UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE UNITED STATES UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO REPORTS OF THE PANELS
Document: MARKETING AND SALE OF TUNA AND TUNA PRODUCTS SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO REPORTS OF THE PANELS Addendum
Date: 26 October 2017
Document codes: WT/DS381/RW/USA/Add.1; WT/DS381/RW2/Add.1; WT/DS381/RW/USA; WT/DS381/RW2.
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 THE UNITED STATES
UNITED STATES – MEASURES CONCERNING THE IMPORTATION,
MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO
REPORTS OF THE PANELS
Addendum
This addendum contains Annexes A to C to the Report s of the Panel s to be found in document
 and

 •

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANELS
Contents Page
Annex A-1 Working Procedures of the Panel (Article 21.5 – United States) A-2
Annex A-2 Working Procedures of the Panel (Article 21.5 – Mexico II) A-6
Annex A-3 Procedures of the Panels Concerning Business Confidential Information A-10
Annex A-4 Additional Working Procedures of the Panels on Partially Open Hearings A-11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Executive summary of the arguments of the United States B-2
Annex B-2 Executive summary of the arguments of Mexico B-13
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Australia C-2
Annex C-2 Executive summary of the arguments of Brazil C-5
Annex C-3 Executive summary of the arguments of Canada C-8
Annex C-4 Executive summary of the arguments of Ecuador C-12
Annex C-5 Executive summary of the arguments of the European Union C-13
Annex C-6 Executive summary of the arguments of Japan C-16
Annex C-7 Executive summary of the arguments of New Zealand C-19
Annex C-8 Executive summary of the arguments of Norway C-21
 •

- A-1 -

ANNEX A
WORKING PROCEDURES OF THE PANELS
Contents Page
Annex A-1 Working Procedures of the Panel (Article 21.5 – United States) A-2
Annex A-2 Working Procedures of the Panel (Article 21.5 – Mexico II) A-6
Annex A-3 Procedures of the Panels Concerning Business Confidential Information A-10
Annex A-4 Additional Working Procedures of the Panels on Partially Open Hearings A-11
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ANNEX A-1
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE
OF TUNA AND TUNA PRODUCTS
(WT/DS381)
RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE UNITED STATES

WORKING PROCEDURES OF THE PANEL
Adopted on 4 July 2016

Modified on 3 August 2016

1. In its p roceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the d ocuments submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted by another Member to the Panel which the submitting Member
has designated as confidential. Business Confidential Information (BCI), as defined in the Panel's
Additional Procedures Concerning Business Confidential Information, shal l be submitted and
treated in accordance with those Additional Procedures. Where a party submits a confidential
version of its written submissions to the Panel, it shall also, upon request of a Member, provide a
non-confidential summary of the information contained in its submissions that co uld be disclosed
to the public.
3. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to
appear before it. The Panel may, upon request by a party or third party, authorize that party, or
third party, to lift the confidentiality, by way of delayed viewing , of its own statements made
during the Panel's meeting with the parties, or the special session for third parties. Such lifting of
confidentiality will be authorized only where it does not impair or otherwise interfere with either
the rights of the other party or other third parties or the integrity and promptness of the dispute
settlement process. Moreover, such lifting of confidentiality shall be in accordance with additional
working procedures, to be adopted by the Panel after consulting with the partie s. A request that
the Panel adopt additional working procedures to facilitate this lifting of confidentiality shall be
made to the Panel no fewer than six weeks before the meeting where the statements in question
will be delivered.
4. Each party and third par ty has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have responsibility for all members
of its own delegation and shall ensure that each member of such delegation acts in accorda nce
with the DSU and these Working Procedures, particularly with regard to the confidentiality of the
proceedings.
Submissions

5. Before the substantive meeting of the Panel with the parties, each party shall transmit to the
Panel a first written submission, and subsequently a written rebuttal, in which it presents the facts
of the case and its arguments, and counter -arguments, respectively, in accordance with the
timetable adopted by the Panel.
6. A party shall submit any request for a preliminary ruling at t he earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If the United States
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

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requests such a ruling, Mexico shall submit its response to the request in its first written
submission. If Mexico requests s uch a ruling, the United States shall submit its response to the
request prior to the substantive meeting of the Panel, at a time to be determined by the Panel in
light of the request. Exceptions to this procedure shall be granted upon a showing of good cause.
7. Each party shall submit all factual evidence to the Panel no later than during the substantive
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions
or comments on answers provided by the other party. Excep tions to this procedure shall be
granted upon a showing of good cause. Where such exception has been granted, the Panel shall
accord the other party a period of time for comment, as appropriate, on any new factual evidence
submitted after the substantive meeting.
8. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of ti me for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, preferably no later than the next filing or meeting (whichever occurs earlier)
following the submi ssion which contains the translation in question. Any objection shall be
accompanied by a detailed explanation of the grounds of objection and an alternative translation.
9. In order to facilitate the work of the Panel, each party and third party is invited t o make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
10. To facilitate the maintenance of the record of the dispute, and maximize the clarity of
submissions, e ach party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by the United States could be numbered
US-1, US-2, etc. If the last exhibit in connection with the first submission was numbered US-5, the
first exhibit of the next submission thus would be numbered US -6. The first time a party or third
party submits to the Panel an exhibit that corresponds to an exhibit submitted in the original panel
proceedings or in the previous complian ce proceeding, the party or third party submitting such
exhibit shall also identify, within brackets, the number of the original exhibit along with the prior
proceeding in which it was submitted.
11. Any exhibit submitted by a party or third party in US – Tuna II (Article 21.5 – Mexico II)
shall automatically form part of the record of this proceeding. Where a party or third party wishes
to refer to an exhibit submitted in US – Tuna II (Article 21.5 – Mexico II) , it shall add an
appropriate bracket after referring to the exhibit to clarify (e.g. Exhibit US -2 (US – Tuna II (Article
21.5 – Mexico II))).
Questions

12. The Panel may at any time pose questions to the parties and third parties, orally in the
course of the substantive meeting or in writing.
Substantive meeting

13. Each party shall provide to the Panel the list of members of its delegation in advance of the
meeting with the Panel and no later than 5.00 p.m. the previous working day.
14. The substantive meeting of the Panel shall be conducted as follows:
a. The Panel shall invite the United States to make an opening statement to present its
case first. Subsequently, the Panel shall invite Mexico to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies to the interpreters.
Each party shall make available to the Panel and the other party the final version of it s
opening statement and its closing statement, if any, preferably at the end of the
meeting, and in any event no later than 5.00 p.m. on the first working day following the
meeting.
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b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask questions or make comments, through the Panel. Each party shall send in writing,
within a timeframe to be determined by the Panel, any questions to the other party to
which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questi ons to the parties to which
it wishes to receive a response in writing. Each party shall be invited to respond in
writing to such questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each par ty an opportunity to
present a brief closing statement, with the United States presenting its statement first.
Third parties

15. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the substantive meeting of the Panel with the parties, in accordance with the timetable adopted by
the Panel.
16. Each third party shall also be invited to present its views orally during a session of the
substantive meeting, set aside for that purpose. Each third party shall provide to the P anel the list
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous
working day.
17. The third party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third -party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. Third parties shall make
available to the Panel, the parties and other third parties the final versions of their
statements, preferably at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing.
d. The Panel may subsequently pose q uestions to the third parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

18. The description of the arguments of the parties and third parties in the descriptive part of
the Panel report shall consist of executive summaries provided by the parties and t hird parties,
which shall be annexed as addenda to the report. These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
19. Each party shall submit an e xecutive summary of the facts and arguments as presented to
the Panel in its written submissions and oral statements, in accordance with the timetable adopted
by the Panel. This summary may also include a summary of responses to questions. Each such
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive
part of its report, or annex to its report, the parties' responses to questions.
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20. Each third party shall submit an executive summary of its arguments as presented in it s
written submission and statement in accordance with the timetable adopted by the Panel. This
summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review
21. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written requ est for review in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
23. The interim report, as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file four (4) paper copies of all documents it submits to
the Panel. Exhibits may be provided in four (4) copies on CD -ROM or DVD and two (2)
paper copies. The DS Registrar shall stamp the documents with th e date and time of
the filing. The paper version shall constitute the official version for the purposes of the
record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, in Microsoft Word format,
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to
****.****@wto.org@wto.org, ****.****@wto.org, ****.****@wto.org,
****.****@wto.org and ****.****@wto.org. If a CD -ROM or DVD is provided, it shall
be filed with the DS Registry.
d. Each party and third party shall file its documents with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or third party may submit its documents
to another party or third party in electronic format only, subject to the recipient party or
third party's prior written approval and provided that the Panel Secretary is notified.
Each party and third party shall confirm, in writing, that copie s have been served as
required at the time it provides each document to the Panel.
e. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate . When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
Modification of working procedures

25. The Panel may modify these working procedures after consulting with the parties.
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

- A-6 -

ANNEX A-2
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE
OF TUNA AND TUNA PRODUCTS
(WT/DS381)
SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO

WORKING PROCEDURES OF THE PANEL
Adopted on 3 August 2016

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the documents submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted by another Member to the Panel which the submitting Member
has designated as confidential. Business Confidential Information (BCI), as defined in the Panel's
Additional Pro cedures Concerning Business Confidential Information, shall be submitted and
treated in accordance with those Additional Procedures. Where a party submits a confidential
version of its written submissions to the Panel, it shall also, upon request of a Memb er, provide a
non-confidential summary of the information contained in its submissions that could be disclosed
to the public.
3. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Sett lement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to
appear before it. The Panel may, upon request by a party or third party, authorize that party, or
third par ty, to lift the confidentiality, by way of delayed viewing, of its own statements made
during the Panel's meeting with the parties, or the special session for third parties. Such lifting of
confidentiality will be authorized only where it does not impair o r otherwise interfere with either
the rights of the other party or other third parties or the integrity and promptness of the dispute
settlement process. Moreover, such lifting of confidentiality shall be in accordance with additional
working procedures, t o be adopted by the Panel after consulting with the parties. A request that
the Panel adopt additional working procedures to facilitate this lifting of confidentiality shall be
made to the Panel no fewer than six weeks before the meeting where the statemen ts in question
will be delivered.
4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have responsibility for all members
of its own delegation and shall ensure that each member of such delegation acts in accordance
with the DSU and these Working Procedures, particularly with regard to the confidentiality of the
proceedings.
Submissions

5. Before the substantive meeting of the Panel with the parties, each party shall transmit to the
Panel a first written submission, and subsequently a written rebuttal, in which it presents the facts
of the case and its arguments, and counter -arguments, respectively, in accordance with the
timetable adopted by the Panel.
6. A party shall submit any request for a preliminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If Mexico requests such
a ruling, the United States shall submit its response to the request in its first written submission. If
the United States requests such a ruling, Mexico shall submit its response to the request prior to
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

- A-7 -

the substantive meeting of the Panel, at a time to be determined by the Panel in light of the
request. Exceptions to this procedure shall be granted upon a showing of good cause.
7. Each party shall submit all factual evidence to the Panel no later than during the substantive
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions
or comments on answers provided by the other party. Exceptions to this procedure shall be
granted upon a showing of good cause. Where such exception has been granted, the Panel shall
accord the other party a period of time for comment, as appropriate, on an y new factual evidence
submitted after the substantive meeting.
8. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, preferably no later than the next filing or meeting (whichever occurs earlier)
following the submission which contains the translation in question. Any objection shall be
accompanied by a detailed explanation of the grounds of objection and an alternative translation.
9. In order to facilitate the wor k of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
10. To facilitate the maintenance of the record of the dispute, and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by the United States could be numbered
US-1, US-2, etc. If the last exhibit in connection with the first submission was numbered US-5, the
first exhibit of the next submission thus would be numbered US -6. The first time a party or third
party submits to the Panel an exhibit that corresponds to an exhibit submitted in the original panel
proceedings or in the previous compliance proceeding, the party or third party submitting such
exhibit shall also identify, within brackets, the number of the original exhibit along with the prior
proceeding in which it was submitted.
11. Any E xhibit submitted by a party or third party (other than India) in US – Tuna II
(Article 21.5 – US) shall automatically form part of the record of this proceeding. Where a party or
third party wishes to refer to an exhibit submitted in US – Tuna II (Article 21.5 – US), it shall add
an appropriate bracket after referring to the exhibit to clarify (e.g. Exhibit US -2 ( US – Tuna II
(Article 21.5 - US))).
Questions

12. The Panel may at any time pose questions to the parties and third parties, orally in the
course of the substantive meeting or in writing.
Substantive meeting

13. Each party shall provide to the Panel the list of members of its delegation in advance of the
meeting with the Panel and no later than 5.00 p.m. the previous working day.
14. The substantive meeting of the Panel shall be conducted as follows:
a. The Panel shall invite Mexico to make an opening statement to present its case first.
Subsequently, the Panel shall invite the United States to present its point of view. Before
each party takes the floor, it sha ll provide the Panel and other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies to the interpreters.
Each party shall make available to t he Panel and the other party the final version of its
opening statement and its closing statement, if any, preferably at the end of the
meeting, and in any event no later than 5.00 p.m. on the first working day following the
meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask questions or make comments, through the Panel. Each party shall send in writing,
within a timeframe to be determined by the Panel, any questions to the other party to
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- A-8 -

which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the parties to which
it wishes to receive a response in writing. Each party shall be invited to respond in
writing to such questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Mexico presenting its statement first.
Third parties

15. The Panel shall invite each third party to transmit to the Panel a written submission pr ior to
the substantive meeting of the Panel with the parties, in accordance with the timetable adopted by
the Panel.
16. Each third party shall also be invited to present its views orally during a session of the
substantive meeting, set aside for that purpose . Each third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous
working day.
17. The third party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third -party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. Third parties shall make
available to the Panel, the parties and other third parties the final versions of their
statements, preferably at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties que stions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing.
d. The Panel may subsequently pose questions to the third parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party sha ll be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

18. The description of the arguments of the parties and third parties in the descriptive part of
the Panel report shall consist of executiv e summaries provided by the parties and third parties,
which shall be annexed as addenda to the report. These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
19. Each party shall submit an executive summary of the facts and arguments as presented to
the Panel in its written submissions and oral statements, in accordance with the timetable adopted
by the Panel. This summary may also include a summary o f responses to questions. Each such
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive
part of its report, or annex to its report, the parties' responses to questions.
20. Each third party shall submit an executive su mmary of its arguments as presented in its
written submission and statement in accordance with the timetable adopted by the Panel. This
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- A-9 -

summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review
21. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
23. The interim report, as well as the final report pr ior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file four (4) paper copies of all documents it submits to
the Panel. Exhibits may be provided in four (4) copies on CD -ROM or DVD and two (2)
paper copies. The DS Registrar shall stamp the documents with the date and time of
the filing. The paper version shall constitute the official version for the purposes of the
record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, in Microsoft Word format,
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to
****.****@wto.org@wto.org, ****.****@wto.org, ****.****@wto.org,
****.****@wto.org and ****.****@wto.org. If a CD -ROM or DVD is provided, it shall
be filed with the DS Registry.
d. Each party and third party shall file its documents with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or third party may submit its documents
to another party or third party in electronic format only, subject to the recipient party or
third party's prior written approval and provided that the Panel Secretary is notified.
Each party and third party s hall confirm, in writing, that copies have been served as
required at the time it provides each document to the Panel.
e. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
Modification of working procedures

25. The Panel may modify these working procedures after consulting with the parties.
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ANNEX A-3
PROCEDURES OF THE PANELS CONCERNING BUSINESS CONFIDENTIAL INFORMATION1
Adopted on 4 July 2016

1. These procedures apply to any busines s confidential information (BCI) that a party submits
to the Panel.
2. For the purposes of these procedures, BCI is defined as any information that has been
designated as such by the party submitting the information and that is not available in the public
domain and the release of which could reasonably be considered to cause or threaten to cause
harm to an interest of the person or entity that supplied the business information to the party.
3. No person may have access to BCI except a member of the Secret ariat or the Panel, a
party's or third party’s employee participating in the dispute, and a party's or third party’s outside
advisor for purposes of this dispute. However, an outside advisor is not permitted access to BCI if
that advisor is an officer or employee of an enterprise engaged in the production, export, or import
of tuna or tuna products. When a party or third party provides BCI to an outside advisor who is an
employee or officer of an industry association of such enterprises, that party or third party shall
obtain written assurances from such advisor that he or she has read and understands these
procedures and will not disclose any BCI in contravention of these procedures.
4. A party obtaining access to BCI as a result of the BCI being submitted in this dispute shall
treat it as confidential, i.e. shall not disclose that information other than to those persons
authorized to receive it pursuant to these procedures. Each party and third party shall have
responsibility in this regard for its employee s as well as any outside advisors for the purposes of
this dispute. BCI obtained under these procedures may be used only for the purpose of providing
information and argumentation in this dispute.
5. A party or third party submitting or referring to BCI in a document shall mark the cover and
each page of the document to indicate the presence of BCI in the document as follows: BCI shall
be placed between double brackets (for example, [[xx,xxx.xx]]). The cover and the top of each
page of the document shall co ntain the notice "Contains Business Confidential Information". Any
BCI that is submitted in electronic form shall be clearly marked with the phrase "Contains BCI" on
a label on the storage medium, and clearly marked with the phrase "Contains BCI" in the
electronic file name.
6. The parties, third parties, and the Panel shall store all documents containing BCI so as to
prevent unauthorized access to such information.
7. The Panel shall not disclose BCI, in its report or in any other way, to persons not autho rized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel makes its report publicly available, the
Panel shall give each party an opportunity to ensure that the r eport does not contain any
information that it has designated as BCI.

1 These procedures are adopted according to, and are an integral part of, the Panel's Working
Procedures of 4 July 2016.
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ANNEX A-4
UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE
OF TUNA AND TUNA PRODUCTS
(WT/DS381)
Recourse to Article 21.5 of the DSU by the United States
Second Recourse to Article 21.5 of the DSU by Mexico

