have found above, the scope and content of these provi sions is not the same.  Moreover, in our view, 
                                                      
764Mexico's other appellant's submission, paras. 206 and 211.  
765United States' appellee's submission, para. 110 (quoting Panel Report, para. 7.748).  
766United States' appellee's submission, para. 112.  
767Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 133. (original emphasis)  
768Appellate Body Report, US – Wool Shirts and Blouses , p. 19, DSR 1997:I, 323, at 340.    
769Appellate Body Report, Australia – Salmon , para. 223. 
770Appellate Body Report, US – Upland Cotton , para. 732.  WT/DS381/AB/R 
 Page 151 
 
 
the Panel should have made additional findi ngs under the GATT 1994 in the event that the 
Appellate Body were to disagree with its view that  the measure at issue is a "technical regulation" 
within the meaning of the TBT Agreement .  As a result, it would have been necessary for the Panel to 
address Mexico's claims under the GATT 1994 give n that the Panel foun d no violation under 
Article 2.1 of the TBT Agreement .  By failing to do so, the Panel engaged, in our view, in an exercise 
of "false judicial economy" and acted inconsisten tly with its obligations under Article 11 of the 
DSU.771 
406. In response to questioning at the oral hearing in  this appeal, Mexico explained that it was not 
requesting that we complete the legal analysis by  ruling on Mexico's claims under the GATT 1994 if 
we were to find the US measure to be inconsistent  with Article 2.1 of the TBT Agreement .  As we 
have found the US "dolphin-safe" labelling provisions to be inconsistent with Article 2.1, we consider 
it not necessary for us to complete the legal analysis  in this case.  Accordingly, we make no finding in 
relation to Mexico's separate claims that the US "dolphin-safe" labelling prov isions are inconsistent 
with Article I:1 and Article III:4 of the GATT 1994. 
X. Findings and Conclusions 
407. For the reasons set out in this Report, the Appellate Body: 
(a) finds that the Panel did not err in characterizing the measure at issue as a "technical 
regulation" within the meaning of Annex 1.1 to the TBT Agreement ; 
(b) finds that the Panel erred in its interpreta tion and application of the phrase "treatment 
no less favourable" in Article 2.1 of the TBT Agreement ;  reverses the Panel's finding, 
in paragraphs 7.374 and 8.1(a) of the Panel Report, that the US "dolphin-safe" 
labelling provisions are not incons istent with Article 2.1 of the TBT Agreement ;  and 
finds instead that the US "dolphin-safe" labelling provisions are inconsistent with 
Article 2.1 of the TBT Agreement ; 
(c) finds that the Panel erred in concluding, in  paragraphs 7.620 and 8.1(b) of the Panel 
Report, that it has been demonstrated th at the measure at issue is more trade 
restrictive than necessary to fulfil the Un ited States' legitimate objectives, taking 
account of the risks non-fulfilment would create;  and therefore reverses the Panel's 
finding that the measure at issue is in consistent with Article 2.2 of the 
TBT Agreement ; 
                                                      
771Appellate Body Report, Australia – Salmon , para. 223. WT/DS381/AB/R 
Page 152  
 
(d) rejects Mexico's claim that the Panel erred in finding that the United States' objective 
of "contributing to the protection of dolphins , by ensuring that the US market is not 
used to encourage fishing fl eets to catch tuna in a manner that adversely affects 
dolphins" is a legitimate objective within the meaning of Article 2.2 of the TBT Agreement ; 
(e) rejects Mexico's request to find the measure at issue inconsistent with Article 2.2 of 
the TBT Agreement  based on the Panel's finding that the measure did not entirely 
fulfil its objectives; 
(f) reverses the Panel's finding, in paragraph 7.707 of the Panel Report, that the "AIDCP 
dolphin-safe definition and certification" cons titute a "relevant international standard" 
within the meaning of Article 2.4 of the TBT Agreement .  In the light of this, the 
Panel's finding, in paragraph 8.1(c) of the Panel Report, that the measure at issue is 
not inconsistent with Article 2.4 of the TBT Agreement  stands;  and 
(g) finds that the Panel acted inconsistently with Article 11 of the DSU in deciding to 
exercise judicial economy with respect to  Mexico's claims under Articles I:1 and III:4 
of the GATT 1994. 
408. The Appellate Body recommends  that the DSB request the United States to bring its measure, 
found in the Panel Report, as modified by th is Report, to be inconsistent with the TBT Agreement , into 
conformity with its obligations under that Agreement.  WT/DS381/AB/R 
 Page 153 
 
