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 NOTIFICATION OF AN 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 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: MARKETING AND SALE OF TUNA AND TUNA PRODUCTS SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO NOTIFICATION OF AN 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 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 6 December 2017
Document codes: WT/DS381/45
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
NOTIFICATION OF AN 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 20(1)
OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following notification, dated 1 December 2017 , from the delegation of Mexico, is being
circulated to Members.

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).
2. Mexico is restricting its appeal to those errors that it believes constitute serious errors of law
and legal interpretation that need to be corrected. Where Mexico has not appealed an issue
relating to the findings or the reasoning of the Panels, this does not signify agreement therewith or
constitute any admission on the part of Mexico.
3. Pursuant to Rule 21(1) and 21(2) of the Working Procedures, Mexico is simultaneously filing
this Notice of Appeal and its Appellant's Submission with the Appellate Body Secretariat.
4. The measure at issue in this dispute concerns the amended tuna measure, which comp rises
the following elements (referred to collectively as the "2016 tuna measure "): (i) Section 1385
("Dolphin Protection Consumer Information Act ") (DPCIA), as contained in Subchapter II
("Conservation and Protection of Marine Mammals ") of Chapter 31 ( "Marine Mammal Protection"),
in Title 16 of the U.S. Code; (ii) U.S. Code of Federal Regulations, Title 50, Part 216, Subpart H
("Dolphin Safe Tuna Labeling "), as amended in March 2016; and (iii) the court ruling in
Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).
5. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of
Appeal includes an indicative list of the paragraphs of the Panel Reports containing the alleged

errors, without prejudice to Mexico's ability to refer to other paragraphs of the Panel Report in the
context of this appeal.
I. The Panels Erred in their Interpretation of the Applicable Legal Analysis in the
Second Step of the Assessment of "Treatment No Less Favourable " under
Article 2.1 of the TBT Agreement
6. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the findings and conclusions of the Panels with respect to the interpretation and application of the
legal analysis in the second step of the assessment of whether th e 2016 tuna measure accords
"treatment no less favourable " to Mexican tuna products within the meaning of Article 2.1 of the
Agreement on Technical Barriers to Trade (TBT Agreement).
7. In determining whether the detrimental impact caused by the 2016 tuna mea sure stems
exclusively from a legitimate regulatory distinction, the Panels made errors in interpreting and
applying the analytical methodology for assessing whether the regulatory distinctions giving rise to
the detrimental impact are designed and applied in an even -handed manner. In particular, the
Panels erred in: interpreting how the objectives pursued by the 2016 tuna measure are taken into
account in the assessment of whether the relevant regulatory distinctions are "calibrated" to the
overall relative risks to dolphins arising from different tuna fishing methods in different areas of
the oceans, and failing to include an inquiry into the nexus between the relevant regulatory
distinctions and the objectives of the measure, includ ing consideration of whether the differences
in regulatory treatment, and the resulting detrimental impact, are disproportionate in the light of
the objectives pursued; and in determining and comparatively analyzing the risk profile of the
AIDCP-compliant dolphin encirclement fishing method in the ETP and risk profiles of the other
fishing methods for the purposes of the "calibration" test.
8. The Panels' errors are based on erroneous findings on issues of law and legal interpretation,
including the following:
a. The findings and conclusions of the Panels with respect to the relevance and the
consideration of the risks to dolphins associated with inaccurate labelling information,
including in relation to the absence of sufficient regulatory oversight, the reliabil ity of
reporting, the existence of illegal, unreported and unregulated ( IUU) fishing, and the
existence of transshipment and catch consolidation at sea in different areas of the
oceans. In particular, the Panels erred in finding that the risks to dolphins associated
with inaccurate dolphin -safe labelling are not relevant to the determination and
comparative analysis of the risk profiles of the different fishing methods in different
areas of the oceans.1
b. The findings and conclusions of the Panels in determin ing and comparatively analyzing
the respective risk profiles (i.e., the overall relative risks or levels of harm to dolphins) of
different fishing methods in different areas of the oceans. In particular, the Panels erred
in drawing conclusions on risk prof iles relating to different fishing methods rather than
risk profiles relating to different fisheries (i.e., different fishing methods in different
areas of the oceans).2
c. The findings and conclusions of the Panels relating to the standards and benchmarks
used for determining and comparing the respective risk profiles. In particular, the Panels
erred in primarily using a "per 1,000 set " standard to determine and compare risk
profiles, rejecting the use of "Potential Biological Removal" (PBR) data or absolute levels
of adverse effects to supplement the analysis, using a qualitative description of the
characteristics of the AIDCP -compliant dolphin encirclement method for the purposes of
determining its risk profile, and using the risk profile of the AIDCP -compliant dolphin
encirclement fishing method in the ETP as the benchmark for the comparative analysis of

1 The Panels’ errors in law are contained, inter alia, in paragraphs 7.102, 7.104-7.105, 7.107-7.127
2 The Panels’ errors in law are contained, inter alia, in paragraphs 7.169-7.170, 7.283-7.285, 7.310,
7.400-7.402, 7.450, 7.457, 7.475, 7.481, 7.494, 7.511, 7.517-7.525, 7.539, 7.541-7.542, 7.571.