ADDITIONAL WORKING PROCEDURES OF THE PANELS ON PARTIALLY OPEN MEETINGS
Adopted on 22 December 2016

Having regard to paragraph 3 of the Panels' Working Procedures, and having received a
request from the Unit ed States for the adoption of additional working procedures to facilitate the
lifting of the confidentiality of its statements at the Panels' meeting with the parties, the Panels
have, after consulting with the parties, adopted the following Additional Working Procedures:
1 DEFINITIONS
1.1 For the purposes of these Additional Working Procedures:
a. "Disclosing party" means any party that wishes to lift the confidentiality of its
statements at the Panels' meeting with the parties;
b. "Non-disclosing party" means any party that wishes to maintain the confidentiality of its
statements at the Panels' meeting with the parties;
c. "Disclosing third party" means any third party that wishes to lift the confidentiality of its
statements at the Panels' third party session.
d. "Non-disclosing third party" means any third party that wishes to maintain the
confidentiality of its statements at the Panels' third party session.
e. "Statement" means:
i. A party's opening statement;
ii. A party's closing statement;
iii. A party's responses to question s from the Panels concerning (a) issues of law;
and (b) the disclosing party's own exhibits, arguments, or positions (referred to
in these Working Procedures as a "paragraph 1.1(e)(iii) question");
excluding, however, any part or section of those items tha t discloses, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Any part or section of those items that discloses, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party shall, prior to the delayed viewing, be redacted in accordance with
the procedures provided for in Section 3.2 of these Additional Working Procedures.
f. "Third party statement" means:
i. A third party's statement at the Panels' third party session;
ii. A third party's responses to a paragraph 1.1(e)(iii) question;
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 excluding, however, any part or section of those items that discloses, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Any part or section of the items that discloses, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party shall, prior to the delayed viewing, be redacted in accor dance with
the procedures provided for in Section 3.2 or 4.3 of these Additional Working
Procedures.
g. "Delayed viewing" means the broadcasting by the WTO Secretariat, after the conclusion
of the Panels' meeting with the parties and third party session, of t he statements of
disclosing parties and disclosing third parties that have been recorded and redacted in
accordance with Sections 3 and 4 of these Additional Working Procedures.
2 GENERAL
2.1 The delayed viewing shall be held in a room inside the WTO Secretariat building. It will
be open to officials of WTO Members and Observers, and, upon registration with the
Secretariat, to accredited journalists, accredited representatives of non -governmental
organizations, and other interested persons, including membe rs of the public. The names of
all persons registered to attend the delayed viewing will be shared with the parties. To this
effect, the Secretariat will place a notice on the WTO website, informing the public of the
delayed viewing and including a link th rough which members of the public can register to
attend. The notice shall specify: (a) that the names of all persons registered to attend the
delayed viewing will be shared with the parties; and (b) that no person attending the
delayed viewing is allowed to use electronic devices to record any portion of the broadcast.
2.2 The date of the delayed viewing will be decided by the Panels after consulting with the
parties. The redacted recording will be broadcast once, beginning with the floor (i.e. original)
language and followed immediately by the translated Spanish or English language version.
3 PANELS' SUBSTANTIVE MEETING WITH THE PARTIES
3.1 Opt-in procedures
3.1 Any party wishing to be a disclosing party shall notify the Panels in writing prior to the
Panels' substantive meeting with the parties, by a date to be determined by the Panels. Any
party that does not notify the Panels of its intention to be a disclosing party by that deadline
will be treated by the Panels as a non-disclosing party.
3.2 Recording of Statements
3.2 In accordance with the usual practice of the WTO, the audio of the entirety of the
Panels' meeting with the parties (including the floor recording and interpretation) shall be
recorded and entered into the dispute record.
3.3 The entir ety of a disclosing party's opening and closing statements shall be video
recorded, except as provided for in paragraph 3.9.
3.4 A disclosing party's responses to paragraph 1.1(e)(iii) questions shall also be video
recorded, except as provided for in parag raph 3.5 and 3.9. A disclosing party shall advise
the Panels, prior to responding to a paragraph 1.1(e)(iii) question, if its response to that
question discloses, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non-disclosing third party.
3.5 To facilitate the implementation of paragraph 3.4:
a. The Panels shall, when sending advance questions to the parties, indicate which
questions they consider meet the definition in paragraph 1.1(e)(iii) of these Additional
Working Procedures.
b. Spontaneous questions asked by the Panels during the course of the meeting shall not
be recorded.
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3.6 The video recording foreseen under paragraphs 3.3 and 3.4 shall be entered into the
dispute record.
3.7 The video recording foreseen under p aragraphs 3.3 and 3.4 shall be made from a
single camera. The camera shall be set at the same position, zoom, and focus throughout
the meeting.
3.8 In addition to the video recording foreseen under paragraphs 3.3 and 3.4, a secondary
video recording, using a separate video recording channel but captured from the video
camera referenced in paragraph 3.6 will be made of the entirety of the Panels' meeting with
the parties for back -up purposes. Except where the primary video recording is technically
defective, this secondary video will not be used when the Secretariat compiles the video for
the delayed viewing, and will be deleted once the procedures provided for in Section 3.3 of
these Additional Working Procedures have been completed.
3.9 A disclosing party shall advise the Panels prior to addressing its own or another
party's BCI in its statements. When a disclosing party so advises, both video recordings will
be discontinued for the relevant portion of the statement, after which the video recordings
will b e resumed. In the interests of ensuring an efficient meeting, a disclosing party is
invited to structure its statements so as to first deliver a non -BCI portion before delivering a
portion that contains BCI. At the conclusion of a disclosing party's statement, the Panels' will
ask the non -disclosing party to confirm that none of its own BCI was disclosed during the
video recorded portion of the statement.
3.3 Redaction of Recorded Statements
3.10 In order to ensure, pursuant to paragraph 3 of the Panels' Wo rking Procedures, that
disclosure by a disclosing party of its statements at the Panels' meeting with the parties
does not impair or otherwise interfere with either the rights of a non-disclosing party or non-
disclosing third party or the integrity and pro mptness of the dispute settlement process,
statements recorded pursuant to Section 3.2 of these Additional Working Procedures shall be
redacted as described in this Section prior to delayed viewing.
3.11 A disclosing party shall indicate, in the final writ ten version of its opening and closing
statements, which paragraphs disclose, directly or indirectly, the exhibits, arguments, or
positions of a non -disclosing party or non -disclosing third party. For example, a disclosing
party could use the following phr ases in the final written version of its opening and closing
statements: *Beginning of discussion of [non -disclosing party]'s submissions* and *End of
discussion of [non -disclosing party]'s submissions* . Paragraphs that disclose, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing
third party shall be redacted from the video recording. In order to avoid unnecessary
discontinuity in the delayed viewing, a disclosing party is invited to structure its state ments
in such a way as to separate those statements that disclose, directly or indirectly, the
exhibits, arguments, or positions of a non-disclosing party or non-disclosing third party.
3.12 Pursuant to paragraph 3.4 of these Additional Working Procedures, where a response
to a paragraph 1.1(e)(iii) question discloses, directly or indirectly, the exhibits, arguments,
or positions of a non -disclosing party or non -disclosing third party, that response shall be
redacted from the video recording.
3.13 Following the conclusion of the Panels' meeting with the parties, the Panels will review
the recorded statements and the final written versions of a disclosing party's opening and
closing statements. Using the paragraph numbers contained in the final written versio n of a
disclosing party's opening and closing statements, the Panels will identify to the parties any
paragraphs additional to those identified by the disclosing party pursuant to paragraph 3.11
that, in the view of the Panels, disclose, directly or indire ctly, the exhibits, arguments, or
positions of a non -disclosing party or non -disclosing third party. These paragraphs will be
redacted from the video recording, except as provided for in paragraph 3.16.
3.14 Following the conclusion of the Panels' meeting with the parties, the Panels will review
the video recording of a disclosing party's responses to paragraph 1.1(e)(iii) questions. The
Panels will identify to the parties, by reference to the question number, any responses
additional to the responses ide ntified by the disclosing party pursuant to paragraph 3.4 of
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these Additional Working Procedures that, in the view of the Panels, disclose, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing
third part y. These responses will also be redacted from the video recording, except as
provided for in paragraph 3.16.
3.15 If a non-disclosing party considers that any part of the video -recorded statements not
identified by a disclosing party (pursuant to paragrap hs 3.11 and 3.4 of these Additional
Working Procedures) or redacted by the Panels (pursuant to paragraph 3.13 or 3.14 of these
Additional Working Procedures) discloses, directly or indirectly, the exhibits, arguments, or
positions of a non -disclosing party or non-disclosing third party, that party may bring such
part of the video -recorded statements to the attention of the Panels (through the
Secretariat) and the disclosing party. Such notification should be made within a deadline to
be specified by the Pan els, and should identify the particular paragraph of the relevant
opening or closing statement (or, where relevant, third party statement), or the particular
response by question number, and indicate how, in the view of the notifying party, it
discloses, d irectly or indirectly, the exhibits, arguments, or positions of a non -disclosing
party or non -disclosing third party. Before the Panels make a decision regarding any
identified issue, the disclosing party will be afforded an opportunity to explain where
appropriate why, in its view, the identified part of the video -recorded statements does not
disclose, directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party
or non-disclosing third party.
3.16 If a disclosing party considers that any part of the video -recorded statements
redacted by the Panels (pursuant to paragraph 3.13 or 3.14 of these Additional Working
Procedures) does not disclose, directly or indirectly, the exhibits, arguments, or positions of
a non-disclosing party or non-disclosing third party, that party may bring such part of the
video-recorded statements to the attention of the Panels (through the Secretariat) and the
non-disclosing party. Such notification should be made within a deadline to be specified by
the Panels, and should identify the particular paragraph of the relevant opening or closing
statement (or, where relevant, third party statement), or the particular response by
question number, and indicate how, in the view of the notifying party, it does not di sclose,
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Before the Panels make a decision regarding any identified issue, the
non-disclosing party will be afforded an opportunity to exp lain where appropriate why, in its
view, the identified part of the video -recorded statements does disclose, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing
third party.
3.17 The Panels are mindful of the need to ensure the promptness of the dispute
settlement process. Therefore, in the interests of ensuring the workability and efficiency of
these Additional Working Procedures, where a paragraph of a disclosing party's opening or
closing statements, or a disclosing party's response to a paragraph 1.1(e)(iii) question, is
found to disclose, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party, the entire paragraph or response will be
redacted, even if the paragraph or response also contains content that does not disclose,
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party.
3.18 If, in order to utilize the procedures provi ded for in paragraphs 3.15 or 3.16, a party
considers it necessary to review a specific part of the un -redacted video-recording (e.g. the
video-recording of a particular response to a question from the Panels), that party may
request to view that part of t he video-recording. Such request must be made in sufficient
time to ensure that the party is able to comply with the deadlines determined by the Panels
in respect of paragraphs 3.15 and 3.16. Both parties will be invited to any screening of
part(s) of the pre-redacted video-recording.
3.19 If either party requests to view the redacted video recording prior to the delayed
viewing, the Panels will invite both parties to attend a preview session, accompanied by a
representative of the Secretariat, on the premi ses of the WTO. The purpose of the preview
screening is to enable the parties to confirm that the Panels have made the redactions
required under this Section. If either party considers that one or more of the redactions
required under this Section has not been made, it shall inform the Panels immediately,
preferably at the preview screening but in any case no more than 24 hours after the preview
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session. After hearing the views of the other party, the Panels will decide whether or not to
modify the redacted video-recording. The preview session will be held on a date to be
determined by the Panels in consultation with the parties.
3.20 The Panels retain the right to modify these procedures after consulting with the
parties.
4 PANELS' SESSION WITH THIRD PARTIES
4.1 Opt-in procedures
4.1 Any third party wishing to be a disclosing third party shall notify the Panels in writing
prior to the Panels' session with third parties, by a date to be determined by the Panels.
Any third party that does not notify the Panel s of its intention to be a disclosing third party
by that deadline will be treated by the Panels as a non-disclosing third party.
4.2 Recording of Third Party Statements
4.2 In accordance with the usual practice of the WTO, the audio of the entirety of th e
Panels' session with third parties (including the floor recording and interpretation) shall be
recorded and entered into the dispute record.
4.3 The entirety of a disclosing third party's statement shall be video recorded, except as
provided for in paragraph 4.9.
4.4 A disclosing third party's responses to paragraph 1.1(e)(iii) questions shall also be
video recorded, except as provided for in paragraph 4.5 and 4.9. A disclosing third party
shall advise the Panels, prior to responding to a paragraph 1.1(e) (iii) question, if its
response to that question discloses, directly or indirectly, the exhibits, arguments, or
positions of a non-disclosing party or non-disclosing third party.
4.5 To facilitate the implementation of paragraph 4.4:
a. The Panels shall, when sending advance questions to the third parties, indicate which
questions they consider meet the definition in paragraph 1.1(e)(iii) of these Additional
Working Procedures.
b. Spontaneous questions asked by the Panels during the course of the meeting shall no t
be recorded.
4.6 The video recording foreseen under paragraphs 4.3 and 4.4 shall be entered into the
dispute record.
4.7 The video recording foreseen under paragraphs 4.3 and 4.4 shall be made from a
single camera. The camera shall be set at the same zoo m and focus throughout the
meeting.
4.8 In addition to the video recording foreseen under paragraphs 4.3 and 4.4, a secondary
video recording, using a separate video recording channel but captured from the video
camera referenced in paragraph 4.7 will be m ade of the entirety of the Panels' session with
third parties for back -up purposes. Except where the primary video recording is technically
defective, this secondary video will not be used when the Secretariat compiles the video for
the delayed viewing, a nd will be deleted once the procedures provided for in Section 4.3 of
these Additional Working Procedures have been completed.
4.9 A disclosing third party shall advise the Panels prior to addressing a party's BCI in its
statements. When a disclosing thi rd party so advises, both video recordings will be
discontinued for the relevant portion of the statement, after which the video recordings will
be resumed. In the interests of ensuring an efficient meeting, a disclosing third party is
invited to structure its third party statement so as to first deliver a non -BCI portion before
delivering a portion that contains BCI.
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4.3 Redaction of Recorded Third Party Statements
4.10 In order to ensure, pursuant to paragraph 3 of the Panels' Working Procedures, that
disclosure by a disclosing third party of its statements at the Panels' session with third
parties does not impair or otherwise interfere with either the rights of a non -disclosing party
or non -disclosing third party or the integrity and promptness of the di spute settlement
process, statements recorded pursuant to Section 4.2 of these Additional Working
Procedures shall be redacted as described in this Section prior to delayed viewing.
4.11 A disclosing third party shall indicate, in the final written version of its third party
statement, which paragraphs disclose, directly or indirectly, the exhibits, arguments, or
positions of a non -disclosing party or non -disclosing third party. For example, a disclosing
third party could use the following phrases in the fi nal written version of its third party
statement: *Beginning of discussion of [non -disclosing party]'s submissions* and *End of
discussion of [non -disclosing party]'s submissions*. Paragraphs that disclose, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing
third party shall be redacted from the video recording. In order to avoid unnecessary
discontinuity in the delayed viewing, a disclosing third party is invited to structure its third
party statement in such a way as to separate those statements that disclose, directly or
indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -disclosing
third party.
4.12 Pursuant to paragraph 4.4 of these Additional Working Procedures, wher e a third
party's response to a paragraph 1.1(e)(iii) question discloses, directly or indirectly, the
exhibits, arguments, or positions of a non-disclosing party or non-disclosing third party, that
response shall be redacted from the video recording.
4.13 Following the conclusion of the Panels' session with third parties, the Panels will
review the recorded statements and the final written version of each disclosing third party's
third party statement. Using the paragraph numbers contained in the final wri tten version of
a disclosing third party's third party statement, the Panels will identify to the relevant
disclosing third party, copying the parties and third parties, any paragraphs additional to
those identified by the disclosing third party pursuant t o paragraph 4.11 that, in the view of
the Panels, disclose, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party. These paragraphs will be redacted from the
video recording, except as provided for in paragraph 4.16.
4.14 Following the conclusion of the Panels' session with third parties, the Panels will
review the video recording of a disclosing third party's responses to paragraph 1.1(e)(iii)
questions. The Panels will, by reference to the question number, identify to the relevant
disclosing third party, copying the parties and third parties, any responses additional to the
responses identified by the disclosing third party pursuant to paragraph 4.4 of these
Additional Working Procedures that, in the view of the Panels, disclose, directly or indirectly,
the exhibits, arguments, or positions of a non -disclosing party or non-disclosing third party.
These responses will also be redacted from the video recording, except as provided for in
paragraph 4.16.
4.15 If a non -disclosing party or non -disclosing third party considers that any part of a
video-recorded third party statement or third party response to a paragraph 1.1(e)(iii)
question not identified by a disclosing third party (pursuant to pa ragraphs 4.11 and 4.4 of
these Additional Working Procedures) or redacted by the Panels (pursuant to paragraph 4.13
or 4.14 of these Additional Working Procedures) discloses, directly or indirectly, its exhibits,
arguments, or positions, that party or thir d party may bring such part of the video -recorded
statements to the attention of the Panels (through the Secretariat) and the relevant
disclosing third party. Such notification should be made within a deadline to be specified by
the Panels, and should iden tify the particular paragraph of the relevant third party
statement, or the particular response by question number, and indicate how, in the view of
the notifying party, it discloses, directly or indirectly, its exhibits, arguments, or positions.
Before th e Panels make a decision regarding any identified issue, the relevant disclosing
third party will be afforded an opportunity to explain where appropriate why, in its view, the
identified part of the video -recorded statements does not disclose, directly or indirectly, the
exhibits, arguments, or positions of a non-disclosing party or non-disclosing third party.
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4.16 If a disclosing third party considers that any part of the video -recorded statements
redacted by the Panels (pursuant to paragraph 4.13 or 4.14 of these Additional Working
Procedures) does not disclose, directly or indirectly, the exhibits, arguments, or positions of
a non-disclosing party or non -disclosing third party, that third party may bring such part of
the video-recorded statements to the attention of the Panels (through the Secretariat) and
any relevant non -disclosing party or non -disclosing third party. Such notification should be
made within a deadline to be specified by the Panels, and should identify the particular
paragraph of the rel evant third party statement, or the particular response by question
number, and indicate how, in the view of the notifying third party, it does not disclose,
directly or indirectly, the exhibits, arguments, or positions of a non -disclosing party or non -
disclosing third party. Before the Panels make a decision regarding any identified issue, any
relevant non-disclosing party or non-disclosing third party will be afforded an opportunity to
explain where appropriate why, in its view, the identified part of the video-recorded
statements does disclose, directly or indirectly, its exhibits, arguments, or positions.
4.17 The Panels are mindful of the need to ensure the promptness of the dispute
settlement process. Therefore, in the interests of ensuring the workabi lity and efficiency of
these Additional Working Procedures, where a paragraph of a disclosing third party's third
party statement, or a disclosing third party's response to a paragraph 1.1(e)(iii) question, is
found to disclose, directly or indirectly, the exhibits, arguments, or positions of a non -
disclosing party or non -disclosing third party, the entire paragraph or response will be
redacted, even if the paragraph or response also contains content that does not disclose,
directly or indirectly, the exhib its, arguments, or positions of a non -disclosing party or non -
disclosing third party.
4.18 If any party or third party requests to view the redacted video recording of the Panels'
session with third parties prior to the delayed viewing, the Panels will inv ite the parties and
the third parties to attend a preview session, accompanied by a representative of the
Secretariat, on the premises of the WTO. The purpose of the preview screening is to enable
the parties to confirm that the Panels have made the redactions required under this Section.
4.19 The Panels retain the right to modify these procedures after consulting with the
parties.
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ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Executive summary of the arguments of the United States B-2
Annex B-2 Executive summary of the arguments of Mexico B-13
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ANNEX B-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. THE AMENDED MEASURE IS CONSISTENT WITH A RTICLE 2.1 OF THE
TBT AGREEMENT
A. The Determinati on Provisions Are Even -Handed in Both Design and
Application
1. The Appellate Body found that the detrimental impact of the U.S. dolphin safe labeling
measure did not stem exclusively from legitimate regulatory distinctions based only on the design
of the det ermination provisions. As such, following the release of the Appellate Body report, the
United States carefully reviewed the determination provisions, both in design and application.
2. As to design, the United States accepted the DSB recommendations and r ulings and
amended the determination provisions pursuant to the 2016 IFR in accordance with the Appellate
Body's findings. Mexico does not appear to disagree with this conclusion, and thus the issue does
not appear to be in dispute in this proceeding.
3. As to application, the United States also reviewed the readily available evidence to
determine whether there is a basis for making a determination with respect to any particular
fishery. With regard to the first prong of the determination provisions, the re sult of NOAA's
analysis was that there is no evidence that there are fisheries that meet the first prong of the
determination provisions, i.e., in which there is a "regular and significant association between
dolphins and tuna" similar to that in the ETP. With respect to the second prong, the available
evidence suggests that certain gillnet fisheries in the Indian Ocean region meet that standard.
4. The text of the DPCIA is not explicit as to the metric whereby "regular and significant"
dolphin mortality or serious injury should be assessed or as to the benchmark against which levels
of dolphin mortality should be measured to determine whether they are "regular and significant."
Consequently, it was necessary to consider what metric and benchmark were most in keeping with
the purposes of the U.S. dolphin safe labeling measure, in light of the available evidence. Below,
the United States explains: (1) the metric determined to be most appropriate; (2) the benchmark
determined to be most appropriate; and, (3) the evaluation of different tuna fisheries on the basis
of the available evidence.
5. First, in considering the most appropriate metric, NOAA concluded that a per set measure of
dolphin mortality on a fishery -by-fishery basis reflects the frequency with whi ch captains would
have to make a determination that a dolphin was killed or seriously injured in a particular fishery.
Such a metric is consistent with the purpose and structure of the U.S. measure because it
assesses the effect of a tuna fishery on indiv idual dolphins and because it is tailored to the
frequency with which a vessel captain in a particular fishery would have to detect that a dolphin
had been killed or seriously injured in a particular set. Specifically, where a captain would have to
identify a dolphin mortality or serious injury more frequently, because more sets cause a direct
dolphin harm, the determination provisions, if based on a per set metric, would provide that an
observer certification (and enhanced tracking and verification) may b e necessary for tuna product
to meet the "dolphin safe" standard. Such a metric is also practical, as it used by many different
regulating authorities, including by RFMOs, to assess the effect on dolphins (and other bycatch
species) of tuna fishing in a p articular fishery, meaning that there is a considerable amount of per
set data for different fisheries in different oceans that is readily available.
6. Second, having identified an appropriate metric, it was necessary to determine the
appropriate benchmark against which fisheries would be evaluated to determine whether dolphin
mortalities, on a per set basis, were "regular and significant." In this regard, the United States
recalled the suggestion of the Appellate Body that, to ensure even -handed treatment of different
fisheries, the benchmark should refer to the ETP large purse seine fishery. NOAA determined that
the most appropriate benchmark was a 20 -year average of direct dolphin mortalities caused by
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dolphin sets in the ETP, beginning in 1997 and endi ng at the present day. In terms of promoting
the objective of the measure while ensuring even -handed treatment of different fisheries, this
approach has several advantages, namely: (1) averages are generally a more reliable basis on
which to make scientific determinations than single-year figures; (2) it takes into account both the
levels of mortality that were occurring at the time the enhanced observer and tracking and
verification requirements were imposed and current levels; and, (3) it is conservative in nature,
which is consistent with the objective of dolphin protection, because it takes into account any
declines in direct mortalities due to dolphin sets in the ETP that have occurred over the past
20 years.
7. Third, on this basis, the United States con sidered the available fishery -specific evidence
concerning per set mortalities in fisheries other than the ETP large purse seine fishery. As is
shown by the relevant evidence on the record in this dispute, no evidence suggests that, on a per
set basis, any other fishery causes close to the level of dolphin mortalities caused by dolphin sets
in the ETP, as an average since 1997. Thus, no evidence suggested that any fishery for which
fishery-specific evidence was available exhibited "regular and significant" dolphin mortality.
8. However, evidence from certain gillnet fisheries in the Indian Ocean area suggested that
levels of mortality are occurring such that, if per set data were available, the per set mortality rate
likely would meet or exceed the "regular a nd significant" standard. In particular, several exhibits
presented in the first compliance proceeding suggested an alarming level of dolphin mortality was
occurring in the Indian and Pakistani gillnet fisheries in the Indian Ocean, as well as in neighbor ing
fisheries of other countries. The United States attempted to find per set data on these fisheries,
but none was available. Consequently, the United States considered whether any alternative
metrics might act as a proxy for per set data and enable an evaluation of those fisheries. NOAA
determined that data were available to support evaluation under a dolphin bycatch rate metric,
i.e., the number of dolphins killed per ton of target catch (tuna) landed. While this is not a perfect
metric for this anal ysis, it served as a reasonable proxy for the per set data. On September 28,
2016, NOAA issued a determination, on the basis of the best information available, that a "regular
and significant" mortality of dolphins was occurring in these fisheries. The d etermination provided
that any tuna product produced from these fisheries to be marketed as dolphin safe in the United
States would have to be accompanied by a certification by an observer from a qualified and
authorized observer program and a certificatio n attesting to the catch documentation, the
substance of the dolphin safe labeling standards, and the chain of custody information.
9. Thus, in the context of amending the design determination provisions, the United States
evaluated their application based on an appropriate metric and benchmark. The evidence
confirmed that, for all the fisheries for which per set mortality data is available, a positive
determination was not required. For certain gillnet fisheries, however, this data was not available,
but other relevant data suggested that these fisheries would meet the standard of "regular and
significant mortality." On this basis, and in the absence of contradictory information submitted by
the countries, NOAA designated these fisheries. Thus, the applica tion of the determination
provision, like its design, is in compliance with Article 2.1.
10. In the first compliance proceeding, the design of the determination provisions was the sole
basis on which the Appellate Body found that the detrimental impact of the measure did not stem
exclusively from legitimate regulatory distinctions. In addition to addressing the DSB
recommendation and the determination provisions, the 2016 IFR has also addressed the other
concerns identified during the first compliance proceedi ng, even though these concerns did not
form the basis for the DSB recommendation at issue. Looked at independently, the regulatory
distinctions made by the eligibility criteria, the certification requirements, and the tracking and
verification requirements are even-handed.
B. The Appropriate Legal Test for Even-Handedness in This Dispute
11. For purposes of this dispute, as the Appellate Body has explained, the test for even -
handedness is whether the regulatory distinctions, when viewed as a whole, are calib rated to the
differences in risks to dolphins of overall harms between setting on dolphins in the ETP large purse
seine fishery, on the one hand, and other fishing methods in other oceans on the other.
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12. Mexico rejects the Appellate Body's analysis. In part icular, Mexico rejects the Appellate
Body's conclusions that: "there is a special relevance in these Article 21.5 proceedings in
conducting an assessment" of whether the differences in labelling conditions are calibrated to the
risks to dolphins; and a measure "will not violate Article 2.1 if it is properly 'calibrated' to the risks
to dolphins arising from different fishing methods in different areas of the oceans."
13. First, Mexico gives no "special relevance" to the Appellate Body's calibration test. Rathe r, in
Mexico's view, whether the differences in labeling conditions are calibrated to differences in overall
harm to dolphins is merely "one element" of the legal test for even -handedness that the Panels
should apply. Indeed, whether the measure is calibr ated to the overall harm is not even the most
important test under Mexico's approach, as Mexico suggests that the key inquiry is whether
differences in labeling conditions can be reconciled with the objectives of the measure (irrespective
of the risk). Moreover, Mexico appears to reject the application of the Appellate Body's calibration
test for purposes of examining the certification requirements and tracking and verification
requirements.
14. Second, Mexico implicitly – but repeatedly – alleges that the measure will violate Article 2.1
even if it is calibrated by contending that the measure is inconsistent with Article 2.1 for reasons
unrelated to whether it is calibrated to risks of harm to dolphins. Thus, in its first written
submission, Mexico argues tha t all three regulatory distinctions are inconsistent with Article 2.1
because they are "at odds with the objectives and the design, architecture and revealing structure
of the tuna measure." While in its second submission Mexico claims that the measure is
inconsistent with Article 2.1 because it is "inconsistent with the objectives of sustainable
development," as well as the fact that the measure does not apply "strict" certification and
tracking and verification requirements to tuna product produced from f ishing methods that result
in above de minimis harms to dolphins or in fisheries subject to (allegedly) substandard municipal
regulations.
C. Mexico's Proposed Legal Tests for Even-Handedness Are Incorrect
15. First, Mexico conceives of the even-handedness test as a multi-factor analysis where "one of
the[] questions" is whether the measure is calibrated, and "[a]nother question is whether the
regulatory distinctions are reconciled with the objectives of the measure." In Mexico's view, these
two questions "do not create independent or discrete legal tests," but rather are different elements
that are weighed and balanced against one another to determine whether the measure is even -
handed. Mexico misunderstands the Appellate Body's even -handedness analysis as it applies in
this dispute.
16. While the Appellate Body has recognized that there may be different approaches a panel
could employ to test whether the challenged measure is even-handed, the facts and circumstances
of a particular dispute will dictate the approach that is needed. In this dispute, the Appellate Body
"considered appropriate an analysis" of whether the measure "is properly 'calibrated' to the risks
to dolphins arising from different fishing methods in different areas of the oceans." The fact tha t,
in theory, there are different ways to test for even -handedness does not mean, as Mexico
suggests, that the Panels must explore all these options in this dispute or that doing so would be
appropriate.
17. Indeed, what Mexico seems to be arguing is that th e Appellate Body has required the Panels
to face the same situation that the first compliance panel did with regard to the certification
requirements where that panel balanced the two analyses. The Appellate Body, however, reversed
this analysis, finding that the majority did not conduct the appropriate analysis to determine the
even-handedness of the certification requirements. Further, if Mexico were correct that the
Appellate Body has required these Panels to engage in this multifactor balancing test, the
Appellate Body's analysis of the eligibility criteria would also have been fundamentally different.
18. In this dispute, the question of whether the detrimental impact stems exclusively from
legitimate regulatory distinctions is not answered by conductin g an assessment that fails to take
into account differences in risks to dolphins. Rather, the question of even-handedness is answered
by determining whether those differences in the regulatory distinctions "can be explained as being
properly tailored to, or commensurate with, the differences in such risks in the light of the
objective of protecting dolphins from adverse effects arising in different fisheries." In this regard,
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it is clear that the calibration analysis, as set out by the Appellate Body, already takes into account
the dual objectives of the measure. Specifically, the Appellate Body's test examines whether the
measure is calibrated to the risk of harm to dolphins as a way of explaining the differences in
regulatory distinctions. Dolphin prot ection, including through consumer information, is the main
substantive objective of the measure, and label accuracy is a means of ensuring that end.
Consequently, if the measure is appropriately calibrated to the risks to dolphins in different ocean
areas, then the regulatory distinctions of the measure are consistent with the measure's
objectives. Additionally, the fact that the Appellate Body analysis requires the same calibration
test to determine whether the measure reflects arbitrary or unjustifiabl e discrimination for
purposes of the chapeau of Article XX further confirms that, for purposes of this dispute, the
analysis is not what Mexico claims.
19. Second, Mexico argues that the Panels should adopt different tests – not related to risks to
dolphins, namely, "the risks of inaccurate information being provided" – to determine the even -
handedness of the certification requirements and tracking and verification requirements than it
should apply for the eligibility criteria. Mexico's arguments lack merit f or several reasons. As
explained above, the Appellate Body's calibration analysis already takes into account the
objectives of the measure. Further, different tests do not apply to different regulatory distinctions.
In the first compliance proceeding, t he Appellate Body faulted that panel for applying a modified
calibration test to the eligibility criteria and a different test to the certification requirements and
tracking and verification requirements, emphasizing that the same test must be applied to e ach of
these "cumulative and highly interrelated" regulatory distinctions. Mexico's approach urges the
Panels to conduct an incorrect "segmented analysis" that the Appellate Body has already rejected.
Moreover, the tests that Mexico claims must be used t o determine whether the certification
requirements and tracking and verification requirements are even -handed are incorrect.
Specifically, Mexico's argument (that tuna product produced by a fishing method that causes
above de minimis harm to dolphins must be ineligible for the label) is a rejection of the calibration
analysis. Similarly, Mexico's other test, which posits that "strict" certification and tracking and
verification requirements need to be applied to tuna caught in all fisheries where the lev el of
applicable municipal fishery regulations falls below some (unspecified) minimum standard, is also a
rejection of the calibration argument as it does not depend on an analysis of the differing risks to
dolphins.
20. Third, Mexico's argument with regard to "environmental sustainability" is bereft of support,
as to both the law and the facts.
D. The Eligibility Criteria Are Calibrated to the Risk to Dolphins Posed by
Different Fishing Methods
21. The United States has established that the eligibility criteria ar e calibrated to the differences
in risk to dolphins of overall harm. Specifically, the United States has established that: (1) setting
on dolphins is a unique fishing method that is inherently unsafe for dolphins; (2) fishing methods
that can produce tuna product eligible for the U.S. dolphin safe label do not pose equivalent risks
to dolphins; and (3) the eligibility criteria are commensurate with the differences in risk.
1. Setting on Dolphins Is a Unique Fishing Method that Is Inherently
Unsafe for Dolphins
22. The United States has shown that setting on dolphins is a fishing method that is particularly
harmful to dolphins for three reasons: (1) it intentionally targets dolphins, such that dolphins must
be put at risk of direct and indirect harm in every dol phin set; (2) it causes a unique category of
unobservable harms that may occur in every dolphin set, regardless of whether a dolphin is
directly killed or injured; and, (3) it continues to cause a high level of direct dolphin mortalities.
23. First, it is well -established that setting on dolphins is the only fishing method that
intentionally targets dolphins to catch fish. Thus, every dolphin set involves a sustained
interaction between a large purse seine vessel (and its speedboats and often helicopters) and a
herd of dolphins whereby the vessel chases about 600 dolphins for up to 2 hours, ultimately
capturing about 300-400 of them. Other fishing methods, by contrast, can be used with no effect
on dolphins at all. Furthermore, vessels may interact with a sma ll number of dolphins only
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incidentally and those other fishing methods can be conducted without putting any dolphin directly
in danger.
24. In this regard, Mexico is wrong to argue that the intentional nature of dolphin interactions is
not relevant to the risk profile of setting on dolphins. Previous Appellate Body reports confirm that
the analysis must be based on an assessment of the "overall levels of risk" caused by different
fishing methods in different fisheries. The first compliance panel confirmed th e relevance of the
intentional nature of the dolphin interactions in dolphin sets, explaining that every set must
involve a sustained interaction with hundreds of dolphins for up to several hours and that these
interactions are inherently dangerous, as the y can cause significant unobservable harms, as well
as direct mortalities and serious injuries. There is, thus, no basis for excluding this feature of
setting on dolphins from the analysis of the fishing method's risk profile.
25. By contrast, as the first co mpliance panel recognized, other fishing methods in other
fisheries do not intentionally target dolphins. In particular, as the United States has explained,
other fishing methods can be used without harm to dolphins. Indeed, some fisheries – including
certain handline, gillnet, longline, pole and line, and purse seine fisheries – pose no known, or only
a remote, risk to any dolphins, due to the distribution of dolphins and the area where the fishery
operates. In many other tuna fisheries, including in pa rticular purse seine and longline fisheries,
there is some known risk, but the vast majority of all sets occur without any dolphin interaction
and, therefore, without putting any dolphin in danger. Thus, the vast majority of fishing activities
in these fisheries involve no dolphins at all and, therefore, pose little or no risk of direct or indirect
dolphin harms.
26. Second, setting on dolphins causes a unique category of indirect, unobservable harms due
to the chase and encirclement process. Mexico argues th at such effects are "speculative and
unproven" and claims that, to the extent conclusions are drawn concerning indirect effects caused
by dolphin sets, the same conclusions "must be presumed in relation to other fisheries and fishing
methods." Further, Me xico claims that the actions that cause the unique unobservable effects of
dolphin sets are actually positive because they make the method sustainable. None of Mexico's