 
Signed in the original in Geneva this 1st day of May 2012 by:  
 
   
_________________________ 
Yuejiao Zhang 
Presiding Member 
 
 
 
  
 _________________________ _________________________ 
 Ujal Singh Bhatia Thomas R. Graham 
 Member Member 
 
  WT/DS381/AB/R 
 Page 155 
 
 
ANNEX I 
 
WORLD TRADE  
ORGANIZATION   
WT/DS381/10 
24 January 2012 
 (12-0452) 
 Original:   English 
  
 
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, 
MARKETING AND SALE OF TUNA AND TUNA PRODUCTS 
 
Notification of an Appeal by the United States under Article 16.4 and Article 17 
of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and under Rule 20(1) 
of the Working Procedures for Appellate Review 
 
  The following notification, dated 20 January 20 12, from the Delegation of the United States, 
is being circulated to Members. 
 
_______________ 
 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the  Working Procedures for Appellate Review , the 
United States hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the Report of the Panel in United States – Measures C oncerning the Importation, 
Marketing and Sale of Tuna and Tuna Products (WT/DS381/R) ("Panel Report") and certain legal 
interpretations developed by the Panel. 
 
1. The United States seeks review by the Appella te Body relating to the Panel's findings and 
legal conclusion that the U.S. dolphin safe labeling provisions
1 constitute technical regulations within 
the meaning of the Agreement on Technical Barriers to Trade  ("TBT Agreement").  This conclusion 
is in error and is based on erroneous findings on  issues of law and legal interpretations of the 
TBT Agreement, including: 
 
(a) the Panel's interpretation and applicati on of the term "with which compliance is 
mandatory" in the definition of a techni cal regulation in Annex 1.1 of the TBT 
Agreement2;  and 
 
                                                      
1See Panel Report, para. 2.2.  The U.S. dolphin safe labeling provisions include the Dolphin Protection 
Consumer Information Act ("DPCIA"),  regulations promulgated in accordance with the DPCIA, as codified in 
Title 50, Section 216 of the Federal Regulations, and  the ruling in Earth Island Institute v. Hogarth, 494 F.3d 
757 (9th Cir. 2007). 
2See Panel Report, paras. 7.100-7.111. WT/DS381/AB/R 
Page 156  
 
(b) the Panel's finding that U.S. dolphin safe labeling provisions are mandatory within 
the meaning of Annex 1.1 of the TBT Agreement.
3 
 As a result of the foregoing errors, the United Stat es requests the Appellate Body also to reverse the 
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in 
paragraph 8.3 of the Panel Report. 
 2. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the 
United States requests the Appellate Body find that  the Panel failed to make an objective assessment 
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures 
may only partially ensure that consumers are in formed about whether tuna was caught by using a 
method that adversely affects dolphins.
4  The Panel drew this conclusion based on factual findings 
that were without a sufficient evidentiary basis,  without assessing the totality of the evidence, and 
without adequate explanation, including:  
(a) the Panel's conclusion that Mexico h as demonstrated that the use of fishing 
techniques other than setting on dolphins outside of the Eastern Tropical Pacific ("ETP") may produce and has produced significant levels of dolphin bycatch
5; 
 
(b) the Panel's finding that the U.S. provisions  do not allow the consumer to accurately 
distinguish between tuna caught in a manner that adversely affects dolphins and other 
tuna6; 
 
