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/DS381/11 
Page 2  
 
  (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.  
                                                      
1 See Panel Report, paras. 7.191-7.378, in particular, 7.269-7.284, 7.304-7.311, 7.333, 7.334, 7.345-
7.350, 7.361-7.368, 7.374-7.378.  
2 See Panel Report, paras. 7.268-7.278.  
3 See Panel Report, paras. 7.365-7.368 and 7.374-7.378. 
4 See Panel Report, paras. 7.310, 7.323, 7.334, 7.343-7.344, 7.349. 
5 See Panel Report, paras. 7.741-7.748 and 8.2.  WT/DS381/11 
 Page 3 
 
  
  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. 
__________ 
                                                      
6 See Panel Report, paras. 8.1(c) and 7.717-7.740.  
7 See Panel Report, paras, 7.717-7.740. 
8 See Panel Report, paras. 7.400-7.444. 
9 Panel Report, paras. 7.445-7.623. 
10 See, e.g., Panel Report, paras. 7.563 and 7.599.