arguments have merit, and Mexico is wrong to try to "appeal" the DSB recommendations a nd
rulings in these proceedings.
27. In this regard, Mexico is incorrect that if setting on dolphins is found to cause unobservable
effects, then there must be a presumption that other fishing methods cause the same effects. As
the United States has explained , a significant body of peer -reviewed scientific literature concludes
that setting on dolphins causes indirect, unobservable harms to dolphins due to the chase and
encirclement process. Such harms include reproductive effects, calf -cow separation, and phy sical
harms induced by stress. A 2007 article on the subject explained that a review of the existing
literature showed, inter alia , that: (1) dolphin sets "entail well -recognized stressors in other
mammals, especially wild animals," and that typical respo nses "to such disturbances include
changes in metabolism, growth, reproduction, and immune status, any of which, alone or in
combination, could significantly affect survival and reproduction"; (2) samples from dolphins
caught in dolphin sets "showed cell d amage similar to that in heart muscle, indicative of a degree
of capture myopathy that could lead to unobserved mortality in some cases"; and, (3)
"developmental issues indicate that smaller calves (less than 1 year postpartum) may have more
difficulty remaining associated with the mother during fishery activities." A 2010 study explained
that there is evidence that the ETP large purse seine fishery "has been a significant factor in the
lives of dolphins since its inception" and, in particular, "is influen cing reproduction in dolphin
populations." There are no such studies indicating similar indirect, unobservable mortalities
caused by any other fishing method in any other fishery, and Mexico presents none.
28. Mexico has presented no evidence undermining pr evious findings that setting on dolphins
causes a unique category of unobservable harms due to the chase itself that are not caused by
other fishing methods. As a consequence, it is simply not possible for dolphin sets to be certified
"dolphin safe" in th e sense of having caused no harm to dolphins, since unobservable harms may
occur in each set, even without any direct dolphin mortality, but cannot be seen by a captain or
observer. Mexico's attempts to portray dolphin sets as a sustainable, positively re garded fishing
method are misleading and not relevant to whether the method is dolphin safe.
29. Third, setting on dolphins is a uniquely dangerous fishing method in terms of direct dolphin
mortalities. Over the past decade, dolphin sets by ETP large purse seine vessels have caused
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several hundreds, and sometimes thousands, of direct dolphin mortalities per year. Controlling for
the level of effort, in order to facilitate comparison across fisheries, these figures translate to
between 69.4 and 126.3 dolphin mortalities per 1,000 dolphin sets. This level of dolphin
mortalities, being caused by 80 -90 vessels in approximately 10,000 sets per year, is generally
unparalleled in other tuna fisheries.
2. Fishing Methods that Can Produce Tuna Product Eligible for the
U.S. Dolphin Safe Label Do Not Pose Equivalent Risks to Dolphins
30. Fishing methods that produce tuna product potentially eligible for the dolphin safe label
generally pose a lower level of risk to dolphins than setting on dolphins in the ETP because: (1 )
they are not intrinsically harmful to dolphins and can be carried out without involving any
dolphins; (2) they do not cause the types of unobservable harms caused by the chase and
encirclement process regardless of whether dolphins are directly killed; a nd, (3) the levels of any
direct dolphin mortality they may cause are generally lower, on a per set basis, than those caused
by dolphins sets under the AIDCP and certainly are not high enough to counterbalance the unique
risks posed by dolphin sets and thu s equalize the risk profiles of dolphin sets and other fishing
methods.
31. In this regard, Mexico is wrong to argue that "where there is credible evidence that dolphins
have been harmed by a fishing method, it must be assumed that there are widespread direct and
indirect harms unless proven otherwise with absolute certainty ." The Appellate Body found that
calibration, not Mexico's "zero tolerance" benchmark, is the applicable test for whether the U.S.
measure, including the eligibility criteria, is even -handed. Mexico has put forward no evidence
suggesting any other fishing methods are intrinsically dangerous to dolphins or cause such
unobservable harms. Further, Mexico's evidence does not show that, as a general matter, other
fishing methods cause the level of direct dolphin mortalities caused by dolphin sets under the
AIDCP.
32. With respect to purse seine sets other than dolphin sets , all the available set -by-set data
confirms that such a fishing method causes a much lower level of direct dolphin mortality tha n
dolphin sets. This is true for the Atlantic, Indian, western and central Pacific, and ETP Ocean purse
seine fisheries where all of the evidence shows that levels of direct dolphin mortalities in these
fisheries are well below those due to dolphin sets i n the ETP. In this regard, the ETP large purse
seine fishery itself provides the clearest example of why Mexico's arguments fail. The evidence
establishes that free school and floating object sets have accounted for over half of all sets in the
ETP large purse seine fishery in the past decade but have caused only 0.2% of dolphin mortalities
in the fishery – the other 99.8% being caused by dolphin sets. Mexico's failure to respond to this
evidence – or even acknowledge its existence at all – is telling. Purse seine sets other than
dolphin sets thus cause significantly lower levels of direct mortality than dolphin sets and also put
dolphins at risk less often and do not cause the unobservable harms that are caused by the chase
and encirclement process.
33. With respect to longline fishing, the evidence establishes that this fishing method can be
used without causing any harms to dolphins, and that the risks to dolphins from longlining in
general in different areas of the oceans are significantly lower than the risks to dolphins from
setting on dolphins in the ETP large purse seine fishery. While Mexico criticizes the United States
for applying a "presumption," Mexico fails to introduce evidence suggesting that the U.S. evidence
on the record is not correct and representative. The United States has shown that, for example, in
every tuna longline fishery for which data is available, the vast majority of sets (over 95 percent)
occur without interacting with any dolphins. Further, the United States has shown that for every
tuna longline fishery for which evidence is available, observed direct dolphin mortalities constitute
small fractions of those caused by dolphin sets in the ETP on a fishery -by-fishery basis. Mexico
has put forward no evidence contradicting the U.S. evidence.
34. With respect to pole and line fishing , Mexico does not even appear to contest that such a
fishing method causes less overall harm to dolphins than does setting on dolphins in the ETP large
purse seine fishery.
35. With respect to gillnet fishing, such a fishing method can produce tuna product that can be
certified dolphin safe in the way that setting on dolphins cannot. Unlike in dolphin sets, dolphins
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are not an essential component of gillnet fishing and, therefore, gillnet sets, and even entire gillnet
fisheries, can be conducted without interacting with and harming dolphins. Further, as the first
compliance panel correctly found and the Appellate Body confirmed, gillnet fishing is not capable of
causing the types of unobservable harms to do lphins that setting on dolphins causes as a result of
the "chase itself" even if no dolphins were directly observed to have been killed.
36. Mexico is further incorrect to argue that the levels of mortality caused by gillnets in the
Indian Ocean gillnet fisheries supports a finding that all tuna product produced from gillnet fishing
should be ineligible for the dolphin -safe label. The evidence on the record concerning the Indian
Ocean gillnet fisheries is not suggestive of bycatch rates in all gillnet fisherie s around the world.
Dolphins are not evenly distributed throughout the world's oceans, and different fisheries of the
same gear-type can have vastly different bycatch levels depending on their area of operation and
spatial overlap with dolphin populations . Some gillnet fisheries, in particular, are carried out in
areas such that there is little or no known risk to any dolphin species. Further, there are
techniques that can reduce dolphin interactions in gillnet fisheries, and thereby reduce the
potential for dolphin harm. Thus, gillnet fishing overall presents a lower risk to dolphins than
dolphin sets.
37. With respect to trawl fishing, the evidence establishes that trawl fishing does not cause a
higher level of dolphin mortalities than dolphin sets in the ETP. In particular, studies of trawl
fisheries indicate that, where they are used to catch tuna, bycatch is generally rare. One study
commented that trawlers cause less mortality of marine mammals than other fishing methods,
speculating that this might be due to "the disturbance caused by the trawling action at the bottom
and at midwater warning cetaceans before they get caught." With respect to tuna pelagic pair
trawling in particular, the FAO explained: "In most cases [if it is] a single species fishe ry, bycatch
rates of other species are low. . . . On few fishing ground[s], the incidental catch of dolphins and
marine mammals creates some problems."
38. With respect to handline fishing, Mexico has not even argued that such a fishing method
causes a higher level of dolphin mortalities than setting on dolphins does in the ETP large purse
seine fishery. Indeed, Mexico points to no dolphin mortalities or other harms reportedly caused by
handline fishing. Rather, Mexico argues that handline vessels have been known to "chas[e]"
dolphins and, therefore, if chasing dolphins is intrinsically harmful, "the tuna measure must
disqualify tuna caught by handlines in association with dolphins in order to be even -handed."
However, none of Mexico's evidence suggests that handline fishing in general or in the Indian
Ocean is harmful to dolphins at all, let alone as harmful as setting on dolphins in the ETP large
purse seine fishery.
3. The Eligibility Criteria Are Commensurate with the Differences in
Risk
39. The eligibility criteria are commensurate with the differences in risk to dolphins posed by
setting on dolphins, on the one hand, and other fishing methods that produce tuna potentially
eligible for the label, on the other. First, the eligibility criteria distinguish bet ween the only fishing
method that intentionally targets dolphins and those that do not. Because it intentionally targets
dolphins, setting on dolphins is, by its very nature, inherently unsafe to dolphins. Other fishing
methods by contrast, are not intri nsically dangerous, in that the intention of the fishing vessels is
not to interact with dolphins (and, indeed, most sets occur without putting even one dolphin in
danger). Second, the eligibility criteria are commensurate with the differences in risk to dolphins
of setting on dolphins and other fishing methods, as reflected in the number of dolphins directly
endangered when such methods are employed. Setting on dolphins endangers, on average,
hundreds of dolphins each and every time the method is employe d. Other fishing methods, by
contrast, only very rarely endanger a single dolphin, illustrated by the fact that vessels interact
with dolphins in less than 1 percent of sets in nearly every fishery for which evidence is available.
Third, the eligibility criteria are commensurate with the differences in risk posed by setting on
dolphins and other fishing methods because they deny eligibility to a fishing method that may
cause massive unobservable harms every time it is employed, irrespective of whether a d olphin
has been killed or injured or whether AIDCP restrictions are applicable, while allowing eligibility for
those fishing methods that generally do not cause many of these types of harms at all, and do not
cause any of these harms without a dolphin bein g killed or seriously injured. Fourth, the eligibility
criteria are commensurate with the differences in risk because they deny eligibility to a fishing
method that causes a higher rate of observed mortalities and serious injuries while allowing
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eligibility for those fishing methods that cause a lower rate of observed mortalities and serious
injuries.
40. For the reasons stated above, the eligibility criteria cannot support a finding of less favorable
treatment under Article 2.1.
E. The Certification Requirements Are Even-Handed
41. Under the U.S. measure, as amended, all tuna product sold in the U.S. market as dolphin
safe must be accompanied by a captain certification attesting that (1) "no purse seine net or other
fishing gear was intentionally deployed on or us ed to encircle dolphins during the fishing trip in
which the tuna were caught"; and (2) no dolphin mortality or serious injury occurred "in the sets
or other gear deployments in which the tuna were caught." Additionally, to be eligible for the
label, tuna product produced from the ETP large purse seine fishery must be accompanied by
certifications from an AIDCP -approved observer, as has been the case since the original measure
came into effect. Moreover, under the 2016 IFR, captains operating outside the ETP large purse
seine fishery are now required to certify completion of the NMFS dolphin -safe captain's training
course, regarding issues pertinent to the dolphin safe certification.
42. The certification requirements meet the test of calibration. Specifica lly, and as discussed
above, the ETP large purse seine fishery has a special risk profile that is different from the risk
profiles of other fisheries The differences in the certification requirements are commensurate with
these different risk profiles. This is the case for at least two reasons.
43. First, the differences in the certification requirements are commensurate with the differences
in risk because the task of verifying that tuna meets the eligibility criteria is so much more difficult
in the ETP large purse seine fishery than it is in other fisheries. That is to say, it is appropriate to
require two certifiers (one of whom has to meet certain minimum education standards and has
undergone some training) where the conditions facing the certifier are very difficult and to require
only one certifier (who need not meet minimum education standards but is required to have taken
a training course) where the conditions are less difficult. The ETP large purse seine fishery is
fundamentally different from oth er fisheries in terms of the number of dolphins put at risk of
mortality or serious injury by interacting with the vessel, fishing gear, etc. and the frequency with
which that interaction is taking place. Further, the ETP large purse seine fishery differs
substantially from other fisheries in how this interaction occurs. ETP large purse seine vessels, in
coordination with speedboats and a helicopter, engage in lengthy chases of large dolphin herds,
which usually last 20 -40 minutes but can take over two ho urs, with the entire process lasting
another one -to-two hours following the end of the chase. Such a complex scene – in varying
weather and ocean conditions – can make it very difficult for even the captain and a single
observer to see every dolphin interaction throughout the entire process. There is no evidence that
this type of interaction is repeated elsewhere in the world. In other fisheries, by contrast, where
interactions with dolphins are generally accidental and are of limited scope and duration, captains
are capable of determining the fate of the few dolphins they may encounter.
44. Second, the differences in certification requirements are commensurate with the differences
in risk among fisheries because any difference in the "margin of error" resu lting from the different
requirements has a rational connection to the difference in risk, as discussed by the minority
panelist in the first compliance panel's report. That is to say, even if the conditions facing the
certifiers in the ETP large purse se ine fishery and other fisheries were the same (which they are
not), and a captain working outside the ETP large purse seine fishery were, therefore, a less
"sensitive" mechanism than an AIDCP observer, the regulatory distinction is calibrated (and thus
even-handed) in tolerating a higher "margin of error" for the certifier where the risks are lower
and tolerating a lower "margin of error" where the risks are higher. The United States has already
demonstrated – indeed, the first compliance panel agreed – that the probability of dolphin
mortality or serious injury is greater in the ETP large purse seine fishery than outside it. Thus, it
remains the case that, as the minority panelist put it, the different certification requirements
"represent[] a fair respon se to the different risk profiles existing in different fisheries, as
established by the evidence," even without taking into account that the certification requirements
have narrowed since the first compliance proceeding. Taking the changes made by the 20 16 IFR
into consideration, it is even clearer that the certification requirements reflect a "fair response" to
different risk profiles among fisheries, as established by the evidence on the record.
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45. Thus, the certification requirements are calibrated to th e risk profiles of different fisheries
and, as such, are even-handed and thus cannot support a finding of less favorable treatment.
F. The Tracking and Verification Requirements Are Even-Handed
46. The purpose of the tracking and verification requirements of the NOAA tracking and
verification regime is to distinguish between tuna product that meets the dolphin safe standard
and tuna product that does not. The NOAA regime is composed of the interlocking elements of
recordkeeping and reporting, physical segreg ation, verification, and sanctions. The 2016 IFR
established additional chain of custody recordkeeping requirements for U.S. processors or
importers, as applicable. U.S. processors and importers must collect and retain records regarding
each custodian of the tuna or tuna product throughout the complete chain of custody, including
storage facilities, transshippers, processors, re -processors, and wholesalers/distributors. These
records must be sufficient for NMFS to conduct a trace -back to verify that any tuna product
certified to NMFS as dolphin -safe, in fact, meets the dolphin -safe labeling requirements.
Moreover, the recordkeeping must be sufficient for NMFS to trace any non -dolphin safe tuna
loaded onto the vessel back to one or more storage wells or other storage locations for a particular
fishing trip to prove that such non -dolphin safe tuna was kept physically separate from dolphin -
safe tuna from catch through unloading.
1. The Regulatory Differences Between the Two Regimes Are Narrow
47. The first compl iance panel's even -handedness analysis was based on a comparison of the
two different sets of tracking and verification requirements. The first compliance panel concluded
that the two regimes differed as to "depth," "accuracy," and "degree of government oversight."
48. Depth. The first compliance panel used the term "depth" to refer to the point to which tuna
can be traced back. The AIDCP regime requires that processed tuna product be traceable back to
the AIDCP TTF, not the set or the well as the first comp liance panel suggested. Thus, all that is
required to be disclosed at the time of an audit is that the tuna in question was harvested on a
particular trip covered by the TTF number, that it was caught in one of the sets listed on the TTF,
and that it was stored in one of the wells listed on the TTF.
49. Accordingly, there is no practical difference in the tracking and verification requirements
between the AIDCP and NOAA regimes as to "depth." Both regimes have the same objective – to
distinguish between dolphin safe and non-dolphin safe tuna, by being able to track and verify that
the two types of tuna have been kept physically separate from one another from the vessel
through processing. To do so, both regimes require a separate set of information for dolp hin safe
or non -dolphin safe tuna product ( i.e., different TTF pages for the AIDCP regime and different
Form 370s (or equivalent) and captain certifications for the NOAA regime), to which NMFS can
trace back the tuna.
50. Accuracy. The first compliance pane l used the term "accuracy" to refer to "the degree of
confidence that a particular captain (or, where applicable, observer) statement properly describes
the lot of tuna to which it is assigned." In the panel's view, "[the AIDCP] tuna tracking forms . . .
accompany particular catches of tuna throughout the fishing and production process, from the
point of catch right through to the point of retail" and, "accordingly the identity of a particular
batch of tuna can, in principle, always be established." In co ntrast, for the NOAA regime, the first
compliance panel questioned whether and how the "particular certificates are kept with particular
lots of tuna up until the tuna reaches the canning plant." The 2016 IFR directly addressed the first
compliance panel's concern with regard to "accuracy." U.S. processors and importers now must
maintain recordkeeping sufficient to allow NMFS to verify the dolphin safe status of tuna product.
Such records must pertain to each custodian of the tuna or tuna product through out the chain of
custody, including storage facilities, transshippers, processors, re -processors, and
wholesalers/distributors. In other words, this new recordkeeping requirement establishes a
concrete legal obligation that the documentation attesting to whether the tuna is dolphin safe
does, in fact, stay with the tuna throughout the supply chain.
51. Accordingly, there is no practical difference in the tracking and verification requirements
between the AIDCP and NOAA regimes as to "accuracy." Given that U .S. processors and U.S.
importers must maintain records as to the complete chain of custody sufficient for NMFS to do a
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complete trace back of the tuna product that is the subject of the verification, the legal
requirements in place for both the AIDCP and NOAA regimes mean that "the degree of confidence
that a particular captain (or, where applicable, observer) statement properly describes the lot of
tuna to which it is assigned" will be the same.
52. Degree of Government Oversight . The first compliance panel used the phrase "degree of
government oversight" to refer to "the extent to which a national, regional, or international
authority is involved in the tracking and verification process." In the panel's view, in the AIDCP
regime, "information concerning eve ry stage of the tuna catch and canning process is made
available to national and regional authorities, which must be sent copies of tuna tracking forms
and are thus able to verify at any stage of the catch and canning process whether a particular
batch of tuna is dolphin -safe." By contrast, in the NOAA regime, the panel's view was that "the
United States has, as it were, delegated responsibility for developing tracking and verification
systems to the tuna industry itself, including canneries and importers, and has decided to involve
itself only on a supervisory and ad hoc basis through the review of monthly reports and the
conduct of audits and spot checks." Under the current measure, NMFS receives dolphin safe
certifications for all tuna product sold on t he U.S. market as dolphin safe. Moreover, all U.S.
processors and importers marketing dolphin safe tuna product must now retain records such that
the complete chain of custody for the tuna product, and the tuna contained therein, can be
established. Thus, with respect to "government oversight," the 2016 IFR narrowed the differences
between the NOAA and AIDCP regimes.
2. The Differences in Requirements Are Calibrated to the Differences
in Risk
53. Like the certification requirements, the tracking and verification requirements are calibrated,
and thus even-handed, because it is appropriate to use a more "sensitive" mechanism where the
risks of dolphin mortality and serious injury are high, and a less "sensitive" mechanism where the
risks of dolphin mortality and serious injury are low, as discussed by the minority panelist with
regard to the certification requirements. The fact that the "mechanism" here occurs subsequent to
the catch of the tuna does not mean that the calibration argument is rendered irreleva nt to this
stage of the analysis, as the Appellate Body has confirmed. Thus, any differences between the two
"mechanisms," i.e., the tracking and verification systems, are small, particularly in light of the
significant differences in risk between the ETP large purse seine fishery and other fisheries. With
respect to depth, both the AIDCP and NOAA regimes require that tuna product that is "dolphin
safe" (for purposes of their respective regimes) be traceable back to the harvesting vessel and trip
and to t he group of wells that held dolphin safe tuna. With respect to accuracy, both regimes
require chain of custody recordkeeping sufficient to enable national authorities to trace a particular
lot of tuna from harvesting through processing. With respect to g overnment oversight, both
regimes enable a government authority to obtain documentation "concerning every stage of the
tuna catch and canning process" and thus both can "go behind" the dolphin safe certifications to
the same extent.
G. The Measure, as a Whole, Is Even-Handed
54. Although the United States considers it useful to discuss the issues on a distinction -by-
distinction basis in order to provide a thorough explanation of how the calibration analysis applies
in these proceedings, such a "segmented" approach is not the analysis that the Appellate Body has
explained is necessary. Rather, the Appellate Body has stated consistency with the
TBT Agreement and GATT 1994 must be determined based on a "comprehensive" analysis that
takes into account the "cumula tive and highly interrelated" nature of the different distinctions and
"reconcil[es]" any different intermediate conclusions that may be drawn as to particular regulatory
distinctions. In particular, the Appellate Body has stated that the fact that one re gulatory
distinction may not be "balanced" in relation to the risk does not mean the measure as a whole
should be found inconsistent – it is necessary to look at whether the measure "as a whole" is
commensurate with the risk.
55. This type of broad analysis ma kes sense. It is not the role of a WTO panel to step into the
shoes of a regulator and find a measure inconsistent based on a hyper -technical investigation of
whether the measure responds to every small detail of different circumstances around the world.
The WTO Agreement has never been interpreted as requiring a measure to satisfy such a
standard. Rather, the Appellate Body has indicated that the analysis should be the same type of
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analysis as other past panels have done, namely whether the measure, as a whole, is justified in
light of the evidence available. In this light, the Appellate Body's characterization of the calibration
test – in particular, whether the regulatory distinctions are "commensurate" with the risk – is not
materially different from how the previous proceeding's minority panelist understood it. The
question is simply whether the regulatory distinctions drawn by the measure reflect a "fair
response to the different risk profiles existing in different fisheries, as established by the
evidence."
56. In fact the measure – when viewed as a whole – reflects such a "fair response" to the
evidence. In particular, the evidence establishes that the ETP large purse seine fishery has a
higher risk profile than other fisheries because a uniquely dan gerous fishing method is widely
employed in that fishery that is not employed in other fisheries. The measure recognizes the
unique risk to dolphins that the intentional chase and capture of dolphins poses and draws
distinctions between fishing methods and fisheries in light of that difference in risk. The difference
in risk "explains" the distinctions contained in the measure, and the measure is, in turn, calibrated
to the risk. Accordingly, the measure is consistent with Article 2.1.
III. THE MEASURE IS CONSISTENT WITH ARTICLE XX OF THE GATT 1994
57. For purposes of this dispute, the Appellate Body has stated that the question to be answered
to determine whether the measure reflects "arbitrary or unjustifiable discrimination," as
understood in the chapeau of Article XX, is the same question that needs to be answered to
determine whether the measure is even -handed under Article 2.1. Namely, is the measure
calibrated to differences in risk of overall harm between setting on dolphins in the ETP large purse
seine fishery and other fishing methods employed in other fisheries? As discussed, the measure
is, in fact, so calibrated. As such, any inconsistency with GATT 1994 Articles I:1 and III:4 is
justified under Article XX.
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ANNEX B-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF MEXICO
I. INTRODUCTION
1. These two proceedings, under Article 21.5 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU), concern a disagreement as to the consistency with
the WTO covered agreements of measures taken to comply with the recommendations and rulings
of the Dispute Settlement Body (DSB) in the first Article 21.5 compliance proceedings in United
States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products.
2. The most recently amended tuna measure — that is, the tuna measure as amended by the
2016 Interim Final Rule — continues to be inconsistent with Article 2.1 of the Agreement on
Technical Barriers to Trade (TBT Agreement) and Articles I:1 and III:4 of the General A greement
on Tariffs and Trade, 1994 (GATT 1994). Moreover, it does not meet the requirements of the
chapeau in Article XX of the GATT 1994 and, therefore, the general exceptions in Article XX do not
apply.
3. Mexico has established a prima facie case, and both parties agree, that: (i) the tuna
measure is a "technical regulation" covered under the TBT Agreement; (ii) the tuna products at
issue are "like"; and (iii) the measure has a detrimental impact on the competitive opportunities of
Mexican tuna products in the US market, and the first part of the "less favourable treatment" test
under Article 2.1 is therefore satisfied. In addition, Mexico has established a prima facie case, and
both parties agree, that the 2016 tuna measure is inconsistent with Articles I:1 and III:4 of the
GATT 1994. Further, Mexico agrees with the United States that the measure would provisionally
fall within subparagraph XX(g) of the GATT 1994.
4. However, Mexico and the United States disagree on whether the detrimental impact stems
exclusively from a legitimate regulatory distinction or reflects discrimination against Mexican tuna
products under Article 2.1, and also on whether or not the require ments of the chapeau of
Article XX are met — specifically, the requirement that the measur e must not be applied in a
manner that constitutes a means of arbitrary or unjustifiable discrimination.
5. The key areas of disagreement relate to whether or not the tuna measure 's different
regulatory treatment of tuna products containing tuna caught by the Mexican fishing fleet in the
Eastern Tropical Pacific Ocean (ETP) large purse seine fishery, on the one hand, and tuna products
containing tuna caught by other fishing vessels in other fisheries, on the other hand, is
appropriately "calibrated" to the relevant differences in circumstances — i.e., the overall relative
risks or levels of harm to dolphins arising from different fishing methods in different areas of the
oceans — taking account of the objectives of the measure, such that the detrimental impa ct
caused by the regulatory distinctions can be reconciled with, or rationally related to, the objectives
of the measure.
6. The Panels are required to fully interpret and apply the calibration assessment described
by the Appellate Body for the purposes of determining: (i) whether, under Article 2.1 of the
TBT Agreement, the tuna measure is even -handed in its design, architecture, revealing structure,
operation, and application in the light of the particular circumstances of the case or lacks even -
handedness, such that the detrimental impact cannot be said to stem exclusively from a legitimate
regulatory distinction (e.g., because the measure is designed or applied in a manner that
constitutes a means of arbitrary or unjustifiable discrimination); and (ii) w hether the measure
satisfies the requirements of the chapeau of Article XX or is designed or applied in a manner that
constitutes a means of arbitrary or unjustifiable discrimination.
7. It is important to note that there will always be differences in fact ual circumstances where
technical regulatory distinctions are applied to like products from different origins with trade -
restrictive effects. The mere existence of such factual differences among like products — e.g.,
different circumstances of production — cannot, on its own, justify differences in regulatory
treatment that result in detrimental impact on a group of imported products. Such an
interpretation would render Article 2.1 and the chapeau of Article XX inutile.
8. Thus, the Panels must carefully co nsider under what circumstances regulatory differences
amount to "calibration" that justifies them as even -handed, such that they do not constitute a
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means of arbitrary or unjustifiable discrimination. Where should the line be drawn between
(i) "legitimate" calibration of regulatory distinctions, and (ii) regulatory distinctions that are
designed and applied in a manner that lacks even-handedness or otherwise constitutes a means of
arbitrary or unjustifiable discrimination? The determination of where this l ine is drawn must be
flexible enough to accommodate the many different facts and circumstances that could arise in
respect of a measure in pursuit of legitimate objectives, but not so flexible as to render inutile the
obligations in Article 2.1 of the TBT Agreement, the chapeau of Article XX of the GATT 1994, and
other similar provisions in the WTO Agreements.
II. THE 2016 TUNA MEASURE
9. The measure taken to comply is the most recently amended tuna measure, which
comprises: (a) Section 1385 ( "Dolphin Prote ction Consumer Information Act "), as contained in
Subchapter II ("Conservation and Protection of Marine Mammals") of Chapter 31 ("Marine Mammal
Protection"), in Title 16 of the U.S. Code; (b) U.S. Code of Federal Regulations, Title 50, Part 216,
Subpart H ("Dolphin Safe Tuna Labeling "), as amended by the 2013 Final Rule and the 2016
Interim Final Rule; (c) the court ruling in Earth Island Institute v. Hogarth, 494 F.3d 757
(9th Cir. 2007); and (d) any implementing guidance, directives, policy announcements or any
other document issued in relation to instruments (a) through (c) above, including any
modifications or amendments in relation to those instruments.
10. The tuna measure remains inconsistent with Article 2.1 of the T BT Agreement and
Articles I:1 and III:4 of the GATT 1994, and the general exceptions in Article XX of the GATT 1994
do not apply.
III. LEGAL ARGUMENT
11. For a violation of Article 2.1 of the TBT Agreement to be established, the following
elements must be satisfied: (i) the measure at issu e must be a "technical regulation" within the
meaning of Annex 1.1; (ii) the imported products at issue must be like the domestic product and
the products of other origins; and (iii) the treatment accorded to imported products must be less
favourable than that accorded to like domestic products or to like products originating in other
country.
12. In these compliance proceedings, it is undisputed that the first two of the above -
referenced elements are satisfied.
A. Treatment No Less Favourable
13. The Appellate Body has established a two -step analysis for assessing whether a technical
regulation accords "less favourable treatment " under Article 2.1 of the TBT Agreement. The first
step focuses on whether the measure at issue modifies the conditions of competi tion in the
relevant market to the detriment of imported products as compared to like domestic products or
like products originating in any other Member. The second step determines whether any such
detrimental impact stems exclusively from a legitimate reg ulatory distinction or reflects
discrimination against the group of imported products.
14. It is undisputed that the tuna measure continues to modify the conditions of competition in
the US market to the detriment of Mexican tuna products, such that the fi rst step of the
"treatment no less favourable" test under Article 2.1 is satisfied.
15. In determining whether the detrimental impact on imports stems exclusively from a
legitimate regulatory distinction, a panel must carefully scrutinize whether the techn ical regulation
at issue is even -handed in its design, architecture, revealing structure, operation, and application
in the light of the particular circumstances of the case. The Appellate Body has found that where a
regulatory distinction is not designed and applied in an even -handed manner, that distinction
cannot be considered "legitimate", and thus the detrimental impact will reflect discrimination
prohibited under Article 2.1. The Appellate Body has also confirmed that, in undertaking this
assessment o f even -handedness, a panel does not err by assessing whether the detrimental
impact caused by a regulatory distinction can be reconciled with, or is rationally related to, the
policy objectives pursued by the measure at issue, so long as, in doing so, it d oes not preclude
consideration of other factors that may also be relevant to the analysis.
16. In the original proceedings, the Appellate Body concluded that the United States had not
demonstrated that the difference in the tuna measure 's labelling conditions was "calibrated" to the
risks to dolphins arising from different fishing methods in different areas of the oceans. In the first
compliance proceedings, the Appellate Body found that the compliance panel had erred to the
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extent that its analysis had not encompassed, in response to the United States ' arguments, an
assessment of whether the regulatory distinctions drawn by the amended tuna measure (i.e., with
respect to the eligibility criteria, the certification requirements, and the tracking and verifica tion
requirements) were "calibrated" to the relative risks of harm to dolphins posed by different fishing
techniques in different areas of the oceans. As the United States defended the amended tuna
measure's regulatory distinctions on the basis of "calibration", the Appellate Body considered there
to be a "special relevance" in conducting a calibration assessment as part of the "treatment no less
favourable" test in the second step of the Article 2.1 analysis in this dispute.
17. While the Appellate Body de scribed, in general terms, the methodology of the applicable
calibration assessment, it was unable to complete the analysis because there were insufficient
factual findings and undisputed facts on the record regarding the overall relative risks or levels o f
harm to dolphins arising in different fisheries. As a consequence, it was unable to resolve the
question of whether or not the different eligibility criteria, the different certification requirements,
the different tracking and verification requirements were "calibrated" to such different overall
relative risks or levels of harm. Nonetheless, the Appellate Body found that other aspects of the
measure's design (i.e., the "determination provisions") reflected a lack of even -handedness, and
that, for this re ason alone, the United States had not demonstrated that the differences in the
amended tuna measure's labelling conditions were calibrated to, or commensurate with, the risks
to dolphins arising from different fishing methods in different areas of the oceans.
18. In the current compliance proceedings, the United States attempts to restrict the Panels '
assessment of even -handedness in the second step of the "treatment no less favourable " test
under Article 2.1 to a narrow interpretation of "calibration". In so doing, the United States seeks to
exclude considerations, questions, and factors relevant to both the calibration assessment and the
overall analysis described by the Appellate Body in the first compliance proceedings, including
whether the tuna measure 's regulatory distinctions are designed or applied in a manner that
constitutes a means of arbitrary or unjustifiable discrimination because, for example, the
detrimental impact they cause cannot be reconciled with, or rationally connected to, the objectiv es
of the measure. In Mexico 's view, the assessment of even -handedness is a multi -factor analysis
that carefully scrutinizes the design, architecture, revealing structure, operation, and application of
the measure in the light of the particular circumstanc es of the case. This analysis is based on the
arguments and evidence adduced by the disputing parties, and therefore includes — but is not
restricted to — the question of whether or not the relevant regulatory distinctions are "calibrated"
to the relative overall risks of harm to dolphins arising in different fisheries.
19. Thus, the Panels must take into account a number of factors or questions in conducting
and resolving the legal test for "even-handedness", including both whether the tuna measure 's
regulatory distinctions can be justified on the basis that they are "calibrated", and whether, as
Mexico argues, the discriminatory effects constitute arbitrary or unjustifiable discrimination on the
basis that the regulatory distinctions cannot be reconciled with, or rationally connected to, the
legitimate policy objectives of the measure.
20. These questions do not create independent or discrete legal tests; rather, they are
elements within the overall analysis of whether or not the tuna measure is "even-handed", and
they are assessed cumulatively, in relation to one another, on a common record of facts and
circumstances. The careful assessment of a relevant question or factor within the context of the
legal test for "even-handedness" should not be viewed as c onducting a separate legal test. As the
Appellate Body explained, assessing whether a measure involves "arbitrary or unjustifiable
discrimination" is "one of the ways to determine whether the detrimental impact caused by a
technical regulation is even -handed", but "the fact that a measure is designed in a manner that
constitutes a means of arbitrary or unjustifiable discrimination is not the only way in which a
measure may lack even -handedness." A panel should not be precluded from considering "other
factors that may also be relevant to the analysis ". In this regard, the Appellate Body has explicitly
confirmed that, in the circumstances of this dispute, a calibration assessment is a necessary part
of the legal test for even -handedness, but it is not a separa te, independent test in and of itself.
The Appellate Body also made it clear that the calibration analysis must be undertaken "taking
account of the objectives of the measure".
21. Accordingly, contrary to the arguments of the United States, both the nexus between the
regulatory distinctions and the objectives of the measure and the calibration of the measure are
relevant to the assessment of whether the tuna measure is even-handed.
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1. The Risks to Dolphins can only be Addressed if the Label is
Accurate
22. The accuracy of the information provided to consumers on the U.S. dolphin -safe label is a
central consideration in determining whether the detrimental impact caused by the tuna measure
stems exclusively from a legitimate regulatory distinction . This is b ecause the calibration
assessment must be undertaken "taking account of the objectives of the measure ", which
necessitates an assessment of whether there is a "rational connection " between the regulatory
distinctions and the objectives of the measure. This is clearly reflected in the reasoning and
findings of the Appellate Body and the Panels in the previous proceedings.
23. The undisputed objectives of the tuna measure are: (i) ensuring that consumers are not
misled or deceived about whether tuna products contain tuna that was caught in a manner that
adversely affects dolphins; and (ii) contributing to the protection of dolphins, by ensuring that the
U.S. market is not used to encourage fishing fleets to catch tuna in a manner that adversely
affects dolphins.
24. Taking these two objectives into account, the calibration assessment requires an
assessment of the "accuracy" of the label. This is because an inaccurate label misleads consumers
about whether tuna products that they purchase contain tuna caught in a manner that adversely
affects dolphins, which in turn allows the U.S. market to be used to encourage fishing fleets to
catch tuna in a manner that adversely affects dolphins. In such circumstances, a high risk of
inaccurate labelling equates to a high ri sk to dolphins, contrary to both of the interrelated
objectives of the tuna measure. Thus, the objectives of the measure cannot be fulfilled if the
accuracy of the dolphin-safe information on the label is neither (i) required, nor (ii) enforced, i.e.,
through sufficient certification and tracking and verification conditions.
25. The fundamental linkage between protecting dolphins from mortality and serious injury
and providing accurate labelling information was recognized by the original Panel. In the origi nal
proceedings, the Panel found that the tuna measure operated on the basis of incentives created by
consumer choice, such that achievement of the measure 's secondary objective (i.e., to protect
dolphins by ensuring that the U.S. market is not used to encourage fishing fleets to catch tuna in a
manner that adversely affects dolphins) was therefore dependent in large part on the achievement