(c) that the threats faced by dolphins outsi de the ETP are not demonstrated to be lower 
than similar threats faced by dolphins in the ETP7;  
 
(d) that the differences with respect to the de pletion status of the dolphin stocks at issue 
inside and outside of the ETP are not su fficient to justify the differences in 
certification requirements under the U.S. provisions8;  and 
 
(e) that the requirements applicable in diffe rent fisheries under the U.S. provisions are 
not calibrated to the likelihood of dolphi ns being killed or seriously injured.9 
 
As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the 
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in 
paragraph 8.3 of the Panel Report.  
3. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the 
United States requests the Appellate Body find that  the Panel failed to make an objective assessment 
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures 
may only partially fulfill their stated objective of contributing to the protection of dolphins by ensuring that the U.S. market is not used to encour age fishing fleets to catch tuna in a matter that 
adversely affects dolphins.
10  The Panel drew this conclusion based on factual findings that were 
without a sufficient evidentiary basis, without asses sing the totality of the evidence, and without 
adequate explanation, including: 
                                                      
3See Panel Report, paras. 7.113-7.145. 
4See Panel Report, paras. 7.592, 7.599. 
5See Panel Report, paras. 7.517-7.531. 
6See Panel Report, paras. 7.542-7.545.  
7See Panel Report, para. 7.562. 
8See Panel Report, paras. 7.550.  
9See Panel Report, paras. 7.559-7.561. 
10See Panel Report, paras. 7.592, 7.599.  WT/DS381/AB/R 
 Page 157 
 
 
 
(a) the Panel's conclusions and findings as set forth in paragraphs 2(a)-(e) above11;  and 
 (b) that the U.S. provisions do not calibrate  the dolphin safe certification requirements to 
the likelihood of interaction and harmful effects to dolphins.
12 
 
As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the 
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in 
paragraph 8.3 of the Panel Report.  
4. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the 
United States seeks review by the Appellate Body of  the Panel's legal conclusion Mexico identified a 
reasonably available, less trade-restrictive alte rnative that would achieve a level of protection 
equivalent to that achieved by the U.S. provisions.
13  This conclusion is in error and is based on 
erroneous findings on issues of law and legal in terpretations of the TBT Agreement, including: 
 
(a) the conclusion that the ex tent to which consumer would be misled or deceived would 
be no greater under the proposed alternative than under the U.S. measures14; 
 
(b) that the proposed alternative would not create greater risks to dolphins in the ETP 
than the U.S. provisions, and would fulfill the U.S. objectives at a level equivalent to 
the U.S. provisions15; 
 
(c) that significant dolphin mortality arises outside of the ETP from fishing techniques 
other than setting on dolphins16; 
 
(d) that the U.S. provisions do not address adverse impacts from fishing techniques other 
than setting on dolphins outside the ETP17;  and 
 
(e) that at least some of the dolphin populations affected by fishing techniques other than 
setting on dolphins are facing risks at least equivalent to those currently faced by dolphin populations in the ETP under Agreement on International Dolphin 
Conservation Program ("AIDCP") monitoring.
18 
 As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the 
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in 
paragraph 8.3 of the Panel Report. 
 
5. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the 
United States seeks review by the Appellate Body of  the Panel's legal conclusion that U.S. dolphin 
safe labeling provisions are more trade-restrictive than necessary to fulfill th eir legitimate objectives, 
taking account of the risks non-fulfilment would create.   This conclusion is in error and is based on 
erroneous findings on issues of law and legal in terpretations of the TBT Agreement, including: 
 
(a) the Panel's conclusions as set forth in paragraph 4;  and 
                                                      
11See Panel Report, para. 7.590. 
12See Panel Report, para. 7.600. 
13See Panel Report, para. 7.578. 
14See Panel Report, paras. 7.573-7.574, 7.577, 7.618-7.619. 
15See Panel Report, para. 7.614, 7.617. 
16See Panel Report, para. 7.613. 
17See Panel Report, para. 7.613. 
18See Panel Report, para. 7.617. WT/DS381/AB/R 
Page 158  
 
