UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
Document: Report of the Appellate Body
Date: 16 May 2012
Document codes: WT/DS381/AB/R
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

AB-2012-2

Report of the Appellate Body

APPELLATE BODY

United States, Appellant, Appellee
Mexico, Other Appellant, Appellee

Argentina, Third Participant
Australia, Third Participant
Brazil, Third Participant
Bolivarian Republic of Venezuela, Third Participant
Canada, Third Participant
China, Third Participant
Ecuador, Third Participant
European Union, Third Participant
Guatemala, Third Participant
Japan, Third Participant
Korea, Third Participant
New Zealand, Third Participant
Separate Customs Territory of Taiwan, Penghu,
 Kinmen and Matsu, Third Participant
Thailand, Third Participant
Turkey, Third Participant

 AB-2012-2

 Present:

 Zhang, Presiding Member
 Bhatia, Member
 Graham, Member

I. Introduction
1. The United States and Mexico each appeals certain issues of law and legal interpretations
developed in the Panel Report, (the "Panel Report").
1 The Panel was established to consider a
complaint by Mexico2 regarding the consistency of certain measures imposed by the United States on
the importation, marketing, and sale of tuna and tuna products with the General Agreement on Tariffs
and Trade 1994 (the "GATT 1994") and the Agreement on Technical Barriers to Trade (the
"TBT Agreement").
2. Before the Panel, Mexico challenged the United States Code , Title 16, Section 1385 (the
"Dolphin Protection Consumer Info rmation Act" or "DPCIA"), the United States Code of Federal
Regulations, Title 50, Section 216.91 and Section 216.92 (the "implementing regulations"), and a

1WT/DS381/R, 15 September 2011.
2Request for the Establishment of a Panel by Mexico, WT/DS381/4.

ruling by a US federal appeals court in Earth Island Institute v. Hogarth
3 (the "Hogarth ruling") as
inconsistent with the United States ' obligations under Article 2 of the TBT Agreement and Articles I
and III of the GATT 1994. The Panel reasoned that th e legal instruments identified by Mexico in its
panel request "set out the terms of the US ' dolphin-safe' labelling scheme" and considered it
appropriate therefore to treat them as a single measure for purposes of its analysis of Mexico's claims
and its findings. 4 The Panel thereafter referred to the m easure at issue in this dispute as "the
US dolphin-safe labelling provisions".5
3. Having found that the US "dolphin-safe" la belling provisions constitute a "technical
regulation" within the meaning of Annex 1.1 to the TBT Agreement, the Panel proceeded to examine
the substantive claims brought by Mexico under the TBT Agreement. With respect to Mexico's claim
that the measure is inconsistent with Article 2.1, the Panel found that Mexico had failed to establish
that the measure affords tr eatment less favourable to Mexican tuna products than to US tuna products
and tuna products originating in other countries a nd concluded, therefore, that the measure is not
inconsistent with the United Stat es' obligations under that provision. 6 Next, the Panel found that the
measure is more trade restrictiv e than necessary to fulfil its legitimate objectives, taking account of
the risks non-fulfilment would create. Therefore, th e Panel found that the measure is inconsistent
with Article 2.2 of the TBT Agreement.7 With respect to Mexico's claim under Article 2.4 of the
TBT Agreement, the Panel found that the Agreement on the International Dolphin Conservation
Program8 (the "AIDCP") is a relevant international sta ndard, but that Mexico had failed to prove that
it is an effective and appropriate means to fulfil the United States' objectives at its chosen level of
protection.9 The Panel decided to exercise judicial ec onomy with respect to Mexico's claims under
Articles I:1 and III:4 of the GATT 1994.10
4. In a communication dated 31 October 2011, Mexico and the United States jointly requested
the Dispute Settlement Body (the "DSB") to agree to an extension of the 60-day period provided for
in Article 16.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes

3United States Court of Appeals for the Ninth Circuit, Earth Island Institute v. Hogarth , 494 F.3d 757
(9th Cir. 2007) (Panel Exhibit MEX-31).
4Panel Report, para. 7.24.
5Panel Report, para. 7.26.
6Panel Report, paras. 7.374 and 8.1(a).
7Panel Report, paras. 7.620 and 8.1(b).
8Panel Exhibits US-23a and MEX-11.
9Panel Report, paras. 7.740 and 8.1(c).
10Panel Report, para. 7.748.