of the primary objective (to ensure that consumers are not misled or deceived about whether tuna
products contain tuna caught in a manner that adversely affects dolphins). In other words, the
risks of harm to dolphins are inextricably linked to the accuracy of the dolphin -safe information
provided to consumers and, therefore, accuracy is a necessary and central considerat ion in the
calibration analysis
26. The United States' interpretation of calibration as allowing, on the facts of this dispute, for
there to be a "margin of error " in the accuracy of the information provided to consumers on the
dolphin-safe label is someth ing that cannot be justified for the purposes of the assessment of
even-handedness in the second step of the "treatment no less favourable" test under Article 2.1 of
the TBT Agreement or for the assessment of arbitrary and unjustifiable discrimination unde r the
chapeau of Article XX of the GATT 1994.
27. In arguing that the accuracy of the label is not relevant to the calibration test, the United
States incorrectly narrows the test to an assessment of the "risks" (i.e., mortality and serious
injury to dolphins) in isolation from the mechanism that addresses those risks (i.e., the provision
of dolphin-safe information to consumers on the label affixed to tuna products in the U.S. market).
The Appellate Body has explained that the focus of the calibration test is on "how the risks … are
addressed" and not on the risks in isolation. The risks are addressed through the dolphin-safe label
which, in turn, is governed by the labelling conditions. The differences in the labelling conditions
include differences that relate to the accuracy of the labels.
28. Mexico is not required to adduce evidence that proves actual instances where tuna
products containing non-dolphin-safe tuna caught outside the ETP have been inaccurately labelled
as dolphin-safe. For the purposes of establishing a lack of even-handedness under the second part
of the legal test in Article 2.1 of the TBT Agreement and arbitrary discrimination under the
chapeau of Article XX of the GATT 1994, Mexico is only required to establish a prima facie case
that, under the circumstances related to the design and application of the tuna measure 's labelling
conditions and requirements, tuna products containing non -dolphin-safe tuna caught outside the
ETP could potentially enter the U.S. market inaccurately labelled as dolphin-safe. The burden then
shifts to the United States to sufficiently explain how such instances can be prevented in the
application of the tuna measure's labelling conditions and requirements.
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29. In EC – Seal Products , for example, the Appellate Body considered the mere possibility
that the measure at issue could be applied in a manner that might inaccurately characterize
products with an advantageous market status to be sufficient to establish a prima facie case of
arbitrary or unjustifiable discrimination, thereby shifting the burden to the responding Member. In
this respect, the Appellate Body indicated that it fell to the European Union to sufficiently explain
how instances of such inaccurate characterization could be prevented in the applicati on of the
measure at issue.
30. In the current proceedings, Mexico has established a prima facie case that, due to gaps
and deficiencies in the eligibility criteria, the certification requirements and the tracking and
verification requirements, tuna produc ts derived from tuna caught outside the ETP under non -
dolphin-safe circumstances – which are therefore not properly eligible for the dolphin -safe label –
could potentially enter the U.S. market inaccurately labelled as dolphin -safe. Mexico showed not
only that there are gaps, but also that major suppliers of tuna for the U.S. market – Thailand, the
Philippines and Chinese Taipei – were found by the European Commission to have significantly
deficient regulation of their fishing fleets and processing industri es, meaning that they could not
provide assurances of the sources of their sea food products. That is, in fisheries other than the
ETP large purse seine fishery, factors such as deficiencies in record -keeping, transshipments, and
illegal, unreported and unregulated (IUU) fishing can lead to dramatic deficiencies in the accuracy
of information, including dolphin-safe information. Moreover, the United States lacks jurisdiction to
audit foreign fishing vessels, carrier vessels, and foreign processors. The U.S. processors and
importers are required to collect the documentation, but not to validate the information contained
therein.
2. The Measure is Not Calibrated to the Overall Relative Risks or
Levels of Harm to Dolphins arising in Different Fisheries
31. It i s important to recall that the concept of "calibration" was first raised in the original
proceedings as a defensive argument by the United States, not as an independent analysis
developed by the Appellate Body. The concept of "calibration" as a potential j ustification was
further developed by the Appellate Body in the first compliance proceedings, again in relation to
the United States' arguments.
32. Further to the Appellate Body 's guidance in the first compliance proceedings, the
calibration assessment in this dispute must examine whether the de jure and de facto regulatory
differences — i.e., the "relevant regulatory distinctions" under Article 2.1 of the TBT Agreement —
are "calibrated" to the different relative risks (i.e., the likelihood) that dolphins will be adversely
affected (i.e., dolphin mortalities or serious injuries) in the course of tuna fishing operations by
using different fishing methods in different areas of the oceans. The differences are calibrated if
they are "not disproportionate with", "are commensurate with", and are "appropriately tailored to"
the different "relative overall risks or levels of harm " to dolphins — including both observable and
unobservable mortality and serious injury — associated with tuna fishing using different fis hing
methods in different ocean areas, "taking account of " and "in the light of " the objectives of the
measure. The consideration of the objectives of the measure incorporates the requirement that the
detrimental impact caused by the regulatory distinction s must be reconciled with, or rationally
related to, the objectives of the measure.
33. In order to apply the calibration test, the Panels must first identify the differences in the
"risk profiles" of the different "fishing methods" in the different "areas of the oceans ". In these
proceedings, questions regarding the relative risk profiles are "more acute " and a detailed
assessment that reflects a "thorough understanding of the relative risk profiles " is necessary.
"Risk" refers to the likelihood of dolphin mortalities or serious injuries. The likelihood of dolphin
mortalities or serious injuries (i.e., the risk profile) must be assessed both in relation to fishing
methods and in relation to fishing areas of the oceans. In determining the risk profile of a f ishery,
focusing on both the fishing method and the ocean area is necessary because the risk to dolphins
arising from a particular fishing method may change depending on the fishing area. Likewise, the
risk to dolphins in a particular fishing area may chan ge depending on the fishing method that is
used in that area. The comparative evaluation of the overall relative risks in different areas of the
oceans must also take into account the reliability of the record -keeping and reporting — that is,
the accuracy of the information provided and the levels of IUU fishing — by the tuna suppliers in
those areas, including the level and effectiveness of governmental oversight of the commercial
activities of tuna fishing vessels, brokers, trans-shippers and producers of tuna products.
34. Finally, in assessing the various factors that make up the risk profiles of the different
fishing methods and the different areas of the oceans, the Panels must take into account the
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nature of the evidence relied upon by the United Stat es to establish those factors. Where the
United States relies on precautionary presumptions or a low standard of proof for assessing the
risk profile of a fishing method and an ocean area, a similar presumption or low standard of proof
must be used for as sessing the risk profiles of other fishing methods in other ocean areas. To do
otherwise would be arbitrary and unjustifiable.
a. Determination of the Risk Profiles of Different Fishing
Methods in Different Ocean Areas
35. Pursuant to the Appellate Body 's direction, in evaluating whether the measure is
calibrated, the Panels must conduct a comparative analysis of the overall relative risks or levels of
harm posed to dolphins by different fishing methods in different ocean areas. In the first
compliance pro ceedings, the Panel narrowed its comparison to what it characterized as the
"unobservable" adverse effects caused by different fishing methods. The Appellate Body rejected
this approach, determining that the comparison must take into account the total adve rse effects
caused by a fishing method, including the direct, observable mortalities and serious injuries. In
this respect, the Appellate Body considered that by focusing solely on its understanding that the
unobserved harms differed between setting on dol phins and other fishing methods, the Panel did
not consider the relative risks posed by the relevant fishing methods in respect of observable
mortality or serious injury, and therefore did not resolve the questions of the overall levels of risk
in the different fisheries and how they compare to each other. The Appellate Body specifically and
expressly considered that such an examination was needed in order to assess whether the
differences in the dolphin -safe labelling conditions under the amended tuna meas ure are
appropriately tailored to, and commensurate with, those respective risks.
36. It is clear from the Appellate Body 's reasoning that risk profiles must be objectively
determined for the different relevant fishing methods and fishing areas, such that they capture the
implications of all factors that affect the likelihood of total or "overall" (i.e., observed and
unobserved) dolphin mortality and serious injury caused by each fishing method at issue in each
ocean area at issue. Once such risk profiles a re determined, they can be compared in order to
identify the differences in the overall relative risks or levels of harm. The design and application of
the different eligibility criteria, certification requirements, and tracking and verification
requirements can then be scrutinized in the light of these differences in order to determine
whether or not the regulatory distinctions are commensurate with, or tailored — that is,
"calibrated" in an even-handed manner — to the different risk profiles arising in different fisheries.
37. It is not necessary for the Panels to undertake a comprehensive comparison of the risk
profiles for all fishing methods in all ocean areas. Rather, the scope of the Panels ' analysis is
largely dictated in this dispute by the evidence adduced by the Parties. As the Party asserting that
the tuna measure is "calibrated", the United States bears the burden of demonstrating that it has
properly tailored the different labelling conditions and requirements to the different overall relative
risks or levels of harm arising in different fisheries. This burden must be satisfied if the United
States is to rebut Mexico 's prima facie case under Article 2.1 that the measure does not stem
exclusively from a legitimate regulatory distinction. In partic ular, Mexico has shown that the
deficiencies and gaps in the design, architecture, revealing structure, operation, and application of
the regulatory distinctions result, in the light of the particular circumstances of the case, in the
provision of inaccurate dolphin-safe information to consumers in direct contradiction of both of the
measure's objectives. Therefore, the measure cannot be said to be designed and applied in an
even-handed manner. The Panels need only to find that there is evidence of one exam ple in which
the measure is not commensaurate with, or properly tailored to, the overall relative risks or levels
of harm for the United States to be found not to have satisfied this burden. While Mexico 's
evidence demonstrates several examples of fishing methods and fisheries where the overall
relative risks to dolphins are equivalent to or greater than the those arising from Agreement on
the International Dolphin Conservation Program (AIDCP) -compliant tuna fishing in the ETP, the
tuna measure 's labelling conditions and requirements are less strict for those fisheries. This
outcome is inconsistent with the concept of calibration described by the Appellate Body.
38. In the circumstances of this dispute, the determinative factors in ascertaining the risk
profiles for the purposes of the calibration assessment are (i) the existence of observed and
unobserved dolphin mortalities and serious injuries, and (ii) the magnitude of those mortalities and
serious injuries. These factors reflect the aggregate "results" of all other risk factors that have
been discussed in this dispute. While the United States attempts to include as an additonal factor
the subjective description of the AIDCP -compliant dolphin encirclement fishing method as
"particularly harmful " simply bec ause it involves intentional interactions with dolphins, Mexico
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emphasizes that ascribing risk to the features of the fishing activity and, at the same time, to the
evidence of both observed and unobserved dolphin mortality and serious injury will double -count
the overall relative risks or levels of harm. This is why the Appellate Body did not include a
subjective description of fishing techniques in the methodology it described for determining risk
profiles. Thus, it is the measurable results or consequenc es of a fishing method, as evidenced in
total aggregate levels of observable and non -observable dolphin mortalities and serious injuries,
that must be assessed, rather than presumptions extrapolated from subjective descriptions of the
features or characteristics of the fishing methods.
39. The most scientific and objective approach to determining risk profiles would be to use
potential biological removal (PBR) rates for the relevant fisheries in order to ascertain whether or
to what extent dolphin populatio ns are being adversely affected by the fishing method. Another
approach would be to consider the estimated overall, worldwide mortality levels of different fishing
methods based on the available evidence on the record. The United States 's rejection of the use of
PBR levels to evaluate whether different fishing methods and specific fisheries are dolphin -safe is
inconsistent with the manner in which the United States regulates its own fisheries, inconsistent
with the approach taken in its new Marine Mammal Pr otection Act regulations, and contrary to
scientific methods. If a fishery is small, but the levels of harm caused by the fishing method is
depleting the local dolphin stocks, then allowing tuna caught by those methods in those fisheries
to be marketed as "dolphin-safe" (i.e., because the absolute number of dolphins killed is lower
than in larger fisheries) is inconsistent with dolphin protection and contrary to the objectives of the
tuna measure.
40. Alternatively, if the United States disregards scientifi c measurements and justifies
disqualification of Mexico 's AIDCP -compliant fishing method on the basis of a specualtive
precautionary presumption that it is causing an unknown magnitude of unobservable harms in
every fishing set, then the same type of preca utionary presumption and speculation must be
applied to other fishing methods and other ocean regions . In other words, where there is credible
evidence that dolphins have been harmed by a fishing method, it must be presumed that there are
widespread direct and indirect harms being caused by that fishing method unless proven otherwise
with absolute certainty . The United States does the opposite, however. For all fishing methods
other than dolphin encirclement, the United States applies a presumption that dol phins are not
being harmed unless proven otherwise (a presumption that benefits from the general deficit of
complete or reliable data on dolphin mortality caused by commercial tuna fishing outside the ETP).
If the same presumptive standard is not applied t o all fishing methods that cause dolphin
mortalities and serious injuries, but rather different presumptive standards are applied arbitrarily,
then the tuna measure cannot be said to be applied in an even-handed manner.
41. The favorable presumption that t he United States applies to non -ETP fisheries under the
tuna measure is inconsistent with regulations that the United States recently issued to implement
the Marine Mammal Protection Act, under which the United States, after a five -year grace period,
will ban entirely imports of seafood from fisheries for which the exporting nation is unable to
demonstrate that the fishery is not having population effects on marine mammals. This
inconsistency highlights the arbitrariness of the standard that the United Stat es is applying under
the tuna measure, under which it allows products to be labelled and advertised as dolphin -safe
without reliable evidence supporting such a claim.
42. It is important to note that, in the original proceedings, the Panel determined that dolphin
populations affected by fishing techniques other than setting on dolphins face risks at least
equivalent to those currently faced by dolphin populations in the ETP under AIDCP monitoring. The
United States has not presented evidence that would justify disregarding that determination.
43. Gillnet Fishing. The United States has admitted that the tuna gillnet fisheries of Iran,
India, Sri Lanka, Pakistan, Oman, Yemen, Tanzania, the United Arab Emirates, Mozambique and
Saudi Arabia in the Indian Ocean a ll have dramatically higher dolphin bycatch rates than dolphin
encirclement sets in the ETP large purse siene fishery. Nonetheless, tuna products made with tuna
caught using the gillnet fishing method in general — including tuna harvested in these gillnet
fisheries in particular — remain eligible for the US dolphin -safe label. Further, this eligibility is
conditioned on requirements and conditions that are more liberal than those applicable in the ETP
large purse seine fishery.
44. The evidence adduced by M exico demonstrates that the gillnet fishing method is highly
destructive to dolphins. The United States ' arbitrary application of the determination provisions to
the gillnet fisheries in the Indian Ocean, exclusively on the basis of evidence adduced by Mex ico in
the first compliance proceeding, raises strong questions about why it has not made tuna products
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made with gillnet-caught tuna ineligible for the dolphin -safe label. The United States argues that,
in principle, gillnet fishing can be dolphin -safe if it is done in an ocean area where there are no
dolphins. In support of this proposition, the United States cites to a report on U.S. fisheries that
includes a few that have not been deemed dangerous to marine mammals. However, the fisheries
to which the U nited States refers are not tuna fisheries, and, in any event, the same document
identifies a total of twenty -six gillnet fisheries that are designated as posing risks to marine
mammals. There is no reasonable explanation why the United States has not made gillnet fishing
an ineligible method for harvesting dolphin-safe tuna.
45. Longline Fishing. There is substantial and uncontradicted evidence on the record that
longlines kill and maim dolphins, and that longline fishing is threatening the viability of do lphin
stocks in some fisheries.
46. The association between dolphins and longline fishing is well -established. In the past,
analyses of this issue tended to focus on negative effects on fishing caused by "depredation" – i.e.,
the consuming by marine mammal s of both bait and target fish on longline hooks – but it is now
widely recognized that dolphins are severely harmed by such interactions.
47. Notably, the United States itself has designated the longline tuna fishery in the area of the
U.S. State of Hawai i as threatening the regional population of false killer whales (a species of
dolphin), which are classified as "endangered" and "depleted". The U.S. Department of Commerce
has established a "take reduction plan" to protect those dolphins. Based on the data in this fishery,
a report published by the Sea Turtle Restoration Project on longline fishing estimates that over
18,000 dolphins are killed annually by longline fishing in the Pacific Ocean. The United States has
also designated the "Atlantic pelagic lo ngline fishery" – in an area off the eastern coast of the
United States – as a fishery harmful to marine mammals that requires a "take reduction plan" and
formed a Pelagic Longline Take Reduction Team (PLTRT).
48. The United States argues that the total nu mbers of reported dolphin deaths from longlines
are lower than those for dolphin sets in the ETP, and that the number of "interactions" that are
reported is low on a per -deployment basis. However, there are no comprehensive programs to
monitor the harm cau sed to dolphins by longline fishing, and the percentage of observed fishing
sets is too low to draw scientifically meaningful conclusions. Difficulties also arise from the fact
that the lines can be as long as 90 miles in length, which would impair the ab ility of observers to
see the deaths and injuries as they are occurring.
49. The evidence on the record establishes that longline fishing kills tens of thousands of
dolphins per year. This level of harm exceeds the adverse effects of AIDCP -compliant dolphi n
encirclement in the ETP. Notwithstanding these facts, the tuna measure permits tuna caught using
longlines to be used to produce tuna products eligible for the US dolphin -safe label, while tuna
products produced using tuna harvested in AIDCP -compliant do lphin encirclement sets is never
eligible, even if an independent, scientific observer certifies that no dolphins were killed or injured
in a fishing set.
50. Trawl Fishing. The Panel in the first compliance proceeding found that trawl fishing for
tuna res ults in dolphin mortalities. An article published by Greenpeace International reports
significant dolphin mortalities caused by the trawl net fishing method, including on example in
which 30 dolphins were killed in one single haul of the net. Although it i s uncontested that trawl
fishing is a highly destructive fishing method that kills dolphins in many fisheries, the United
States applies a presumption that this is a safe fishing method for dolphins that should be eligible
for the dolphin-safe label. As in the cases of gillnet and longline fishing, it is not even -handed for
the tuna measure to unconditionally disqualify the AIDCP dolphin -safe fishing method from
producing tuna eligible for dolphin-safe products, but not to disqualify the trawl method.
51. Handline Fishing. It is well-established that tuna regularly associate with dolphins in the
Indian Ocean and other ocean areas, just as they do in the ETP, and that handline fishers chase
herds of dolphins specifically to locate the tuna swimming beneath them.
52. Mexico's evidence establishes that (i) the ETP is not the only place in the world in which
tuna routinely associate with dolphins, as the United States has argued, and (ii) that other fishing
methods intentionally "target" dolphins to find tuna. Moreover, if, as the United States argues, the
"chasing" of dolphins to locate tuna is presumed to be "intrinsically" or "particularly" harmful to
dolphins, regardless of whether or not any dolphin mortality or serious injury has been caused in
the process, then the tuna measure must disqualify tuna caught by handlines in association with
dolphins in order to be even-handed.
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53. Unregulated Purse Seine Fishing. The panels in the original and first compliance
proceedings found that purse seine fishing in gener al may result in substantial dolphin bycatch,
even when it does not involve the encirclement of dolphins. In the current proceedings, the
evidence on the record establishes that purse seine sets on floating objects, such as fish -
aggregating devices (FADs), is a highly destructive method, and that FAD fisheries cause
thousands of dolphin mortalities. This evidence includes, for example, a report sponsored by the
U.S. Department of Commerce in which scientists estimated that about 2,000 dolphins were being
killed each year by a fleet of five tuna purse -seiners using fish -aggregating devices in the
Philippinnes, and a report in which a single FAD set that killed 180 dolphins was observed, among
others. On the basis of this evidence, it is not even -handed for th e tuna measure to allow tuna
products made with tuna caught in FAD purse seine fishing sets to be eligible for the US dolphin -
safe label, while it prohibits tuna products made with tuna harvested using the AIDCP dolphin -safe
fishing method from conditional eligibility.
54. AIDCP-Compliant Dolphin Encirclement Purse Seine Fishing. By virtue of the AIDCP
requirement for 100 percent observer coverage (by independent, highly -qualified scientific
observers), the ETP large purse seine fishery has the most compreh ensive, accurate, and reliable
data on dolphin mortality in the world. The evidence regarding the existence and magnitide of
direct, observed mortalities caused by the AIDCP -compliant dolphin-encirclement method is not in
dispute. This evidence demonstrates that, in 2015, 96.4 percent of dolphin encirclement sets were
made without causing any direct dolphin mortality or serious injury.
55. Mexico does not agree that unobserved mortalities and serious injuries from
AIDCP-compliant dolphin-safe sets, if they exist at all, always occur in every set or are material.
This is a presumption (i.e., the panel in the original proceedings considered there to be "sufficient
evidence … to raise a presumption that genuine concerns exist "), and it is based on evidence
attempting to explain low population growth estimates that Mexico has vigorously refuted in the
current proceedings with more recent evidence.
56. The only objective scientific evidence of the magnitude of any unobservable harms caused
by AIDCP-compliant dolphin encirclement is the evidence related to the growth of dolphin stocks in
the ETP. The most recent evidence identifies errors in the previous population assessment surveys
which indicate that the populations were likely seriously underestimated. One of the Department of
Commerce authors who participated in the prior dolphin population assessments has concluded in
the more recent evidence that there is a high likelihood that, due to flaws in the design and
execution of the population surveys, the northeaste rn spotted dolphin stock has been
underestimated by more than 60 percent, and that the eastern spinner dolphin stock has been
underestimated by 73 percent. Moreover, the United States agreed in 2009, based on population
estimates, to a decision of the AIDC P Parties, on the advice of the Scientific Advisory Committee,
to increase the ETP "stock mortality limits " (SMLs) for the two dolphin stocks that are most
involved in the tuna fishery and which the United States has designated as "depleted" – from 648
to 793 for the northeastern spotted dolphin, and from 518 to 655 for the eastern spinner dolphin.
The action of the U.S. Department of Commerce in agreeing to increase the SMLs for the two
"depleted" stocks contradicts the United States ' assertion that there is a reasonable basis to
presume that there "could be" thousands of unobserved mortalities.
57. Overall, the evidence on the record shows that direct mortalities in the ETP large purse
seine fishery are well within the limits of sustainability, while the s uggestions of indirect,
unobservable effects are speculative and unproven (generally arising in order to attempt to explain
the mistaken premise that dolphin populations are not recovering at the expected rates).
b. Eligibility Criteria
58. The eligibility criteria specify which fishing methods are prohibited from being used to
catch tuna that can be designated as dolphin -safe. Only two methods are currently ineligible:
dolphin encirclement and high seas large -scale driftnet fishing. All other tuna fishing methods are
eligible to catch tuna that could be designated as dolphin -safe provided that the other labelling
conditions are met. This difference in treatment between ineligible and eligible fishing methods is
not even-handed.
59. The evidence on the recor d establishes that hundreds of thousands of dolphins and other
marine mammals are killed annually in commercial fishing operations. The United States has failed
to prove that tuna fishing methods other than the AIDCP -compliant dolphin encirclement method
in areas of the oceans outside the ETP do not result in equivalent or greater overall relative risks
or levels of harm to dolphins.
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60. In particular, the eligibilty criteria permit tuna caught in gillnet fisheries in the Indian
Ocean (where the United Stat es estimates there are over 60,000 dolphin mortalities annually) to
remain eligible for the US dolphin -safe label, while prohibiting the tuna harvested using
AIDCP-compliant dolphin encirclement sets in which no dolphins were killed or injured from ever
being eligible. This alone is sufficient to establish that the tuna measure is not commensurate with,
or properly tailored to, the relative overall risks or levels of harm to dolphins arising from different
fishing methods in different areas of the oceans.
61. Further, under the tuna measure, all tuna caught during a voyage in which a dolphin
encirclement set was made even one time is disqualified. In other words, if a fishing vessel, during
a two-month voyage, made one dolphin encirclement set while all of its other sets were on FADs
or unassociated, and no dolphins were killed or seriously injured during any of the fishing sets, all
of the tuna caught by the vessel would be disqualified from the dolphin -safe label. Conversely, in
the case identified by Mexi co where a vessel fishing in the West Pacific killed 180 dolphins in a
single purse seine FAD set, all of the tuna caught by that vessel in other sets during that same
voyage was eligible to have the dolphin-safe label.
62. Thus, careful scrutiny of the de sign and application of the eligibility criteria in the light of
the particular circumstances of the case reveals that the tuna measure 's regulatory distinctions
lack even-handedness, such that the detrimental impact cannot be said to stem exclusively from a
legitmate regualtory distinction. Moreover, this shows that the tuna measure 's regulatory
distinctions between tuna harvested in the ETP using the AIDCP dolphin -safe fishing method and
tuna harvested using other fishing methods in other ocean areas is clearly not commensurate with,
or properly tailored to, the relative overall risks or levels of harm to dolphins arising from different
fishing methods in different areas of the oceans.
c. The Certification Requirements
63. Every Mexican tuna product contai ning tuna caught by a large purse seine vessel in the
ETP must be supported by a signed statement from an independent, highly -trained scientific
observer on board the vessel. The sole function of the AIDCP observer is specifically to observe all
procedures relating to dolphins during fishing sets, to monitor compliance with all mandatory
dolphin-protection procedures, and to provide written reports (which are subsequently reviewed by
the AIDCP International Review Panel) on any and all bycatch and interacti ons with marine
mammals, including detecting and reporting on any mortalities or serious injuries caused to
dolphins in the course of a fishing set. In contrast, tuna caught outside the ETP large purse seine
fishery only needs to be self -certified as dolph in-safe by the captain of the fishing vessel that
harvests it. Unlike the independent observer in the ETP, the captain has a number of other
important responsibilities that take priority, e.g., the operation of the vessel, conducting fishing
manoeuvers, and the safety of the crew, among others. Those other responsibilities require the
captain's attention during fishing sets or gear deployments. As a practical matter, a fishing captain
outside the ETP large purse seine fishery will either be (i) distracted a nd unable to give his or her
full attention to identifying dolphin mortality or serious injury, or (ii) precluded by his or her other
responsibilities from actually observing the fishing set at all.
64. In the first compliance proceedings, the panel determ ined that t he evidence strongly
suggested that certifying whether a dolphin has been killed or seriously injured during the course
of a fishing set or a gear deployment is a highly complex task. In this regard, the panel found
"especially telling" the fact that the tuna measure itself recognized the necessity of training and
education in equipping persons with the necessary technical know -how to ensure that they can
properly certify the dolphin-safety of a tuna catch. The panel concluded that the United Sta tes had
failed to rebut Mexico 's evidence that captains may not necessarily and always have the technical
skills required to certify that no dolphins were killed or seriously injured, and that this may result
in inaccurate information being passed to consu mers, in contradiction to the objectives of the
measure.
65. In the current proceedings, the online "training" program that the United States purports
to provide to fishing vessel captains under the new tuna measure is superficial and filled with
ambiguous language. Further, the Department of Commerce has no mechanism to verify that a
captain has read the short training document or adequately understands its contents. Moreover,
two of the largest tuna product suppliers to the United States have both stated that it will not be
possible to implement or enforce these training requirements. Thus, this amendment has not
remedied the deficiencies and gaps that led the first compliance panel to determine that captains
may not necessarily and always have the required technical skills.
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66. As Mexico has previously noted, the accuracy of the dolphin -safe information provided to
consumers on the U.S. label is essential to the achievement of the measure 's objectives. If the
certification is inaccurate, then the error wil l be replicated throughout the tracking and verification
process — to the extent that a functioning tracking and verification process exists — with the
consequence that the tuna product produced using that tuna will be erroneously labelled. As
explained ab ove, where there is a high risk that inaccurate dolphin -safe information will be
provided to consumers, there is a high risk that the U.S. market will be used to encourage fishing
fleets to catch tuna in a manner that adversely affects dolphins. Thus, a hi gher risk of inaccurate
certification in an ocean area results in a higher overall risk of harm to dolphins in that ocean area.
67. As a consequence, a relevant and material factor in both the "rational connection "
assessment and the "calibration" assessment is that certain major suppliers of tuna for the U.S.
market have been the subject of detailed reports by the European Commission identifying them as
non-cooperating countries in fighting IUU fishing and unreliable in terms of accurate or complete
reporting and record-keeping. For example, the Philippines was found to have a lack of checks on
logbooks. Chinese Taipei vessels were found to have inconsistent information concerning catch,
master declarations, logbooks, International Commission for the Conser vation of Atlantic Tunas
(ICCAT) statistic documents, and dolphin safety declarations . The United States has provided no
explanation as to how or why the captains ' self-certifications from the fleets of these countries
should be treated as reliable or accurate.
68. Noting that the Appellate Body 's guidance is to assess whether the tuna measure is
calibrated to the risks to dolphins arising from different fishing methods in different areas of the
oceans, it is pertinent and appropriate for the Panels to eval uate the application of the regulatory
distinctions not just on the basis of the fishing methods, but also on where they are being used.
The reliability (or unreliability) of a fishing fleet or the regulatory authorities that oversee the fleet
are relevant factors in the analysis.
d. The Tracking and Verification Requirements
69. Contrary to the United States ' assertions, arguments, and purported evidence, there
remain dramatic differences between the design and application of the tuna measure 's different
tracking and verification regimes applicable to the tuna harvested by large purse seine vessels in
the ETP, on the one hand, and tuna harvested by other fishing methods in other ocean areas, on
the other hand.
70. The tuna measure continues to require tuna products made with tuna harvested in the ETP
large purse seine fishery to be supported by the documentation required under the AIDCP regime.
The first compliance panel found that the AIDCP 's comprehensive regime ensures that the
information regarding whether or not a catch of tuna is AIDCP -certified dolphin-safe accompanies
the tuna at every stage throughout the fishing and production processes, from the point of catch
right through to the point of retail. Specifically, it found that every step of the catch and canning
process for tuna caught by large purse seine vessels in the ETP is prescribed, can be monitored by
national and regional agencies, and is subject to some sort of governmental (including regional
and international) oversight, and the responsible authorities are thus able to verify at any stage of
the catch and canning process whether a particular batch of tuna is dolphin -safe. The factual
circumstances underpinning these findings have not changed, and the panel 's findings continue to
apply.
71. In contrast, the most recently amended tuna measure is neither designed nor applied in a
manner that can ensure that dolphin -safe certifications made outside the ETP can be connected
with the tuna contained in a tuna product produced in the United States o r any other country.
Unlike the Mexican tuna industry, most major tuna products companies in other countries are not
vertically integrated. They purchase tuna from third party companies, and in many cases the tuna
passes through several parties before it i s processed into a tuna product. The path of tuna from
the point where it is harvested from the ocean to the point where it is processed into a tuna
product for the U.S. market may involve transhipment at sea, consolidation from multiple fishing
vessels into a refrigerated carrier, and IUU fishing activities. Outside the ETP, however, there are
no requirements under the tuna measure for, and no actual established practice of, segregating
dolphin-safe tuna from non -dolphin-safe tuna in separate storage wells or during transhipment.
None of the documents submitted by the United States shows that even U.S. processors require
fishing vessels to have separate storage wells for the segregation of dolphin -safe and non-dolphin-
safe tuna.
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72. The most recent amendments to the tuna measure purport to require U.S. processors and
importers to collect and retain for two years "information on each point in the chain of custody
regarding the shipment of the tuna or tuna product to the point of entry into U.S. commerce ".
However, the tuna measure imposes no obligation on U.S. processors or importers to validate or
audit the documentation that they receive. Moreover, the Department of Commerce lacks
jurisdiction to audit foreign fishing vessels, carrier vessels, and foreign pr ocessors on the basis of
this documentation. Under other U.S. regulatory compliance programs (unrelated to fishing), a
U.S. company would be expected to audit its suppliers or customers, and to have records of such
audits available for review by U.S. government authorities, but there are no such obligations under
the tuna measure.
73. These gaps and deficiencies are exacerbated in ocean regions where there is unreliable
reporting and record-keeping. In this respect, the European Communities' reports on Thailand, the
Philippines and Chinese Taipei are especially important. For example, the report on Thailand found
that the documentation schemes developed by the authorities for the purpose of traceability are
being used incorrectly by operators, allowing them to launder fish by over -declaring the incoming
quantities from erroneous catch certificates. Similarly, the report on the Philippines found that
there is neither a working traceability system nor any measure to ensure that authorities are
controlling the veracity of information and traceability of transactions pertaining to the fishing and
transhipment activities of their vessels. The report on Chinese Taipei determined that there is no
traceability system able to ensure full transparency in all stages of f ishing transactions (i.e. catch,
transhipment, landing, transport, factory processing, export and trading), and there is no certainty
that what is recorded in the authorities ' systems corresponds with what is recorded in the
companies' accounting and production systems.
74. The United States argues that the regulatory differences in the tuna measure 's tracking
and verification requirements are calibrated because "it is appropriate to use a more 'sensitive'
mechanism where the risks of dolphin mortality and serious injury are high, and a less 'sensitive'
mechanism where the risks of dolphin mortality and serious injury are low. In this regard, the
United States relies on the dissenting opinion of the minority panellist in the first compliance
proceedings to justify a greater "margin of error" in the application of the measure to other fishing
methods in other ocean areas. However, the United States ' position that calibration can justify
"margins of error " in the accuracy of the dolphin -safe label among differe nt fishing methods and
fisheries is legally incorrect. Such an interpretation ignores the large body of jurisprudence on the
meaning of arbitrary or unjustifiable discrimination, which involves the question of whether or not
a rational connection exists be tween the detrimental impact caused by the measure and the
objectives of the measure. This is a crucial element of the legal analyses for both even -
handedness under Article 2.1 of the TBT Agreement and arbitrary or unjustifiable discrimination
under the chapeau to Article XX of the GATT 1994 because it ensures symmetry in the calibration
tests conducted under each of these provisions.
B. The Tuna Measure is Inconsistent with Art icles I:1 and III:4 of the
GATT 1994 and Cannot be Justified under Article XX
75. In its submissions, Mexico has established a prima facie case that the tuna measure is
inconsistent with Articles I:1 and III:4 of the GATT 1994. The United States does not dispute these
inconsistencies. Further, Mexico agrees with the United States that the measure provisionally falls
within the general exception in subparagraph XX(g) of the GATT 1994. Mexico and the United
States disagree on whether or not the requirements of the chapeau of Article XX are met, namely
the requirement that the measure mus t not be applied in a manner that constitutes a means of
arbitrary and unjustifiable discrimination.
76. The burden is on the United States to demonstrate that the requirements of the chapeau
of Article XX are met.
77. In the original compliance proceedin gs, the Appellate Body found that, in the
circumstances of this dispute, an assessment of whether the requirements of the tuna measure
are calibrated to the likelihood that dolphins would be adversely affected in the course of tuna
fishing operations in th e respective conditions was relevant for an analysis of arbitrary or
unjustifiable discrimination under the chapeau. The Appellate Body further found that, so long as
the similarities and differences between Article 2.1 of the TBT Agreement and Article XX of the
GATT 1994 are taken into account, it may be permissible to rely on reasoning developed in the
context of one agreement for the purposes of conducting an analysis under the other. Thus, given
that Mexico 's arguments under both Article 2.1 of the TBT Agreement and the chapeau of
Article XX of the GATT 1994 are grounded in the assssment of arbitrary and unjustifiable
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discrimination, it is appropriate for Mexico to rely upon its submissions regarding the lack of
calibration under Article 2.1 to establis h that the 2016 tuna measure is applied in a manner that
constitutes a means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, such that the requirements of the chapeau are not met.
78. The Panels need only t o find that there is evidence of one example where the tuna
measure is not designed or applied in a manner that is commensurate with, or properly tailored to,
the overall relative risks or levels of harm to dolphins arising from different fishing methods i n
different ocean areas in order to conclude that the United States has not satisfied its burden.
Mexico has presented considerable evidence and arguments to demonstrate that (i) the tuna
measure was never "properly tailored to " and is not otherwise "calibrated" to the risk profiles of
the ETP large purse seine fishery and other tuna fisheries, and (ii) the tuna measure is designed
and applied in a manner that constitutes a means of arbitrary and unjustifiable discrimination.
79. Consequently, the tuna meas ure cannot satisfy the require ments of the chapeau of
Article XX, and the United States has not met its burden to show otherwise. Therefore, the
inconsistencies with Article I:1 and III:4 of the GATT 1994 cannot be justified under Article XX of
the GATT 1994.
IV. CONCLUSION
80. For the reasons set out in Mexico 's submissions in these two proceedings, Mexico
respectfully requests that the Panels reject the United States ' claims under Article 21.5 of the DSU
in their entirety and find that the tuna measure is inconsistent with Article 2.1 of the
TBT Agreement and Articles I:1 and III:4 of the GATT 1994, and ca nnot be justified under
Article XX of the GATT 1994.