 
(b) that the proposed alternative would be less trade-restrictive than the U.S. provisions, 
in that it would allow greater competitive opportunities on the U.S. market to products with access to the AIDCP label.
19 
 
As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the 
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in 
paragraph 8.3 of the Panel Report.  6. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the 
United States requests the Appellate Body find that  the Panel failed to make an objective assessment 
of the matter before it as called fo r by Article 11 of the DSU by conc luding that Mexico had identified 
an alternative that is less trade restrictive than the U.S. provisions.  The Panel drew this conclusion 
based on factual findings that were without a sufficient evidentiary basis, without assessing the 
totality of the evidence, and without adequate e xplanation, including that the proposed alternative 
would allow greater competitive opportunities on the U.S. market to products with access to the 
AIDCP label.
20  As a result of the foregoing errors, the Un ited States also requ ests the Appellate Body 
to reverse the Panel's legal conclu sion in paragraph 8.1(b) of the Panel Report and its recommendation 
in paragraph 8.3 of the Panel Report.  7. If the Appellate Body were to reject the U. S. appeal set out in paragraph 1, then the 
United States seeks review by the Appellate Body of the Panel's finding that the AIDCP dolphin safe 
definition and certification constitute a "relevant international standard" within the meaning of 
Article 2.4 of the TBT Agreement.  This conclusion is in error and is based  on erroneous findings on 
issues of law and legal interpretations of the TB T Agreement, including the Panel's finding that the 
AIDCP is an international standardizing organiza tion for the purpose of Article 2.4 of the TBT 
Agreement.
21  The United States requests the Appellate B ody find that the Panel failed to make an 
objective assessment of the matter before it as called for by Article 11 of the DSU by concluding that 
there are "institutional links" between the AI DCP and the Inter-American Tropical Tuna 
Commission.22 
  
__________ 
                                                      
19See Panel Report, para. 7.568. 
20See Panel Report, para. 7.568. 
21See Panel Report, paras. 7.678-7.693. 
22See Panel Report, para. 7.684.  WT/DS381/AB/R 
 Page 159 
 
 
ANNEX II 
 
WORLD TRADE  
ORGANIZATION   
WT/DS381/11 
27 January 2012 
 (12-0568) 
 Original: English 
   
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, 
MARKETING AND SALE OF TUNA AND TUNA PRODUCTS 
 
Notification of an Other Appeal by Mexico 
under Article 16.4 and Article 17 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
 
  The following notification, dated 25 January 201 2, from the Delegation of Mexico, is being 
circulated to Members. 
 
_______________ 
 
 1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (DSU) and Rule 23(1) of the Working Procedures for Appellate Review , 
the United Mexican States ("Mexico") hereby notifi es its decision to appeal to the Appellate Body 
certain issues of law covered in the Panel Report in United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381/R) ("Panel Report"), 
certain legal interpretations develope d by the Panel in this dispute, a nd the Panel's failure to make an 
objective assessment of the matter as required by Article 11 of the DSU. 
 
2. Pursuant to Rule 23(2)(c)(ii) of the  Working Procedures for Appellate Review , this Notice of 
Other Appeal includes an indicative list of the para graphs of the Panel Report containing the alleged 
errors, without prejudice to Mexico's ability to refe r to other paragraphs of the Panel Report in the 
context of this appeal. 
 
