UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
Document: Notification of an Other Appeal by Mexico under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 27 January 2012
Document codes: WT/DS381/11
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

Notification of an Other Appeal by Mexico
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 25 January 201 2, from the Delegation of Mexico, is being
circulated to Members.

Importation, Marketing and Sale of Tuna and Tuna Products () ("Panel Report"),
certain legal interpretations develope d by the Panel in this dispute, a nd the Panel's failure to make an
objective assessment of the matter as required by Article 11 of the DSU.

2. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures for Appellate Review , this Notice of
Other Appeal includes an indicative list of the para graphs of the Panel Report containing the alleged
errors, without prejudice to Mexico's ability to refe r to other paragraphs of the Panel Report in the
context of this appeal.

I. A
PPEAL OF THE PANEL'S CONCLUSION THAT THE U.S. DOLPHIN SAFE LABELLING
PROVISIONS ARE NOT INCONSISTENT WITH ARTICLE 2.1 OF THE TBT AGREEMENT AND
THE PANEL'S FAILURE TO MAKE AN OBJECTIVE ASSESSMENT OF THE MATTER BEFORE
IT AS REQUIRED BY ARTICLE 11 OF THE DSU
3. Mexico seeks review by the Appellate Body of the Panel's findings that the U.S. dolphin-safe
labeling provisions are not inconsistent with Article 2.1 of the TBT Ag reement. This conclusion is in
error and is based on erroneous findings on issues of law, related interpre tations and the Panel's
failure to make an objective assessment of the matt er before it as required by Article 11 of the DSU,
including:

(a) the Panel erred in the interpretation and application of the phrase "treatment no less
favourable" in Article 2.1 of the TBT Agreem ent by applying what Mexico's refers to
as a "denial of access to an advantage" test
1;
(b) the Panel erred in the interpretation a nd application of Article 2.1 of the
TBT Agreement by ignoring the context of this provision including the preamble to
the TBT Agreement and certain provi sions in other WTO Agreements.
2 The Panel
also erred in its findings and conclusions in respect of linking the less favourable
treatment to the foreign origin of the product and the actions of private actors;
(c) the Panel failed to make an objective assessment of the matter before it as required by
Article 11 of the DSU with respect to th e arguments and evidence put forward by
Mexico in support of its claim that Mexican tuna products are being denied
competitive opportunities by the U.S. dolphin safe labelling provisions
3; and
(d) If the Appellate Body finds that the Panel's denial of access to an advantage test is a
permissible interpretation of Article 2.1, the Panel failed to make an objective
assessment of the matter before it and thereby acted inconsistently with Article 11 of
the DSU. The Panel failed to consider a nd take into account evidence put forward by
Mexico that it was impossible for the Mexi can tuna industry to change its fishing
practices to adapt to the U.S. measures.4
As a result of the foregoing errors, Mexico requests the Appellate Body to reverse the Panel's legal
conclusion in paragraph 8.1(a) of the Panel Report.

II. APPEAL OF THE PANEL'S DECISION TO EXERCISE JUDICIAL ECONOMY WITH RESPECT TO
MEXICO'S CLAIMS UNDER ARTICLES I:1 AND III:4 OF THE GATT 1994 AND THE PANEL'S
FAILURE TO MAKE AN OBJECTIVE ASSESSMENT OF THE MATTER BEFORE IT AS
REQUIRED BY ARTICLE 11 OF THE DSU
5. Mexico seeks review by the Appellate Body of the Panel's decision to exercise judicial
economy and decline ruling on Mexico's discriminati ons claims under Articles I:1 and III:4 of the
GATT 1994. 5 Mexico addresses the following errors in th e Panel's decision to exercise judicial
economy with respect to Mexico's claims under Articles I:1 and III:4 of the GATT 1994:

(a) the Panel exercised false judicial economy by not addressing all the issues before it
that were necessary for the effective reso lution of the dispute. After finding no
violation of Article 2.1 of the TBT Agreem ent, the Panel should have continued its
analysis of the more general provisions contained in the GATT 1994; and
(b) the Panel failed to examine Mexico's claims under the GATT 1994 led to its failure to
conduct an objective assessment of the matter before it as required by Article 11 of
the DSU.
6. As a result of the foregoing errors, Mexico re quests the Appellate Body to reverse the Panel's
legal conclusion in paragraph 8.2 and Section VII of the Panel Repor t and complete the analysis of
Mexico's claims under Articles I:1 and III:4 of the GATT 1994.