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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Australia C-2
Annex C-2 Executive summary of the arguments of Brazil C-5
Annex C-3 Executive summary of the arguments of Canada C-8
Annex C-4 Executive summary of the arguments of Ecuador C-12
Annex C-5 Executive summary of the arguments of the European Union C-13
Annex C-6 Executive summary of the arguments of Japan C-16
Annex C-7 Executive summary of the arguments of New Zealand C-19
Annex C-8 Executive summary of the arguments of Norway C-21
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ANNEX C-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I. INTRODUCTION
1. Australia's statements have addressed several issues raised in these proceedings under the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).
2. This summary sets out Australia's views on the function and scope of Article 21.5 of the DSU
proceedings and the core inquiry of an analysis under Article 2.1 of the Agreement on Technical
Barriers to Trade (TBT Agreement).
II. FUNCTION AND SCOPE OF PROCEEDINGS UNDER ARTICLE 21.5
3. The Appellate Body has stated that a compliance review should not be confined to an
assessment of whether a responding Member has implemented a Dispute Settlement Body (DSB)
recommendation. Article 21.5 of the DSU instead requires a panel to examine the consi stency of
the measures taken to comply with the WTO Agreement.1
4. The Appellate Body has also previously noted that these proceedings form part of a
continuum – this requires due recognition to be accorded to the recommendations and rulings
made by the DSB in the original proceedings, based on the adopted findings of the Appellate Body
and original panel.2
5. Australia does not consider that it is the purpose of a compliance review to re -open
questions which have been substantively answered by the Appellat e Body in earlier proceedings
and are not required to be re -visited in light of a new and different measure. Australia notes, in
this context, that a key objective of the dispute settlement system is to promptly resolve disputes
and provide clarity to Memb ers on their WTO obligations. In that regard, Australia considers that
the Panel should focus its considerations on whether the 2016 IFR has addressed the issues which
the Appellate Body found to cause the inconsistency of the previous measure with Article 2.1 of
the TBT Agreement and Articles I:1 and III:4 of the General Agreement on Tariffs and Trade
(GATT 1994).
III. THE CORE INQUIRY OF A TBT AGREEMENT ARTICLE 2.1 ANALYSIS
6. The Appellate Body has made clear that not every instance of a detrimental impa ct on
imports arising from a technical regulation constitutes a b reach of Article 2.1 of the
TBT Agreement.3 Where such detrimental impact stems exclusively from a legitimate regulatory
distinction, the technical regulation does not violate Article 2.1.4
7. Thus, once a de facto detrimental impact on imports is established, Australia considers the
crux of an Article 2.1 analysis is in determining whether the regulatory distinction at issue is
designed and applied in a manner that is legitimate (or is inste ad designed and applied in a
manner that constitutes a means of arbitrary or unjustifiable discrimination).
IV. CONSIDERATION OF OBJECTIVES IN AN ARTICLE 2.1 ANALYSIS
8. Australia considers that an assessment of the legitimacy of the regulatory distinction at issue
must be made in light of the objective of the technical regulation. In Australia 's view, determining
the legitimacy of the regulatory distinction requires an analysis of whether the regulatory
distinction is rationally connected to the objective of the technical regulation. Where the regulatory
distinction bears no rational connection to the objective of the technical regulation, Australia

