UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO NOTIFICATION OF AN 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
Document: 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
Date: 1 July 2015
Document codes: WT/DS381/25
Complainant: Mexico
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Ecuador, EU, Guatemala, India, Japan, South Korea, New Zealand, Norway
Dispute stage: Implementation & Compliance
Agreements cited: Art. I:1, III:4  GATT 1994Art. 2.1, 2.2, 2.3, 2.4  Technical Barriers to Trade (TBT)

UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND
SALE OF TUNA AND TUNA PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO
NOTIFICATION OF AN 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 communication, dated 10 June 2015, from the Delegation of Mexico, is being
circulated to Members.

Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Recourse to
Article 21.5 of the DSU by Mexico) () (Panel Report).
2. Pursuant to Rules 23(1) and 23(3) of the Working Procedures for Appellate Review, Mexico
is simultaneously filing this Notice of Other Appeal and its Other Appellant Submission with the
Appellate Body Secretariat.
3. The measure at issue in this dispute concerns the amended tuna measure which comprises:
(i) Section 1385 ("Dolphin Protection Consumer Information Act") (DPCIA), as contained in
Subchapter II ("Conservation and Protection of Marine Mammals") of Chapter 31 ("Marine Mammal
Protection"), in Title 16 of the U.S. Code; (ii) U.S. Code of Federal Regulations, Title 50, Part 216,
Subpart H ("Dolphin Safe Tuna Labeling"), as amended by the 2013 Final Rule; and (iii) the court
ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).
4. 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 paragraphs of the Panel Report containing the
alleged errors, without prejudice to Mexico's ability to refer to other paragraphs of the Panel
Report in the context of this appeal.
I. The Panel Erred in Finding and Concludi ng that Specific Requirements under the
Amended Tuna Measure were Inconsistent with WTO Provisions Rather than the
Measure as a Whole

5. Mexico seeks review by the Appellate Body of , and requests the Appellate Body to modify,
the findings and conclusions of the Panel that only two of the three elements of the amended tuna
measure are inconsistent with Article 2.1 of the Agreement on Technical Barriers to Trade
(TBT Agreement) and Articles I:1 and III:4 of the General Agreement on Tariffs and Trade 1994
(GATT 1994).

6. While Mexico agrees with some of the reasoning and findings in the Panel's Report, the
Panel should have explicitly concluded that the amended tuna measure as a whole is inconsistent
with those provisions rather than limiting its ruling to specific elements.
7. The Panel should have concluded that the amended tuna measure as a whole is inconsistent
with Articles 2.1 of the TBT Agreement, I:1 an d III:4 of the GATT 1994 and, in the case of the
GATT 1994, the inconsistencies were not justifiable under Article XX. The Panel's failure to do so is
a legal error.
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II. The Panel Erred in its Findings Regard ing the Fishing Method Eligibility Criteria
when Assessing the Consistency of the Amen ded Tuna Measure with Article 2.1 of the
TBT Agreement

8. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the findings and conclusion of the Panel, with respect to the fishing method eligibility criteria when
assessing the consistency of the amended tuna measure with Article 2.1 of the TBT Agreement.
The Panel's conclusion is an error and is based on erroneous findings on issues of law and legal
interpretation.
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9. Particularly, the Panel erred in finding that the Appellate Body previously ruled on this issue.
It further erred in finding that the eligibility criteria were applied in an even-handed manner.
Instead, it should have found that the eligibility criteria lacked even-handedness and, therefore, by
virtue of the eligibility criteria, the detrimental impact of the amended tuna measure does not
stem exclusively from a legitimate regulatory distinction.
10. Mexico also requests the Appellate Body to find that the panel failed to make an objective
assessment of the matter before it in accordance with Article 11 of the DSU in relation to the
following factual findings: (i) changing its factual findings regarding unobserved adverse effects for
dolphin sets from the original proceedings without any new evidence to support such a change; (ii)
finding that other fishing methods have no unobservable adverse effects and omitting
consideration of contrary evidence on the record; and (iii) finding that the Appellate Body found
that dolphin sets are particularly more harmful to dolphins than other fishing methods when no
such finding was made by the Appellate Body.
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11. As a result of these errors, Mexico requests that the Appellate Body modify the reasoning of
the Panel, reverse the Panel's finding that the eligibility criteria are applied in an even-handed
manner and find, instead, that by virtue of the eligibility criteria, the detrimental impact of the
amended tuna measure does not stem exclusively fr om a legitimate regulatory distinction and, for
this additional reason, the amended tuna measure is inconsistent with Article 2.1.
III. The Panel Erred in its Findings Re garding Independent Observers under the
Certification Requirements when Assessing the Consistency of the Amended Tuna
Measure with Article 2.1 of the TBT Agreement

12. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the findings and conclusions of the Panel, with respect to the findings regarding independent
observers under the certification requirements when assessing the consistency of the amended
tuna measure with Article 2.1 of the TBT Agreement. This conclusion is an error and is based on
erroneous findings on issues on law and legal interpretation.
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13. Particularly, the Panel erred by not finding that (i) in respect of dolphin-safe certifications,
captains in some cases may have an economic conflict of interest, making their certifications less

1 The Panel's errors in law are contained, inter alia, in paragraphs 7.97-7.108, 7.179, 7.233, 7.246,
7.258-7.259, 7.283, 7.382, 7.400, 7.428, 7.430, 7.442, 7.451, 7.455-7.456, 7.464-7.465, 7.492, 7.501,
7.503, 7.504, 7.541, 7.605, 7.607, 7.611, 8.2(b), 8.2(c), 8.3(b), 8.3(c), 8.5(b), 8.5(c) of the Panel Report.
2 The Panel's errors in law are contained, inter alia, in paragraphs 7.117-7.134 and 8.2(a) of the Panel
Report.
3 The Panel's errors in law are contained, inter alia, in paragraphs 7.130, 7.135, 7.120, 7.130, 7.132,
7.134 and 7.135 of the Panel Report.
4 The Panel's errors in law are contained, inter alia, in paragraphs 7.208-7.211, 7.241-7.242 and
7.595-7.597 of the Panel Report.

reliable, and (ii) the justification for differing requirements provided by the United States that
circumstances in the Eastern Tropical Pacific (ETP) are unique is in fact contradicted by evidence
that tuna associate with dolphins in other ocean regions, in particular the Indian Ocean. Mexico
requests the Appellate Body to find that the Panel failed to make an objective assessment of the
facts, as required by Article 11 of the DSU, with respect to these findings.
14. As a result of these errors, Mexico requests that the Appellate Body modify the reasoning of
the Panel and find, for the additional reasons that dolphin sets are made outside of the ETP and
captains' self-certifications create gaps in the dolphin-safe designation, that the certification
requirements are not applied in an even-handed manner, and accordingly, the detrimental impact
of the amended tuna measure does not stem exclus ively from a legitimate regulatory distinction,
and for this additional reason the amended tuna measure is inconsistent with Article 2.1.
IV. The Panel Erred in its Findings Regardin g the Eligibility Criteria when Assessing
the Consistency of the Amended Tuna Measure under the Chapeau of Article XX

15. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the findings and conclusions of the Panel, with respect to the findings regarding the eligibility
criteria when assessing the consistency of the amended tuna measure under the chapeau of
Article XX of the GATT 1994. This conclusion is an error and is based on erroneous findings on
issues on law and legal interpretation.
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16. As a result of these errors, Mexico requests that the Appellate Body modify the reasoning of
the Panel and find that for this additional reason that the eligibility requirements demonstrate that
the amended tuna measure is applied in manner that constitutes arbitrary and unjustifiable
discrimination between countries where the same conditions prevail and, therefore, the
requirements of the chapeau are not met.