all risk profiles and the assessment of whether the tuna measure is "calibrated" to the
different risk profiles.3
II. The Panels Erred in their Findings whe n Assessing whether the Relevant
Regulatory Distinctions in the Labelling Conditions of the 2016 Tuna Measure are
Consistent with Article 2.1 of the TBT Agreement on the Basis that they are
"Calibrated" to the Different Risk Profiles
9. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the findings and conclusions of the Panels that the 2016 tuna mea sure is consistent with
Article 2.1 of the TBT Agreement on the basis that the relevant regulatory distinctions in the
labelling conditions are "calibrated" to the different risk profiles. The Panels ' findings and
conclusions are in error and based on incorrect findings of law and legal interpretations, including
the following:
a. The findings and conclusion of the Panels with re spect to the eligibility criteria in
assessing the consistency of the 2016 tuna measure with Article 2.1 of the
TBT Agreement. In particular, the Panels erred in finding that the eligibility criteria are
"calibrated" to the overall relative risks to dolphins arising from different fishing methods
in different ocean areas.4
b. The findings and conclusion of the Panels with respect to the certification criteria in
assessing the consistency of the 2016 tuna meas ure with Article 2.1 of the
TBT Agreement. In particular, the Panels erred in finding that the certification criteria are
"calibrated" to the overall relative risks to dolphins arising from different fishing methods
in different ocean areas.5
c. The findings and conclusion of the Panels with respect to the tr acking and verification
criteria in assessing the consistency of the 2016 tuna meas ure with Article 2.1 of the
TBT Agreement. In particular, the Panels erred in finding that the certification criteria are
"calibrated" to the overall relative risks to dolphins arising from different fishing methods
in different ocean areas.6 Mexico also requests the Appellate Body to find that the Panels
failed to make an objective assessment of the facts, as required by Article 11 of the
DSU, with respect to their findings and conclusion regarding the tracking and verification
criteria. In particular, the Panels erred in expressly refusing to give any consideration to
evidence adduced by Mexico that was directly relevant and material to the outcome of
the legal analysis.7
d. The findings and conclusions of the Panels with respect to the "overall assessment of the
consistency of the 2016 tuna measure with Article 2.1 of the TBT Agreement ". In
particular, the Panels erred in finding that the 2016 tuna measure, as a whole, is
"calibrated" to the risks to dolphins arising from the use of different fishing methods in
different areas of the ocean.8
III. The Panels Erred in their Findings when Assessing whether the 2016 Tuna Measure
is Consistent with the Chapeau of Article XX of the GATT 1994
10. Mexico also seeks review by the Appellate Body of, and requests the Appellate Body to
reverse, the findings and conclusions of the Panels that the 2016 tuna measure, although
inconsistent with Articles I:1 and III:4 of the GATT 1994, is exempt from those obligations on the
basis that it is justified under Article XX of the GATT 1994. This conclusion is an error and is based
on erroneous findings on issues on law and legal interpretation. 9 Mexico requests that the

3 The Panels’ errors in law are contained, inter alia, in paragraphs 7.169-7.170, 7.185-7.186, 7.188-
7.192, 7.195, 7.204-7.206, 7.211-7.214, 7.279-7.280, 7.281, 7.285, 7.329, 7.339, 7.345, 7.336, 7.373-
7.374, 7.384-7.385, 7.89-7.90, 7.397-7.398, 7.419-7.420, 7.469-7.471, 7.473-7.475, 7.518-7.524.
4 The Panels’ errors in law are contained, inter alia, in paragraphs 7.539-7.547.
5 The Panels’ errors in law are contained, inter alia, in paragraphs 7.571-7.573, 7.600-7.611.
6 The Panels’ errors in law are contained, inter alia, in paragraphs 7.650, 7.652, 7.671-7.676.
7 The Panels’ errors in law are contained, inter alia, in paragraphs 6.57 and 7.656.
8 The Panels’ errors in law are contained, inter alia, in paragraphs 7.703-7.717, 8.2, 8.6.
9 The Panels’ errors in law are contained, inter alia, in paragraphs 7.739-7.740, 8.3, 8.7.

Appellate Body modify the reasonin g of the Panel and find that the 2016 tuna measure is applied
in manner that constitutes arbitrary and unjustifiable discrimination between countries where the
same conditions prevail.
IV. The Panels Erred in their Finding that they had the Authority to Co nduct a Partially
Open Meeting
11. Mexico also seeks review by the Appellate Body of, and requests the Appellate Body to
reverse, the findings and conclusion of the Panels that they had the authority to conduct a partially
open meeting of the parties without the consent of both Parties.
12. Pursuant to Rule 20(2)(c) of the Working Procedures for Appellate Review , the service
address, telephone and facsimile numbers for Mexico are:
 The Permanent Mission of Mexico to the WTO
 Chemin Louis Dunant 15,
 CH-1202 Geneva
 Switzerland
 Telephone number: + 41 22 748 0762, + 41 22 748 0739, + 41 22 748 0748
 Facsimile number: + 41 22 748 0749

13. Mexico is providing a copy of this Notice of Appeal directly to the United States and to the
third participants.