1 Appellate Body Report, Canada – Aircraft (Article 21.5), paras 40 – 42.
2 Appellate Body Report, US – Tuna II (Article 21.5 – Mexico), para 7.112.
3 Appellate Body Reports, US – COOL, para. 271.
4 Appellate Body Reports, US – COOL, para. 271.
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considers it would constitute arbitrary or unjustifiable discrimination and amount to a breach of
Article 2.1.
9. Australia considers that the objectives of the measure at issue in this dispute formed an
integral part of the calibration analysis articulated by the Appellate Body in the original
proceedings, and that it is unnecessary for the Panel in these proce edings to undertake a revised
analysis of the contribution of the policy objectives to the measure. Australia considers that the
Panel instead ought to focus on, and make a decision with respect to, the defined issue in these
proceedings – whether the 2016 IFR is consistent with the WTO Agreement – in accordance with
the calibration analysis test which the Appellate Body has previously and clearly outlined, and
which already takes account of the measure's objectives.
V. CALIBRATION ANALYSIS
10. Australia considers that the calibration analysis adopted by the Appellate Body in the original
proceedings was used as a means of determining whether the regulatory distinction imposed by
the measure at issue was legitimate (or instead constituted a means of arbitrar y or unjustifiable
discrimination) in the particular circumstances of this dispute. The Appellate Body described
calibration as having "special relevance in these proceedings ".5 It also clarified that calibration is
"not, in and of itself, a generally appl icable test of whether detrimental impact stems exclusively
from a legitimate regulatory distinction " but rather terminology that originated in the United
States' submissions.6 The Appellate Body further emphasised that the "use of the terms 'even-
handed' and 'calibrated' did not constitute different legal tests."7
11. In Australia 's view, calibration should be viewed as a useful analytical method when the
circumstances of a case warrant its use. However, it should only be used to inform an analysis of
the core inquiry – which is whether a regulatory distinction is legitimate, or instead constitutes
arbitrary or unjustifiable discrimination. It is not of itself a test of consistency with Article 2.1.
VI. EVEN-HANDEDNESS
12. Similarly, the even -handedness of a measure has been identified by the Appellate Body as
one of the considerations that goes to determining whether or not a detrimental impact stems
exclusively from a legitimate regulatory distinction as opposed to constituting arbitrary or
unjustifiable discrimination.
13. The Appellate Body first used the phrase "even-handed" in connection with Article 2.1 in
US — Clove Cigarettes , saying that in making an assessment of whether a differentiation stems
from a legitimate regulatory distinction:
 …a panel mu st carefully scrutinize the particular circumstances of the case, that is, the
design, architecture, revealing structure, operation, and application of the technical
regulation at issue, and, in particular, whether that technical regulation is even -handed, in
order to determine whether it discriminates against the group of imported products.8
14. The issue was again examined in US — COOL, which cited the Clove Cigarettes decision.
However, here, the Appellate Body appears to have treated even -handedness as being the test for
legitimate regulatory distinction rather than merely part of the test, as had been the case in Clove
Cigarettes, in finding that:
In assessing even -handedness, a panel must "carefully scrutinise the particular
circumstances of the case…" (emphasis added)9
15. The Appellate Body report in the original proceedings of the current matter cited the Clove
Cigarettes version of the test, 10 but in the compliance proceedings the Appellate Body used the
US — COOL formulation (despite citing US — Clove Cigarettes).11

5 Appellate Body Report US — Tuna II (21.5 — Mexico), para. 7.101.
6 Appellate Body Report US — Tuna II (21.5 — Mexico), para. 7.154.
7 Appellate Body Report US — Tuna II (21.5 — Mexico), para. 7.98.
8 Appellate Body Report US — Clove Cigarettes, para. 182.
9 Appellate Body Reports US — COOL, para. 271.
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16. In Australia's view, as with the calibration analysis, even -handedness should be viewed as a
useful analytical method when the circumstances of a case warrant its use. However, it should only
be used to inform an analysis of the co re inquiry – which is whether a regulatory distinction is
legitimate, or instead constitutes arbitrary or unjustifiable discrimination. It is not of itself a test of
consistency with Article 2.1.
VII. OBJECTIVES OF THE 2016 TUNA MEASURE
17. Australia agrees that the objectives set out by the Panel 12 continue to be the objectives of
the 2016 Tuna Measure. In Australia 's view it is important to see these as inter -linked and
mutually supportive objectives.
VII CONCLUSION
18. In its compliance stage report in this matter, the Appellate Body "noted that, in determining
whether the detrimental impact on imports stems exclusively from a legitimate regulatory
distinction, the 'particular circumstances' of the case may inform the appropriate way in which to
assess even-handedness in that specific case." This is clearly true. The differentiations made within
a measure, the bases on which those differentiations are made, and the way they interact with the
measure's objectives will all dictate the analytical process required of a panel in a given case.
19. However, in Australia 's view, the core inquiry of any such assessment is determining
whether the regulatory distinction at issue is designed and applied in a manner that is legitimate,
or is instead designed and app lied in a manner that constitutes a means of arbitrary or
unjustifiable discrimination. The particular analytical process adopted by a panel in the specific
circumstances of a given case should give effect to, not replace, this core inquiry.

11 Appellate Body Report US — Tuna II (21.5 — Mexico), para. 7.31, 7.97, 7.239.
12 As set out in 'Questions in advance of the Panels' Third Party session' circulated 17 January
2017:"first, ensuring that consumers are not misled or deceived about whether tuna products contain tuna that
was caught in a manner that adversely affects dolphins, and, second, contributing to the protection of dolphins,
by ensuring that the US market is not used to encourage fishing fleets to catch tuna in a manner that
adversely affects dolphins."
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ANNEX C-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
1. Brazil's comments focus on the following issues: (i) the scope of the even -handedness test;
(ii) the characterization of the Tuna measure; (iii) the relationship between the even -handedness
test and the objective of the measure, and (iv) the role of Article 2.2 of the TBT Agreement.

I. The scope of the even-handedness test
2. Brazil understands that the main issue before the Panel is what should be the proper scope
for the even -handedness test to establish that Mexic an tuna is accorded treatment no less
favourable that that accorded to like products of US origin or to like products originating in any
other country, as provided for in Article 2.1 of the TBT Agreement. In Brazil's view, the Panel
should adopt a holistic approach in determining the elements that compose the even -handedness
test, taking into account the objectives of the measure. The Panel should also ensure that the
objective of the measure is assessed from a broader standpoint, in light of all the releva nt
circumstances related to the protection of the legitimate objective, so as to reduce the room for
concealing arbitrary and unjustifiable restrictions on international trade

3. For Brazil, in formulating the even -handedness test in the present dispute, t he Panel should
be guided by the level of adverse effects and not by the fishing methods. It is also important that
the Panel do not lose sight of the importance that the even -handedness of the measure be
assessed on the basis of performance requirements, and not in relation to a specific technology. In
this regard, the Panel should be cautious of statements that suggest that the only fishing methods
that do not pose any harm to dolphins are those adopted by developed countries with ample
means to purchase the most novel (and expensive) technologies.

II. The characterization of the Tuna measure
4. Brazil does not dispute that WTO Members have the right to adopt technical regulation to
pursue their legitimate objectives and that preventing adverse effects to d olphins is a legitimate
objective. Brazil recalls however that, as the Appellate Body has ruled in previous disputes,
adjudicators are not bound by a Member's characterization of its measure, making it clear that the
formulation of a measure cannot encompass discriminatory exceptions unrelated to its objective.

5. In these proceedings, the United States has identified its objective in relation to fishing
methods and their adverse effects to dolphins. The question, thus, is whether, given the particular
circumstances of the case, focusing exclusively on the fishing methods as the eligibility criteria for
the US "dolphin-safe" could justify a different regulatory treatment for Mexican tuna.

6. In this regard, Brazil agrees with Mexico that "it is essential that the Panel distinguish
between the activities that define the fishing method and the level of adverse effects on dolphins
caused by those activities". This is a similar consideration as the one made by Professor Mavroidis
in discussing the Appellate Body Report in the original proceedings:

"The question before the Panel should be whether the 'dolphin -safe' label had
been accessible to all tuna meeting the regulatory requirements irrespective of
the manner in which it had been fished. Performance requireme nts (e.g., all
who use a fishing method for tuna which guarantees that x or less quantity of
dolphins will be killed will have access to a 'dolphin-safe' label) are preferable to
process requirements (only those who use a particular fishing technique will
have access to the 'dolphin -safe' label) for a number of reasons ranging from
reaping gains from innovation to reducing the risk for protectionism by
promoting a domestic technique, and shifting adjustment costs to foreign
imports."

7. In Brazil's view, the level of adverse effects to dolphins would need to be assessed by
measurable (quantitative) performance requirements, as for instance, the evidence related to the
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growth of dolphin stocks, as suggested by Mexico. Hence, the mere reference to possible
unobserved consequences of different fishing methods cannot justify less favourable treatment.
Such effects need to be measured, so that it is possible to assess whether the detrimental
treatment is calibrated to the risk to dolphins in different fisheries . In this context, Brazil would
also like to caution the Panel against widening the margin for the adoption of non -product related
PPMs
8. Moreover, it makes little sense that the contribution of a given fishing method to the
protection of dolphins should be considered in isolation, while this same method may be harmful to
other species or to the marine environment.

III. The relationship between the even -handedness test and the objective of the
measure
9. Brazil is of the view that even -handedness needs to be assessed in relation to both
objectives of the measure, as initially characterized by the United States in the original
proceedings namely: i) "ensuring that consumers are not misled or deceived about whether tuna
products contain tuna that was caug ht in a manner that adversely affects dolphins"; and ii)
"contributing to the protection of dolphins, by ensuring that the US market is not used to
encourage fishing fleets to catch tuna in a manner that adversely affects dolphins". The first
relates to consumer protection and the second to the protection of the environment.