I. A
PPEAL OF THE PANEL 'S CONCLUSION THAT THE U.S.  DOLPHIN SAFE LABELLING 
PROVISIONS ARE NOT INCONSISTENT WITH ARTICLE 2.1 OF THE TBT  AGREEMENT AND 
THE PANEL 'S FAILURE TO MAKE AN OBJECTIVE ASSESSMENT OF THE MATTER BEFORE 
IT AS REQUIRED BY ARTICLE 11 OF THE DSU 
3. Mexico seeks review by the Appellate Body of  the Panel's findings that the U.S. dolphin-safe 
labeling provisions are not inconsiste nt with Article 2.1 of the TBT Ag reement.  This conclusion is in 
error and is based on erroneous findings on issues of law, related interpre tations and the Panel's 
failure to make an objective assessment of the matt er before it as required by Article 11 of the DSU, 
including:  WT/DS381/AB/R 
Page 160  
 
(a) the Panel erred in the interpretation and application of the phrase "treatment no less 
favourable" in Article 2.1 of the TBT Agreem ent by applying what Mexico's refers to 
as a "denial of access to an advantage" test
1; 
(b) the Panel erred in the interpretation a nd application of Article 2.1 of the 
TBT Agreement by ignoring the context of this provision including the preamble to the TBT Agreement and certain provi sions in other WTO Agreements.
2  The Panel 
also erred in its findings and conclusions  in respect of linking the less favourable 
treatment to the foreign origin of the product and the actions of private actors; 
(c) the Panel failed to make an objective assessment of the matter before it as required by 
Article 11 of the DSU with respect to th e arguments and evidence put forward by 
Mexico in support of its claim that Mexican tuna products are being denied competitive opportunities by the U.S. dolphin safe labelling provisions
3;  and  
(d) If the Appellate Body finds that the Panel's denial of access to an advantage test is a 
permissible interpretation of Article 2.1,  the Panel failed to make an objective 
assessment of the matter before it and thereby acted inconsistently with Article 11 of 
the DSU.  The Panel failed to consider a nd take into account evidence put forward by 
Mexico that it was impossible for the Mexi can tuna industry to change its fishing 
practices to adapt to the U.S. measures.4 
As a result of the foregoing errors, Mexico requests the Appellate Body to reverse the Panel's legal 
conclusion in paragraph 8.1( a) of the Panel Report. 
 
II. APPEAL OF THE PANEL 'S DECISION TO EXERCISE JUDICIAL ECONOMY WITH RESPECT TO 
MEXICO 'S CLAIMS UNDER ARTICLES I:1 AND III:4  OF THE GATT  1994  AND THE PANEL 'S 
FAILURE TO MAKE AN OBJECTIVE ASSESSMENT OF THE MATTER BEFORE IT AS 
REQUIRED BY ARTICLE 11 OF THE DSU 
5. Mexico seeks review by the Appellate Body of the Panel's decision to exercise judicial 
economy and decline ruling on Mexico's discriminati ons claims under Articles I:1 and III:4 of the 
GATT 1994.5  Mexico addresses the following errors in th e Panel's decision to exercise judicial 
economy with respect to Mexico's claims under Articles I:1 and III:4 of the GATT 1994: 
 
(a) the Panel exercised false judicial economy  by not addressing all the issues before it 
that were necessary for the effective reso lution of the dispute.  After finding no 
violation of Article 2.1 of the TBT Agreem ent, the Panel should have continued its 
analysis of the more general provisi ons contained in the GATT 1994;  and 
(b) the Panel failed to examine Mexico's clai ms under the GATT 1994 led to its failure to 
conduct an objective assessment of the matter before it as required by Article 11 of 
the DSU.  
6. As a result of the foregoing errors, Mexico re quests the Appellate Body to reverse the Panel's 
legal conclusion in paragraph 8.2 and Section VII of the Panel Repor t and complete the analysis of 
Mexico's claims under Articles I:1 and III:4 of the GATT 1994.  
                                                      
1See Panel Report, paras. 7.191-7.378, in particul ar, 7.269-7.284, 7.304-7.311, 7.333, 7.334, 7.345-
7.350, 7.361-7.368, 7.374-7.378.  
2See Panel Report, paras. 7.268-7.278.  
3See Panel Report, paras. 7.365-7.368 and 7.374-7.378. 
4See Panel Report, paras. 7.310, 7.323, 7.334, 7.343-7.344, 7.349. 
5See Panel Report, paras. 7.741-7.748 and 8.2.  WT/DS381/AB/R 
 Page 161 
 