1 See Panel Report, paras. 7.191-7.378, in particular, 7.269-7.284, 7.304-7.311, 7.333, 7.334, 7.345-
7.350, 7.361-7.368, 7.374-7.378.
2 See Panel Report, paras. 7.268-7.278.
3 See Panel Report, paras. 7.365-7.368 and 7.374-7.378.
4 See Panel Report, paras. 7.310, 7.323, 7.334, 7.343-7.344, 7.349.
5 See Panel Report, paras. 7.741-7.748 and 8.2.

III. APPEAL OF THE PANEL'S CONCLUSION THAT THE U.S. DOLPHIN SAFE LABELLING
PROVISIONS ARE NOT INCONSISTENT WITH ARTICLE 2.4 OF THE TBT AGREEMENT
7. Mexico seeks review by the Appellate Body of the Panel's findings that the U.S. dolphin-safe
labeling provisions are not inconsistent with Article 2.4 of the TBT Agreement.6 This conclusion is in
error and is based on erroneous findings on issues of law, related interpre tations and the Panel's
failure to make an objective assessment of the matt er before it as required by Article 11 of the DSU,
including:

(a) the Panel erred in not evaluating whether th e AIDCP standard would be effective and
appropriate in fulfilling the U.S. objectives in fisheries outside the ETP. In doing so,
the Panel failed to make an objective assessment of the matter before it as required by
Article 11 of the DSU; and
(b) the Panel applied an incorrect legal test in evaluating whether the AIDCP standard
would be effective and appropriate to fulfill the U.S. objectives.
7
8. As a result of the foregoing errors, Mexico requ ests the Appellate Body to reverse the Panel's
legal conclusion in paragraph 8.1(c) of the Panel Report.

IV. CONDITIONAL APPEAL OF THE PANEL'S FINDING THAT THE SECOND OBJECTIVE OF THE
U.S. DOLPHIN SAFE LABELLING PROVISIONS IS A LEGITIMATE OBJECTIVE WITHIN THE
MEANING OF ARTICLE 2.2 OF THE TBT AGREEMENT
9. This appeal is conditional on the Appellate Body's reversal of the Panel's finding that the U.S.
dolphin safe labeling provisions are inconsistent with Article 2.2 of the TBT Agreement.

10. Mexico seeks review by the Appellate Body of the Panel's finding that the second objective of
the U.S. dolphin safe labeling provisions is a legiti mate objective within the meaning of Article 2.2 of
the TBT Agreement.
8 The Appellate Body does not need to review this legal interpretation and
conclusion if the condition to this appeal is not met.

V. CONDITIONAL APPEAL OF THE PANEL'S ERRORS IN THE LEGAL ANALYSIS ON WHETHER
THE U.S. DOLPHIN SAFE LABELLING PROVISIONS ARE "MORE TRADE RESTRICTIVE
THAN NECESSARY TO FULFILL THE LEGITIMATE OBJECTIVE"
11. This appeal is conditional on the Appellate Body 's reversal of the Panel's finding that the U.S.
dolphin safe labeling provisions are inconsistent with Article 2.2 of the TBT Agreement and the
rejection of Mexico's conditional appeal that the second objective of the U.S. dolphin-safe provisions
is not a legitimate objective.

12. Mexico seeks review by the Appellate Body of the Panel's legal errors in its analysis on
whether the U.S. dolphin safe labelling provisions are more trade restrictive than necessary to fulfill
the legitimate objective.
9 In particular, the Panel erred in c ontinuing its analysis under Article 2.2 of
the TBT Agreement after it had concluded that the U.S. measures fulfill their objectives "only
partially".10 The Appellate Body does not need to review these errors if the condition to this appeal is
not met.