10. In what concerns the consumer protection aspect of the measure, Brazil understands that
the US's definition of "dolphin safe" is particular sensitive of the way tuna is caught and would not
allow consumers to be informed of the reduction in dolphin mortality made possibly by other
methods. In Brazil's views nothing on the records of these proceedings seem to support the
assertion that consumers are more concerned with the way tuna is caught than with the adverse
effects to dolphins.

11. Brazil understands that in these proceedings the United States has tried to present the Tuna
Measure as primarily related to the protection of dolphins, adapting the formulation of the
objective of the measure to suit its own purposes. Yet if the Tuna Measure is not designed to
protect consumers in US territory – but dolphins in all quarters of the world – this would mean that
the United States would be acting beyond its jurisdiction.

12. This would be very different from the situation in US-Shrimp. In that case, the Appellate
Body explained that, since turtles were a migratory species occurring also in US territorial waters,
the measure had a sufficient territorial connection to be justified under Article XX of the GATT.1 In
the present dispute, whether there is such a territorial link was never part of the equation, for the
measure has always been mainly about consumer protection. However, if we are now to accept the
US's argument that the measure main objective is the protection of dolphins all over the world,
and that consumer information is only a secondary aspect of the measure, then these
considerations become not only relevant, but would need to be clearly established.

13. Brazil considers t hat, by emphasizing the environmental aspects of the measure to the
detriment of its consumer information component, the United States is purposely trying to divert
the Panel's attention from the measure's shortcomings concerning accuracy.

14. Brazil is not convinced by the United States' argument that, given that dolphin protection is
the main objective of the measure, if the measure is appropriately calibrated to the risks to
dolphins in different areas of the ocean, then any regulatory distinctions, in cluding the differences
in accuracy of the information contained in the dolphin safe label, are consistent with the
measures objectives. For Brazil, it is difficult to see how a measure that, in some cases, can result
in granting the US dolphin -safe label to tuna caught in a fishing trip whether dolphins were killed
or seriously harmed could be capable of fulfilling its legitimate objectives. It seems only logical
that the granting of the dolphin safe label in such situation would not only be misleading to
consumers, but it also would not contribute to the objective of dolphin protection.

15. In Brazil's view, the United States is misinterpreting the reasoning of the Appellate Body in
paragraphs 7166 to 7169 of its report in the first compliance proceedi ngs. There, the Appellate

1 Appellate Body Report, US-Shrimp, para. 117-119.
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Body faulted the Panel for having segmented its analysis, and for not considering that "the
accuracy of the US dolphin -safe label can be compromised at any stage of the tuna production
stage, in contradiction with the objectives o f the amended tuna measure". It is thus clear that
accuracy is a fundamental element of the analysis.

16. As Brazil sees it, while the Appellate Body made clear that even -handedness is also relevant
when assessing the tracking and verification requiremen ts, it has never suggested that differences
in risk profiles in different fisheries would justify diminishing the accuracy of the measure. This is
to say that there may be differences in the means the Tuna Measure employs to certify that no
dolphins were killed or seriously harmed but under no circumstance should such differences result
in mislabelling of the tuna products.

17. Brazil is also not convinced by the US's argument that ensuring that the measure is
calibrated to the different risk profiles in different fisheries would automatically entail that the
measure is also calibrated to the different certification, tracking and verification requirements. As
the Appellate Body has explained, the "assessment of the even -handedness of the amended tuna
measure must take account of the fact that its various elements – the eligibility criteria, the
certification requirements, and the tracking and verification requirements - establish a series of
conditions of access to the dolphin -safe label". This means that both objectives of the measure
need to be assessed in relation to all its elements.

IV. Conclusion: The role of Article 2.2 of the TBT Agreement
18. Brazil considers that a large part of the difficulties in crafting a consistent test of even -
handedness in this dispute results from the fact that Members are dealing with one single, narrow
definition of dolphin -safe designed unilaterally by the United States and to be enforceable
worldwide. In Brazil's opinion, there are different ways to protect dolphins. The AIDCP countries
made large investments to ensure that dolphin mortalities in the ETP were reduced to levels
approaching zero. They adopted stringent certification criteria to make sure that no tuna caught in
a manner that adversely affects dolphins wo uld be granted the AIDCP dolphin-safe label. Yet, they
can neither use their label in the US market, nor can they inform consumers of how they are
ensuring the protection of dolphins. At the same time, the United States is claiming that accuracy
is not a relevant consideration of the Tuna Measure, which means that the measure is not capable
of fulfilling its consumer information objective.

19. In the original proceedings, the Appellate Body found that the AIDCP dolphin safe label
would not be a less trade restrictive alternative to the US dolphin safe-label because it was limited
to the ETP and did not address unobserved mortalities. However, given the shortcomings of the
Tuna Measure, the Appellate Body could be confronted with a scenario where labels rela ting to the
protection of dolphins in different fisheries coexisted in the US market. These would be less trade
restrictive alternatives to the Tuna Measure that would allow consumers to fully exercise their
preferences in relation to dolphins protection m easures. The Appellate Body's jurisprudence in US-
COOL (21.5) could be relevant in this regard.

20. Brazil understands that Article 2.2 of the TBT Agreement is not being raised in these
compliance proceedings. However, as Canada has argued in its Third P arty Submission, the
balance of rights and obligations under the TBT is not safeguarded exclusively by Article 2.1. Brazil
feels that, in these proceedings, the Appellate Body has fallen short of giving Article 2.2 its full
meaning.
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ANNEX C-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
I. THE LEGITIMATE REGUL ATORY DISTINCTION TE ST UNDER ARTICLE 2.1 OF THE
TBT AGREEMENT IS NOT A TEST OF "EVEN-HANDEDNESS"
A. The Legal Standard to be Applied
1. The United States and Mexico disagree on how to apply the legiti mate regulatory distinction
(LRD) test under Article 2.1 of the TBT Agreement. In particular, the disputing parties advance
competing views on the relevance of "calibration" and its role in assessing whether the detrimental
impact to competitive opportuni ties for imported products arising from the amended measure
stems exclusively from a legitimate regulatory distinction.
2. The arguments of the disputing parties rely on previous panel and Appellate Body Reports in
this dispute, which have found that asses sing whether the regulatory distinctions are properly
calibrated to the risks to dolphins posed by the various fishing methods used is an appropriate
basis upon which to determine whether the measure is "even -handed" and therefore meets the
LRD test.
3. Canada agrees that, in the circumstances of this dispute, calibration is a valid conceptual
tool to determine whether the detrimental impact on competitive opportunities for imported
products arising from the design or application of the measure stems exclus ively from a LRD.
However, Canada does not agree that even -handedness is the appropriate legal standard to be
applied in determining whether the detrimental impact on competitive opportunities for imported
products stems exclusively from a LRD.
4. The even-handedness legal standard, as first articulated by the Appellate Body, derives from
the sixth recital of the preamble of the TBT Agreement. According to the Appellate Body, the
language of the sixth recital suggests that Members have a right to use tech nical regulations in
pursuit of their legitimate objectives, provided that they do so in an even -handed manner and in a
manner that is otherwise in accordance with the provisions of the TBT Agreement.
5. In Canada's view, refashioning the explicit language of the sixth recital into the vague and
subjective concept of even-handedness is neither necessary nor appropriate as a descriptor for the
legal standard to be applied. Specifically, the term even -handedness has no clear relationship with
the "arbitrary o r unjustifiable discrimination or a disguised restriction on international trade"
standard articulated in the sixth recital.
6. There are at least three reasons why the even -handedness legal standard, as articulated by
the Appellate Body in US – COOL, is n ot appropriate in the context of the LRD test in
TBT Article 2.1.
7. First, in Canada's view, there is no textual support for even -handedness as an independent
legal standard. The term does not appear in either the fifth or sixth preambular recital or in
Article 2.1 itself. Despite this, starting with US – COOL, the Appellate Body appears to have
framed even -handedness, not as short -hand for the interpretive guidance found in the sixth
recital, but as an independent legal standard that must be met to comply with the non -
discrimination obligation in Article 2.1. More specifically, the Appellate Body took the position that
arbitrary and unjustifiable treatment is simply an example of the absence of even-handedness.
8. Second, Canada considers that there is n o obvious contextual or even conceptual
relationship between the language in the fifth and sixth recitals of the TBT Agreement and even -
handedness as an independent legal standard.
9. The fifth and sixth recitals contain two central legal concepts. The fir st concept is necessity.
The second concept is the requirement that, even when measures are necessary, they must not be
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applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination (AUD), or
a disguised restriction on international trade.
10. The necessity concept is explicitly captured by the obligation in Article 2.2. Canada is
therefore of the view that the concept has, at most, a very limited role to play in the interpretation
of Article 2.1. Otherwise, it could result in the conflation of the disciplines of Articles 2.1 and 2.2.
11. The AUD and disguised restriction language, on the other hand, is clearly relevant to the
non-discrimination obligation in Article 2.1, which, by its nature, focuses on regulatory distinctions
between products. This link is not, in principle, different from the relationship between the
non-discrimination obligations in the GATT, such as Article III:4, and general exceptions in
GATT Article XX.
12. The LRD element in TBT Article 2.1 reflects the sa me balance found in GATT Articles III:4
and XX. This is the balance between the right to regulate and desire to ensure that regulatory
measures do not constitute a means of AUD, or a disguised restriction on international trade, as
indicated in the sixth recital of the preamble to the TBT Agreement.
13. In both Brazil – Retreaded Tyres and EC – Seal Products, the Appellate Body identified the
AUD phrase as encapsulating the idea of a rational connection between discrimination caused by
the measure and its policy objective. Such a rational connection exists where there is a close and
genuine relationship of ends and means between the discrimination (or, in the case of
TBT Article 2.1, the regulatory distinction) and the policy objective being pursued.
14. Of course, the precise nature of the terminology used would matter less if it was made clear
that when we speak of "even -handedness" we are really talking about arbitrary or unjustifiable
discrimination. The Appellate Body seemed to suggest as much in US - Tuna II (Mexico) when it
said that the sixth recital sheds light on the meaning and ambit of the "treatment no less
favourable" requirement, by making it clear that technical regulations may pursue legitimate
objectives but must not be applied in a manner that would constitute a means of AUD.
15. However, as Canada explained earlier, the Appellate Body's shifting language indicates that
it does not consider even-handedness to be limited in this manner.
16. The third reason that Canada considers the Appellate Body's interpretive reasoning to be
problematic has to do with potential for an imbalance to arise between the GATT and the
TBT Agreement.
17. This imbalance could arise where a technical regulation is challenged under both the
TBT Agreement and the GATT. If that measure were to be challenged under both TBT Article 2.1
and GATT Article III:4, and is found to have resulted in a detrimental impact on the competitive
opportunities on imports, it is at least conceivable that it could be found to be justified under
GATT Article XX but at the same time be found to have violated Article 2.1.
18. This possibility would exist because the legal standard for satisfying the LRD test is
seemingly different from, and more stringent than, the test in the chapeau of Artic le XX. The
Appellate Body has indicated that the absence of AUD is not sufficient to show that the measure is
even-handed. Thus a technical regulation that does not give rise to AUD can nevertheless fail the
even-handedness standard. As a result, the mea sure would violate TBT Article 2.1, while at the
same time being justifiable under GATT Article XX because it complies with the AUD standard in
the chapeau.
19. This is incongruous with the Appellate Body's statement in US – Clove Cigarettes that the
balance between trade liberalization and the right to regulate reflected in GATT Article III:4 and
Article XX is, in principle, not different from the balance reflected in Article 2.1 of the
TBT Agreement. Canada considers that it would also be incongruous wit h the object and purpose
of the TBT Agreement.
20. Canada therefore considers that the appropriate standard for whether the detrimental
impact on competitive opportunities for imported products stems exclusively from a legitimate
regulatory distinction in Article 2.1 should simply be whether that regulatory distinction, whether
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in its design or application, gives rise to arbitrary or unjustifiable discrimination, or a disguised
restriction on international trade.
B. The relationship between the LRD legal standard and calibration
21. In regard to the case at hand, Canada considers that the question of whether the
US measure is calibrated does not need to be answered with reference to whether the measure is
"even-handed". Rather, in Canada's view, whether the measure is calibrated fundamentally is a
question of whether there is a rational connection between the policy objective being pursued and
the regulatory distinctions being drawn.
22. A measure that is not calibrated to the risks to dolphins arising from the various fishing
methods used in different parts of the oceans may result in tuna being labelled and sold on the US
market as dolphin safe when it is not. This would run contrary to the stated objectives of the
measure and would therefore fail the rational connection test under the AUD legal standard. This is
consistent with the AUD standard elaborated by the Appellate Body in Brazil – Retreaded Tyres
and affirmed in EC – Seal Products.
23. Therefore, the Panels need not, and should not, resort to the ev en-handedness legal
standard. To determine whether the US measure meets the LRD test, all it needs to do is
determine whether there is a rational connection between the US measure and the objectives it
pursues; a measure that is properly calibrated to the risks to dolphins arising from the various
methods of fishing tuna in different areas of the oceans would reflect such a rational connection.
C. Establishing Whether the Measure Satisfies the LRD Test Requires an
Examination of the Relationship Between the Regulatory Distinction and
the Objective of the Measure
24. As the Appellate Body indicated in US – Tuna II (Mexico) (Article 21.5 – Mexico),
determining whether the measure is even -handed, and therefore that the detrimental impact
stems exclusively from a legitimate regulatory distinction, hinges on the relationship between the
measure and the policy objective(s) being pursued. If there is no nexus between the regulatory
distinctions drawn by the measure and the objective being pursued, or that relation ship is weak,
this would indicate that the measure is not even-handed. Further, as the Appellate Body indicated
in US – COOL, such a scenario can arise where the regulatory burden imposed on producers is
disproportionate relative to the amount or accuracy of the information provided to the consumer.
25. Similarly, in the case of the US measure at issue in this dispute, the Appellate Body has
determined that a key element in determining whether the measure is even-handed is whether the
labelling conditions are calibrated to – that is, they accurately reflect – the risks to dolphins arising
from the different fishing methods. The relevance of calibration to risks arises from the policy
objectives being pursued. Labelling conditions, including tracking and ver ification requirements,
that are properly calibrated as to risks minimizes the likelihood that a tuna product will be
improperly labelled as dolphin -safe or improperly prevented from using the label; it therefore
strengthens the accuracy of the label, thus contributing to the policy objective of ensuring that
consumers are not misled by the presence of a dolphin -safe label on tuna products. By extension,
an accurate label allows consumers to exercise their preference for dolphin -safe tuna, thus
incentivizing tuna producers to adopt harvesting measures that minimize risks of adverse effects
to dolphins.
II. THE ROLE OF THE OBJE CTIVE OF SUS TAINABLE DEVELOPMENT IN THE
WTO AGREEMENT
26. Mexico claims that the 2016 Tuna Measure is inconsistent with TBT Article 2 .1 because "it
discriminates against an environmentally sustainable fishing method in favour of one that is
unsustainable". Mexico's argument is based on the reference in the first recital in the preamble of
the WTO Agreement to "the optimal use of the wor ld's resources in accordance with the objective
of sustainable development".
27. Canada considers that Mexico's characterization of the role that the reference to sustainable
development in the preamble plays in the interpretation and application of the WT O obligations is
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misplaced, and that Mexico's claim that Members' measures that are inconsistent with the
objective of sustainable development are ipso facto inconsistent with their WTO obligations is
incorrect.
28. The preamble to the WTO Agreement makes it clear that optimal use of the world's
resources in accordance with the objective of sustainable development is an important principle
underlying the WTO Agreement. However, given its preambular status, the role of the reference to
sustainable development in respect of the WTO Agreement itself is circumscribed by the customary
rules of treaty interpretation, as codified in the Vienna Convention on the Law of Treaties
(Vienna Convention).
29. The WTO jurisprudence also confirms the use of the preamble to d etermine the object and
purpose of the treaty, or to inform the meaning of its provisions. The preamble to the
TBT Agreement informs the meaning of the term "treatment no less favourable" as used in
Article 2.1. However, this does not mean that the referen ce to sustainable development in the
preamble can be used to insert a requirement for consistency with this principle as a precondition
for consistency with Article 2.1.
30. Further, the Appellate Body has previously found that the sixth recital of the preamble to the
TBT Agreement does not set out a test that is separate and independent from Article 2.1 itself.
Canada considers that this is equally true of the reference to sustainable development in the first
recital of the WTO Agreement, and consistent w ith Canada's view that compliance with Article 2.1
does not require a separate examination of whether the measure at issue is consistent with the
objective of sustainable development.
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ANNEX C-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF ECUADOR*
The purpose of Ecuador's brief intervention as interested third party in this session devoted to
"third parties" in the dispute United States – Measures Concerning the Importation, Marketing and
Sale of Tuna and Tuna Products , and specifically the recourse by the United States to Article 21.5
of the Dispute Settlement Understanding (DSU) and second recourse by Mexico under the same
article, is to highlight the importance of complying with the provisions of the DSU.

For us, the text of Article 21 of the DSU is clear and precise in providing for "prompt
implementation", i.e. prompt compliance with the recommendations and rulings of the Dispute
Settlement Body (DSB) for the sole purpose of ensuring resolution of a dispute. Clearly, this is
only possible if the parties to a dispute have the will to abide by those provisions.

Article 21 also refers to the particular attention that should be paid to matters affecting developing
country Members of this Organization with respect to measures that are the subject of the dispute,
matters and provisions which, in Mexico's view, the United States has not complied with, since we
consider that the "dolphin safe" labelling measure has not been brought into conformity with the
DSB's recommendations and rulings.

Ecuador reiterates its pos ition in this respect that it is of the utmost importance for Members to
maintain coherence and consistency with their obligations in respect of the covered agreements
under the WTO, and hence the need for the DSB to monitor the implementation of its
recommendations and determinations. Only then will it be possible to maintain the WTO dispute
settlement system as a central element in ensuring the security and predictability of the
multilateral trading system which preserves the rights and obligations of Mem bers under the
covered agreements.