 
III. APPEAL OF THE PANEL 'S CONCLUSION THAT THE U.S.  DOLPHIN SAFE LABELLING 
PROVISIONS ARE NOT INCONSISTENT WITH ARTICLE 2.4 OF THE TBT  AGREEMENT  
7. Mexico seeks review by the Appellate Body of  the Panel's findings that the U.S. dolphin-safe 
labeling provisions are not inconsistent with Article 2.4 of the TBT Agreement.6  This conclusion is in 
error and is based on erroneous findings on issues of law, related interpre tations and the Panel's 
failure to make an objective assessment of the matt er before it as required by Article 11 of the DSU, 
including: 
 
(a) the Panel erred in not evaluating whether th e AIDCP standard would be effective and 
appropriate in fulfilling the U.S. objectives in fisheries outside the ETP.  In doing so, the Panel failed to make an objective assessment of the matter before it as required by Article 11 of the DSU;  and 
(b) the Panel applied an incorrect legal test in evaluating whether the AIDCP standard 
would be effective and appropriate to fulfill the U.S. objectives.
7 
8. As a result of the foregoing errors, Mexico requ ests the Appellate Body to reverse the Panel's 
legal conclusion in paragraph 8.1(c) of the Panel Report . 
 
IV. CONDITIONAL APPEAL OF THE PANEL 'S FINDING THAT THE SECOND OBJECTIVE OF THE 
U.S.  DOLPHIN SAFE LABELLING PROVISIONS IS A LEGITIMATE OBJECTIVE WITHIN THE 
MEANING OF ARTICLE 2.2 OF THE TBT  AGREEMENT  
9. This appeal is conditional on the Appellate Body's reversal of the Panel's finding that the U.S. 
dolphin safe labeling provisions are inconsistent  with Article 2.2 of the TBT Agreement. 
 10. Mexico seeks review by the Appellate Body of  the Panel's finding that the second objective of 
the U.S. dolphin safe labeling provisions is a legiti mate objective within the meaning of Article 2.2 of 
the TBT Agreement.
8  The Appellate Body does not need to  review this legal interpretation and 
conclusion if the condition to this appeal is not met. 
 
V. CONDITIONAL APPEAL OF THE PANEL 'S ERRORS IN THE LEGAL ANALYSIS ON WHETHER 
THE U.S.  DOLPHIN SAFE LABELLING PROVISIONS ARE "MORE TRADE RESTRICTIVE 
THAN NECESSARY TO FULFILL THE LEGITIMATE OBJECTIVE " 
11. This appeal is conditional on the Appellate Body 's reversal of the Panel's finding that the U.S. 
dolphin safe labeling provisions are inconsistent with Article 2.2 of the TBT Agreement and the 
rejection of Mexico's conditional appeal that the second objective of the U.S. dolphin-safe provisions 
is not a legitimate objective.  12. Mexico seeks review by the Appellate Body of  the Panel's legal errors in its analysis on 
whether the U.S. dolphin safe labelling provisions are more trade restrictive than necessary to fulfill 
the legitimate objective.
9  In particular, the Panel erred in c ontinuing its analysis under Article 2.2 of 
the TBT Agreement after it had concluded that the U.S. measures fulfill their objectives "only 
partially".10  The Appellate Body does not need to review these errors if the condition to this appeal is 
not met.  
__________ 
                                                      
6See Panel Report, paras. 8.1(c) and 7.717-7.740.  
7See Panel Report, paras, 7.717-7.740. 
8See Panel Report, paras. 7.400-7.444. 
9Panel Report, paras. 7.445-7.623. 
10See, e.g., Panel Report, paras. 7.563 and 7.599.