* Ecuador requested that its oral statement at the Panels' joint meetings with the parties be treated as
its executive summary. The original statement was delivered in Spanish.
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ANNEX C-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. In the view of the European Union, the Panels should allow themselves to be guided by the
Appellate Body clarifications in the previous proceedin gs. This means, among others, that the test
of whether a technical regulation accords less favourable treatment to imported products proceeds
in two steps: The first question is whether the technical regulation at issue modifies the conditions
of competition to the detriment of such imported products vis-à-vis like products of domestic origin
and/or like products originating in another country. If so, then as a second step it is to be
assessed whether the detrimental impact on imports stems exclusively from a legitimate
regulatory distinction rather than reflecting discrimination against the group of imported products.
Where the detrimental impact caused by a technical regulation stems exclusively from a legitimate
regulatory distinction, such technical regu lation is not according less favourable treatment to
imported products within the meaning of Article 2.1. As regards the test of whether the
detrimental impact "stems exclusively from a legitimate regulatory distinction", a panel does not
err by assessing whether the detrimental impact can be reconciled with, or is rationally related to,
the policy pursued by the measure at issue. However, this must not preclude consideration of
other factors that may be relevant to the analysis. The central concept for the analysis is "even -
handedness". Even-handedness is a relational concept. It must be tested through a comparative
analysis. Regulatory distinctions by definition treat groups or products differently. A proper
assessment of even-handedness can only be made through examination of the treatment accorded
to all the groups that are being compared. In doing so, the Panels should consider whether the risk
profiles of the relevant fisheries giving rise to the different groups of tuna products are the same
or differe nt. In assessing whether the amended tuna measure is adequately calibrated to the
relative adverse effects on dolphins arising outside the ETP large purse -seine fishery as compared
to those inside that fishery, the Panels are asked to make factual findings regarding the different
risk profiles in these different fisheries.
2. The Panels asked whether accuracy of the information can be considered merely as the
means to achieve the main objective of protecting dolphins. The European Union makes four
observations in this respect. First, as a doctrinal matter, the European Union cautions against any
tendency to narrow down the analysis to a single, all -encompassing objective and to use such a
singular objective as a basis for a roving inquiry into every detail o f a particular measure. As we
noted previously in the COOL case, the broad assessment under Article 2.1, and in particular the
assessment of even-handedness, cannot require regulatory measures to be as pure as the driven
snow. In reality, every measure will have a variety of features that cannot be explained by a single
overriding objective. A measure might have to mitigate adverse effects on a conflicting objective,
or simply on a different objective implicated by the measure. This does not in itself mean that the
measure is not even -handed, or that it reflects discrimination. To require that a measure can be
entirely explained by a single objective, with other objectives only being means to an end or of an
incidental nature, would set the bar prohibitively high for any regulating Member.
3. Second, we will consider the abstract conceptual link between the two objectives at issue in
this case. On the one side, "ensuring that consumers are not misled or deceived about whether
tuna products contain tuna that w as caught in a manner that adversely affects dolphins ", and on
the other side "contributing to the protection of dolphins, by ensuring that the US market is not
used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins ". On an
abstract conceptual level the meaning of the objective of "consumer information" is not exhausted
by considering it as a mere means to an end. The objective of "ensuring that consumers are not
misled or deceived" is legitimate in its own right. In aimi ng for such an objective, a WTO Member
may for example try to give its citizens an informed choice. It may try to make accurate
information available and empower its citizens in taking their own decisions, based on their own
assessments of the accurate inf ormation which they receive. All this may empower an active and
responsible citizenry. This shows that the objective of ensuring that consumers are not misled may
be an objective in its own right. It can go far beyond the objective of protecting of dolphins.
4. Third, on an abstract level and as regards the order of priority between different objectives:
We do not see that on an abstract level, a panel should venture to establish a normative pyramid
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of different objectives to which the panel would accord d ifferent weight. It would go beyond what
could and should reasonably be expected from a Panel or the Appellate Body, and would indeed
encroach on the regulatory space of WTO Members, if WTO dispute settlement organs were to try
to establish an abstract pyramid of importance for different objectives under Article 2.1.
5. Fourth, the fact that in abstract terms, such objectives (accuracy of information and dolphin
protection) may overlap but may remain independent of each other does not necessarily imply that
the United States has presented them as fully independent in these proceedings.
6. In addition to the observations set out in our written and oral statements, the European
Union would like to respond to the Panels' questions, taken as a whole, with four main points.
7. First, we do not consider that the Panels' task is limited to considering or focussing on only
the eligibility criteria. On the contrary, we consider that the Panels must consider the measure as a
whole, and this will necessarily include a consideration of the other elements, including the
certification requirements, the tracking and verification requirements and the determination
provisions. The Panels will have to take a view about the measure as a whole that is balanced and
reasonable. In this respect, we also observe that regulatory measures may legitimately pursue
more than one objective simultaneously, and indeed this is quite usual. It is also quite possible for
there to be multiple objectives that are, in some way, in counterpoint wit h each other. This may
mean that the measure contributes towards achieving one particular objective, but that such
contribution is inherently limited by the desire to purse the other objective at the same time. This
does not in itself necessarily mean that the measure is internally incoherent or inconsistent,
disclosing the existence of de facto discrimination.
8. Second, we wish to emphasise again that regulatory space or regulatory autonomy is as
much a pillar of the WTO legal system as MFN or national treatment. The WTO does not envisage
complete international harmonisation. For similar reasons it does not envisage that successive
panels on the same issue will gradually whittle away at the regulatory space of the regulating
Member until but one regulato ry solution remains. Rather, a given regulatory problem may be
susceptible to being dealt with by means of more than one regulatory response. For regulatory
space to have any meaning there must be situations in which two or more solutions present
themselves, and the regulating Member remains free to choose between them without a panel
second guessing that choice.
9. In this respect, as the Appellate Body has explained, Article 2.2 of the TBT Agreement
(which sets out a necessity test, not a pure or strong p roportionality test) contextually informs an
analysis under Article 2.1 of whether or not there is de facto discrimination. The concept of de
facto discrimination is not itself a panacea (and should not be a first port of call), but is rather in
the nature of a safety-net to guard against abuse, in the form of facially origin neutral regulations
that are in fact disguised restrictions on international trade. This means that, in the context of a de
facto discrimination analysis, one should not over -extend beyond the normal necessity analysis. It
is not the adjudicator's task to opine on what the appropriate trade -off should be between the
legitimate objective and the trade restriction. That is a matter for the regulating Member when it
fixes its ALOP (which d etermines what the regulating Member cares about, and how much it cares
about it).
10. In this case, what this means is that we should see that the relative risk profiles of the
various fisheries on the one hand, and the treatment of those differences in t he design and
architecture of the measure at issue, especially in terms of the regulatory costs imposed, on the
other hand, are broadly comparable. For example, if one sees a difference of, for example,
approximately 10:1 in the risk profiles, that is what one would expect to see, approximately, in the
measure at issue. A lower ratio (such as, for example, 8:1) should not even be an issue in this
case, since that would mean that the measure at issue is relatively accommodating to Mexico's
trade interest. In the presence of such a mismatch it would be both unnecessary and incorrect to
conclude that there is an internal incoherence revealing de facto discrimination. On the other
hand, a higher ratio (such as, for example, 12:1) should not necessarily lead to a finding of
breach. These are approximations only. At the very least, when the Panels find themselves
operating within the margin of error of the analytical tools at their disposal they should be
extremely cautious about striking at the measure at issue, s ince there is a severe risk that, in
doing so, they would be trespassing in the regulatory space of the regulating Member. Finally, if
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the ratio appears to be very different (such as, for example, 20:1), then that may be an indication
of breach.
11. Of course, what the margin of error actually is might, in itself, be difficult to quantify and
might thus also be in the nature of an approximation or a qualitative assessment. In such
circumstances, it would become particularly important to pay close attention to where the burden
of proof lies.
12. For these reasons we disagree with Mexico's assertion that the Panels should consider
whether or not there is above de minimis harm to dolphins elsewhere and if so find in Mexico's
favour. To us, that is not the right question. Rather, the question, as set out above, is whether or
not the different risk profiles (be they de minimis or otherwise) are adequately reflected in the
design and architecture of the measure at issue.
13. Third, the burden of proof with respect to the different risk profiles lies with the
complainant, Mexico. Mexico complains that the US is demonstrating a sort of reverse "precaution"
with respect to other fisheries because it declines to assume harm absent evidence to that effect.
In this respec t, the EU notes, by way of context, that under Article 5.7 of the SPS Agreement
(which is generally taken to embody some concept of "precaution") the obligation on the
regulating Member is simply to seek to obtain the information necessary to make a more o bjective
assessment of the risk. That does not mean that the regulating Member is itself required to
conduct the necessary research on behalf of the interested party seeking market access. Rather, it
can simply ask legitimate questions, and it is then for the interested party to adduce the necessary
evidence. Thus, as long as Mexico understands what evidence is required, and as long as the US
authorities are open to receiving such evidence, we do not see here any basis on which to support
a claim of breach by Mexico. We understand that the relevant matters may be relatively hard for
Mexico to prove, and that is something that the Panels can and should take into account – but the
burden rests with Mexico.
14. Fourth, we do not think that calibration (which is not treaty language) means precise
quantitative analysis – or hyper or ultra-calibration. There is plenty of case law in the field of trade
remedies that confirms that Members are not obliged to use quantitative methods. This is all the
more true in the area of regulatory law. Furthermore, as explained above, calibration does not
mean that a panel can get into the question of whether or not it considers the trade -off between
the legitimate objective and the trade restriction is acceptable, the fixing of the ALOP being a
matter for the regulating Member.
15. Rather, what calibration requires (and referring to the broadly comparable observation
above) is that the Panels are satisfied that the establishment of the facts by the regulating
Member was proper, a nd that the evaluation of those facts by the regulating Member was
unbiased and objective. If this is the case, and the differences between the risk profiles and the
various elements of the measure are broadly comparable, even though the Panels might
themselves have reached a different overall conclusion if they would step into the shoes of the
regulator, the regulating Member's evaluation should nevertheless not be overturned. This is the
only way in which the concept of regulatory space can be given meaning in practice.
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ANNEX C-6
EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. CALIBRATION OF RISK TO DETERMINE EVEN -HANDEDNESS UNDER ART ICLE 2.1
OF THE TBT AGREEMENT
1. The Appellate Body has explained that an assessment of whether a technical regulation
accords "no less favourable" treatment under Article 2.1 of the TBT agreement entails a two-step
examination: (1) whether the technical regulation modifies the conditions of competition to the
detriment of imported products ; and (2) if so, whether the detrim ental impact from the measure
stems exclusively from a legitimate regulatory distinction. Japan's arguments focus on the second
step of the analysis – whether the detrimental impact stems exclusively from a legitimate
regulatory distinction.
2. The Appellate Body in the first Article 21.5 proceeding found that, " [i]n determining whether
the detrimental impact on imports stems exclusively from a legitimate regulatory distinction, a
panel must carefully scrutinize whether the technical regulation at issue is even-handed in its
design, architecture, revealing structure, operation, and application in the light of the particular
circumstances of the case." 1 Then, it examined whether the different conditions for access to a
"dolphin-safe" label were "calibrated" to the risks to dolphins arising from different fishing methods
in different areas of the ocean. 2 Japan understands that an examination of whether a measure is
calibrated to the risk is an appropriate means of assessing whether a measure is even -handed and
is therefore in accordance with Article 2.1.
3. In light of the above, when considering whether the U.S. measure complies with Article 2.1,
the Panel should examine whether the United States properly conducted a comparative analysis of
the overall levels of risk to dolphins in different fisheries and fishing methods , and whether the
treatment under the U.S. measure accorded to each of the groups compared is properly calibrated
to the levels of identified risk for that group.3
A. Comparative Analysis of Different Risks to Dolphins
4. The analysis of w hether a measure is properly calibrated to the risk s, and therefore even -
handed, must begin with an objective identification of the risk s posed to dolphins in each fisher y
and by each fishing method, followed by a comparative analysis of the relevant risk profiles. An
examination of whether a measure is properly calibrated also requires a comparison of the
different labelling conditions applied to each group vis-à-vis the risks identified in each group.
5. It is important to identify the nature and degree of the relevant risks which the measure at
issue addresses in a precise and objective manner. In this respect, Japan notes that the United
States draws a distinction between the risk profiles in the ETP large purse seine fishery, on the one
hand, and in all other fisheries, on the other . However, the frequencies of dolphin interaction and
mortality in the different areas of oceans in the "other fisheries" may not be identical. Moreover,
the evidence presented by Mexico challenging the United States' factual examinations appear to
warrant further inquiry into the accuracy of the stated differences in the risk profiles among the
different fisheries examined by the United States. To the extent that these different fisheries may
have different risk profiles, Japan believes that it is necessary to conduct a precise and objective
identification of the risks followed by a comparison of the respective risk profiles of the respective
fisheries, rather than a comparison only of the risks that exist in the ETP large purse seine fishery
with the risks that exist outside of the ETP large purse seine fishery.

1 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico), para. 7.31 (quoting Appellate
Body Report, US – Clove Cigarettes, para. 182).
2 See Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico), paras. 7.152 and 7.239.
3 See Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico), para. 7.161.
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B. Whether the Treatment Accorded to Each Group is Properly Calibrated to
the Relevant Risks Taking Into Account the Objective of the Measure
1. Whether the Different Treatment is Commensurate with the
Relevant Risk
6. Once the risk s are identified, a Member must determine whether the different treatment
accorded to each group is commensurate with the relevant risk, taki ng into account the objective
of the measure as determined by the implementing Member. For such purpose, and thus to
determine whether the measure at issue is even-handed, the Panel should examine whether the
regulatory distinctions (in the present case, the difference in conditions for tuna products' access
to dolphin-safe labels) are tailored to the different risk profiles which exist in the different fisheries
and fishing methods. Moreover, although certain discretion is granted to Members when setting
labelling conditions calibrated to different risk profiles, such labelling conditions must be designed
to ensure that access to the dolphin-safe label is accorded to the tuna and tuna products from the
fisheries that are at the same level of safety for dolphins.
7. Japan notes that the risk addressed by the United States through its measure may be
mitigated or eliminated through policies implemented by other governments. These mitigation
polices are not accounted for in the U.S. measure. For example, as the United States
acknowledges, the U.S. measure treats setting on dolphins, and the tuna product it produces,
differently from other fishing methods and the tuna product that they produce. Even
acknowledging that setting on dolphins is an inherently ha rmful fishing method, the U.S. measure
does not provide for consideration of any other measures or mechanisms that vessels or fisheries
may employ to mitigate such harm and achieve the same level of safety as other fishing methods
that are eligible for the dolphin-safe label. In Japan's view, a viable measure should focus on the
risk and its relationship to the regulatory treatments in question and should leave room for other
Members to undertake policies that achieve the goal sought by the measure in question.
2. Whether the Detrimental Treatment is Rationally Related to the
Policy Objective of the Measure
8. The question of whether the detrimental treatment can be reconciled with, or is rationally
related to, the policy pursued by the measure at issue also provides valid context for whether a
measure accords "treatment no less favourable" under Article 2.1, as it constitutes part of the
overall analysis of whether the U.S. measure is even-handed.
9. Japan does not contest that the United States has the discretion to implement measures to
pursue legitimate objectives. However, such regulatory autonomy is not unlimited and
implementation of a measure in a manner that constitutes arbitrary or unjustifiable discrimination
between the like products at issue is not permitted . To avoid situations where the grant of
regulatory autonomy is boundless , the policy objectives of the measure should be precisely
articulated so that the Panel can determine whether the different treatments under different
labeling conditio ns are rationally related to the policy objective . The Panel should also strictly
review whether the different treatments under different labeling conditions are appropriate ly
designed to pursue that policy objective.
10. The manner in which the United S tates defines and articulates its policy objective in
implementing a measure will be relevant in determining whether the chosen measure is properly
calibrated to meet these objectives in light of the risks. Further, in light of the above, it is the
implementing Member that is best positioned to present and explain to the panel that it has clearly
articulated the policy objective of a measure . In the case at hand, it is therefore the United
States, rather than Mexico, who is best placed to provide a clear articulation of its policy objective
to the Panel.
11. The dolphin-safe label only provides information on whether the product satisfies the
labeling conditions , which, in turn, reflect the policy objective of the U.S. measure . However,
Japan considers that the assessment of the accuracy of the information provided by the label is
included in the even-handedness test. The Panel should therefore ensure that a dolphin-safe label
on each product represents a uniform level of dolphin safety according to the po licy objective,
regardless of the risk profile of the fishery and fishing method, or the different labeling conditions.
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Different labeling conditions may be applied depending on the risk profiles of the fisher ies and
fishing methods, but this is so only i n such a manner as to ensure that the same threshold is
applied to each of the like products for access to the same labeling.
II. INTERPRETATION OF ARTICLES III:4 AND XX OF THE GATT 1994
12. Consistent with its views expressed in previous proceedings befor e the panels and the
Appellate Body in this case , Japan reiterates that an analysis of "no less favourable treatment"
under Article III:4 of the GATT 1994 should also involve an assessment of the legitimacy of the
measure in light of the policy objectives pursued by the measure. However, Japan will focus on
how policy objectives should be considered under Article XX herein.
13. In the present case, in relation to the Article XX chapeau, the Panel must assess whether the
U.S. measure constitutes arbitrary an d unjustifiable discrimination , focusing on "the rationale put
forward to explain [the] existence [of the discrimination]." The United States is in the best position
to articulate the policy objective underlying the discriminatory treatment and the rationale for the
discrimination. The Panel should then conduct a strict review of whether the United States has
explained the rationale behind the discrimination and the relationship between the discrimination
and the policy objective, and thus determine whethe r the discrimination contained in the U.S.
measure is aimed at achieving the regulatory objective of dolphin protection in a consistent and
even-handed manner for all like products, including both domestic and foreign products.
14. Finally, Japan notes that the "eligibility criteria" exclude tuna caught by large-scale high seas
driftnet fishing and purse seine fishing by "setting on dolphins" from being eligible for the dolphin -
safe label. The Panel should consider whether such eligibility requirement may constitute arbitrary
discrimination, as it constitutes a "single rigid and unbending requirement" that allows "little or no
flexibility in how officials made the determination []."4 In this connection, Japan notes that the
Appellate Body in US – Shrimp found that a "discrimination results not only when countries in
which same conditions prevail are differently treated, but also when the application of the measure
at issue does not allow for any inquiry into the appropriateness of the regulatory program fo r the
conditions prevailing in those exporting countries."5
15. In this respect, Japan notes the Appellate Body's finding that "[a]uthorizing an importing
Member to condition market access on exporting Members putting in place regulatory programmes
comparable in effectiveness to that of the importing Member gives sufficient latitude to the
exporting Member with respect to the programme it may adopt to achieve the level of
effectiveness required."6 Japan's view is that where the regulatory distinctions are not based on
the objective characteristics of the products themselves, but rather, on the process or production
method of the product – which may vary from country to country, industry to industry, and
product to product – an importing country is not neces sarily suited to adopt a single process or
production method for achieving the level of effectiveness required.

4 Appellate Body Report, US – Shrimp, para. 177.
5 Appellate Body Report, US – Shrimp, para. 144.
6 Appellate Body Report, US – Shrimp, para. 144.
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

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ANNEX C-7
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND
I. INTRODUCTION
1. New Zealand addresses two matters in this second compliance Pane l proceeding: first, the
role of the calibration assessment in this dispute; and second, the legal status of the Preamble to
the WTO Agreement. New Zealand’s comments reflects our systemic interest in the proper
implementation of the Agreement on Technical Barriers to Trade (TBT Agreement).
II. CALIBRATION ASSESSMENT IN THIS DISPUTE
2. Both complainants in this dispute appear to agree that the legal issue before the Panel is the
interpretation and application of the calibration assessment discussed in the A ppellate Body report
in the original proceedings. While New Zealand does not wish to comment on the facts involved in
the calibration assessment itself, New Zealand does wish to comment on the role this assessment
played in this dispute and what, if any, r ole it may play in future disputes under Article 2.1 of the
TBT Agreement.
3. The term calibration was first used in this dispute by the United States, who had argued in
the original proceedings that the original tuna measure was even-handed, and thus consistent with
Article 2.1, because it was calibrated to the risks to dolphins arising from different fishing methods
in different areas of the oceans. 1 It was then used by the Appellate Body in the original
proceedings to assess the United States' argument.
4. The Appellate Body also used this term in the first compliance proceedings, where
calibration was relevant to determining whether the regulatory distinctions drawn by the amended
tuna measure, and the resulting detrimental impact, could be explained as commensurate with the
different risks associated with tuna fishing in different oceans and using different fishing methods. 2
In other words, it again was part of the assessment of whether the amended tuna measure at
issue was applied even-handedly.
5. Therefore, the role of the calibration assessment in this dispute was as part of the test for
even-handedness under Article 2.1 of the TBT Agreement. It was not a separate test in and of
itself. As such, whether it will be appropriate to apply a calibration as sessment in order to
determine whether a measure is even -handed in another dispute will depend on the facts of that
dispute.
6. New Zealand also wishes to note that the Appellate Body did not appear to rely on the
calibration assessment in determining whet her the amended tuna measure was even -handed. It
relied on other features of the amended tuna measure that were not dependent on an assessment
of relative risks associated with different fishing methods in different areas of the oceans. 3 The
Appellate Bod y examined the even -handedness of the labelling conditions applied under the
amended tuna measure in certain scenarios that would present comparably high risks to dolphins
inside and outside the ETP purse seine fishery.
7. Therefore, the Panel may need to consider factors other than the calibration assessment in
order to resolve this dispute.
III. LEGAL STATUS OF THE PREAMBLE TO THE WTO AGREEMENT
8. The second matter on which New Zealand wishes to comment is the legal status of the
Preamble to the WTO Agreement.

1 Panel Report, US - Tuna II (Mexico), paras 7.258, 7.574, 7.559, 7.561.
2 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico), paras 7.126, 7.155, 7.160.
3 Ibid., paras. 7.254-7.266.
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

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9. At paragraph 32 of its second written submission, Mexico submits that if the means
Members use to achieve its objectives are inconsistent with the objectives of sustainable
development, then they are likewise inconsistent with their WTO obligation s. New Zealand
appreciates the importance of environmentally sustainable fisheries, not only to the Pacific but to
all oceans in the world. That is not the issue here. What New Zealand wishes to comment on is
whether the Preamble in and of itself creates legally binding obligations under the WTO Agreement
and its annexes.
10. In New Zealand's view the Preamble provides the context in which Members have agreed to
be bound by the rights and obligations set out in the articles and annexes of the WTO Agreement.
As such, the Preamble can be used as an interpretive aid to understanding those rights and
obligations. However, it does not impose legally binding rights or obligations on the parties in its
own right. Article 31 of the Vienna Convention on the Law of Treaties supports this view. Article 31
identifies the preamble as part of the context for the purpose of the interpretation of a treaty.
Similarly, WTO jurisprudence confirms the Preamble to the WTO Agreement as an aid to
interpretation. The Appellate Body in US-Shrimp considered that the Preamble "adds colour,
texture and shading" to the interpretation of the agreements annexed to the WTO Agreement.4
11. New Zealand considers there is also support for this view from the structure and language of
the WTO Ag reement Preamble. First, the term "agree" is only referenced at the end of the
Preamble. It introduces what follows in the next part – that is, the articles of the WTO Agreement,
which set out the rights and obligations agreed by the parties under the WTO Agreement. Hence,
WTO Member's rights and obligations are set out after the Preamble, not as part of it. In other
words, the Preamble can be seen as a prelude to the rights and obligations under the Agreement.
12. Second, the language reflects a hortatory approach, rather than binding commitments. The
Preamble uses language such as "recognising", "being desirous". As indicated, the term "agree" is
only used to introduce the material that follows the Preamble.
13. In New Zealand's view, the Preamble is a val uable aid to interpreting a Member's rights and
obligations set out in the provisions of the WTO Agreement and its annexes. However, it does not,
in and of itself, create legally binding obligations.

4 Appellate Body Report, US - Shrimp, para. 153.
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

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ANNEX C-8
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. THE TBT AGREEMENT ARTICLE 2.1 – THE CALIBRATION ANALYSIS
1. The Appellate Body has articulated that the relevant inquiry under Article 2.1 of the
TBT Agreement when considering if the detrimental impact stems exclusively from a legitimate
regulatory dis tinction is whether the regulatory distinction is designed and applied in an even -
handed manner, or whether it lacks even -handedness, for example because it is designed or
applied in a manner that constitutes arbitrary or unjustifiable discrimination.1
2. In the original proceedings in this dispute, the Appellate Body accepted the notion of
"calibration". The Appellate Body has clarified that this is not a separate test, but rather a part of
the assessment when considering if a measure is "even-handed".2 In this particular dispute, a
calibration analysis includes an examination of whether different conditions for access to a
"dolphin-safe" label are "calibrated" to the risks to dolphins arising from different fishing methods
in different areas of the ocean. Contrary to what Mexico argues in its First Written Submission, 3
Norway agrees with other third parties that the calibration test should not include an assessment
of accuracy of certification, reporting and/or record-keeping related to the labelling conditions.4 We
note that this was not a part of the test applied by the Appellate Body in the original proceedings
of this dispute.
II. THE BURDEN OF PROOF UNDER ARTICLE 2.1 OF THE TBT AGREEMENT
3. The burden of proof is commented on by both parties in these p roceedings in their
submissions to the Panels. While Mexico refers to the United States having the burden of proof
with regard to Article XX of the GATT 1994, Mexico appears silent on the burden of proof with
respect to Article 2.1 of the TBT Agreement. Th e United States, on the other hand, repeatedly
states that the United States has the burden of proof with respect to the matter brought by the
United States, and that Mexico has the burden of proof with respect to the matter brought by
Mexico. In addition, the United States refers to the Appellate Body's statement that "the party that
asserts a fact is responsible for providing proof thereof".5
4. Norway chooses to refrain from speculating in what the United States might imply is the
consequence of them ha ving initiated Article 21.5 proceedings in a dispute where they were
originally the respondent with regard to the burden of proof. However, we would like to point out
that, in WTO dispute settlement, the main principle for the allocation of burden of proof is that
"the burden of proof rests upon the party, whether complaining or defending, who asserts the
affirmative of a particular claim or defence ".6 Furthermore, "if that party adduces evidence
sufficient to raise a presumption that what is claimed is tru e, the burden then shifts to the other
party, who will fail unless it adduces sufficient evidence to rebut the presumption ".7 The Appellate
Body, in the first Article 21.5 proceedings of this dispute, confirmed its statement in the original
proceedings that this principle also applies to Article 2.1 of the TBT Agreement.
5. As explained by the Appellate Body:
Under Article 2.1, this means that a complainant must show that, under the technical
regulation at issue, the treatment accorded to imported products is less favourable than

1 Appellate Body Report, US – Clove Cigarettes, para. 182 and Appellate Body Report, US – COOL, para.
271.
2 Appellate Body Report, US – Tuna II (Article 21.5 - Mexico), para 7.98.
3 Mexico's First Written Submission, para. 218 ff.
4 Australia's Third Party Submission, European Union's Third Party Submission.
5 United States' Second Written Submission, para. 11 and United States' Third Written Submission, both
referring to Appellate Body Report, US – Tuna II (Mexico), para. 283.
6 Appellate Body Report, United States - Wool shirts and Blouses, p. 14.
7 Appellate Body Report, United States - Wool shirts and Blouses, p. 14.
WT/DS381/RW/USA/Add.1 • WT/DS381/RW2/Add.1

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that accorded to like domestic products or like products originating in any other country.
[...] If, however, the respondent shows that the detrimental impact on imported products
stems exclusively from a legitimate regulatory dist inction, it follows that the challenged
measure is not inconsistent with Article 2.1.8

6. The Appellate Body's use of the terms «complainant» and «respondent» must be seen in its
context. In this regard, we refer to the reiteration by the Appellate Body t hat "Article 21.5
proceedings do not occur in isolation from the original proceedings, but that both proceedings form
part of a continuum of events ".9 The continuum of event means, in Norway 's view, that who are
considered to be the complainant and the res pondent respectively with regard to the burden of
proof in relation to Article 2.1 of the TBT Agreement are the same as in the original proceedings.
In other words, this does not shift depending on who initiated Article 21.5 proceedings.
7. Hence, it is clear that in this particular dispute, it rests upon Mexico to demonstrate that the
first step of the legal standard for establishing a violation of Artic le 2.1 is fulfilled – i.e. that the
technical regulation at issue modifies the conditions of competition in the market of the regulating
Member to the detriment of the group of imported products vis-à-vis the group of domestic or
other foreign products. 10 If such detrimental impact is demonstrated, it rests upon the United
States to show that the detrimental impact on imported products stems exclusively from a
legitimate regulatory distinction.

Appellate Body Reports.
10 Appellate Body Report, US – Clove Cigarettes, para. 180.