(the "DSU") for the adoption or appeal of the Panel Report until 20 January 2012.11 At a meeting held
on 11 November 2011, the DSB agreed that, upon a request by Mexico or the United States, it would
adopt the Panel Report no later than 20 January 2 012, unless the DSB decided by consensus not to do
so, or either party to the dispute notified the DSB of its decision to appeal.12
5. On 20 January 2012, the United States notified the DSB of its intention to appeal certain
issues of law and certain legal inte rpretations developed by the Pane l, pursuant to Article 16 of the
DSU, and filed a Notice of Appeal and an appe llant's submission pursuant to Rules 20 and 21,
respectively, of the Working Procedures for Appellate Review (the " Working Procedures"). On the
same day, the Appellate Body Division hearing this appeal received a request from the United States
to hold the oral hearing in this appeal during the week of 19 February 2012 on the ground that a senior
member of the US legal team would be unable to tr avel to Geneva after that time period for medical
reasons relating to her pregnancy. In the alternative, the United States proposed, by letter dated
26 January 2012, that the oral hearing be held in the week of 26 March 2012 to provide additional
preparation time for the Appellate Body and the pa rticipants. On 3 February 2012, having carefully
considered the United States' request and th e comments received from Mexico and the third
participants in this dispute, and having also cons idered the size and complexity of this appeal, the
Division ruled that the oral hearing would be held on 15-16 March 2012.
6. On 25 January 2012, Mexico notified the DSB of its intention to appeal certain issues of law
and certain legal interpretations developed by the Panel, pursuant to Articles 16.4 and 17 of the DSU,
and filed a Notice of Other Appeal
13 and an other appellant's submission, pursuant to Rules 23(1)
and 23(3), respectively, of the Working Procedures . On 7 February 2012, Mexico and the
United States each filed an appellee's submission.14
7. On 10 February 2012, Australia, Brazil, Canada, the European Union, Japan, and
New Zealand each filed a third participant's submission. 15 On the same day, Argentina, China,
Ecuador, Guatemala, and Korea each notified its inte ntion to appear at the oral hearing as a third
participant, pursuant to Rule 24(2) of the Working Procedures, and Turkey notified that it would not
be filing a third participant's submission. On 7 Ma rch and 12 March 2012, respectively, the Separate

11WT/DS381/9. The joint request was made in view of the "current workload of the Appellate Body"
and in order to "provide greater flexibility in scheduling any possible appeal".
12WT/DSB/M/306.
13WT/DS381/11 (attached as Annex II to this Report).
14Pursuant to Rule 22 of the Working Procedures.
15Pursuant to Rule 24(1) of the Working Procedures.

Customs Territory of Taiwan, Penghu, Kinmen and Matsu and Thailand each notified the Secretariat
of its intention to appear at the oral hearing as third participants.
16
8. On 2, 3, and 17 February 2012, the Appellate Body received unsolicited amicus curiae briefs
from, respectively, the Humane Society of the United States/Humane Society International and
Washington College of Law (WCL), ASTM Internati onal (formerly the American Society for Testing
and Materials), and Professor Robert Howse. The pa rticipants and the third participants were given
an opportunity to express their views on these briefs at the oral hearing. The Division hearing this
appeal did not find it necessary to rely on these amicus curiae briefs in rendering its decision.
9. The oral hearing in this appeal was held on 15-16 March 2012. The participants and nine of
the third participants—Argentina, Brazil, Canada , China, Ecuador, Guatemala, Japan, Korea, and
Thailand—made oral statements. Th e participants and third participants responded to questions posed
by the Members of the Appellate Body Division hearing the appeal.
10. On 20 March 2012, the Chair of the Appellate Body informed the Chair of the DSB that, due
to the size of this appeal, including the complexity of the issues raised by the participants, along with
the large caseload that the Appellate Body w as facing and the scheduling constraints resulting
therefrom, it was expected that the Appellate Body Report in this appeal would be circulated to
WTO Members no later than 16 May 2012.17
II. Arguments of the Participants and the Third Participants
A. Claims of Error by the United States – Appellant
1. Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
11. The United States requests the Appellate Body to reverse the Panel's finding that the measure
at issue is a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement . The
United States asserts that such reversal would also dispose of Mexico's claims under Article 2 of the
TBT Agreement. Therefore, the United States further requests the Appellate Body to declare moot and
of no legal effect the Panel's findings with respect to Article 2 of the TBT Agreement.

16On 7 March 2012, Thailand submitted its delegation list for the oral hearing to the Appellate Body
Secretariat and the participants and th ird participants in this dispute. On 12 March 2012, the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu submitted its delegation list. For the purpose of this appeal,
we have interpreted these actions as notifications expressing their intention to attend the oral hearing pursuant to
Rule 24(4) of the Working Procedures.
17This letter was circulated as document WT/DS381/12.

12. The United States alleges that the Panel erred in finding that the measure at issue is a
"technical regulation", because compliance with the measure is not "mandatory" within the meaning
of Annex 1.1 to the TBT Agreement. The United States maintains that the Panel's interpretation of the
word "mandatory" is indistinguishable from the term "requirement". 18 However, because the word
"requirement" is used in both the definition of "technical regulation" in Annex 1.1 and in the
definition of "standard" in Annex 1. 2, a finding that compliance with certain labelling requirements is
"mandatory" within the meaning of Annex 1.1 must be based on considerations other than the fact that
a document establishes criteria for the use of a certain label. 19 The United States submits that
compliance with a labelling requirement is "mandatory " within the meaning of Annex 1.1 if there is a
requirement to use a particular label in order to place a product for sale on the market. 20 By contrast,
compliance with a labelling requirement is not manda tory in situations wh ere producers retain the
option of not using the label. For the United Stat es, this interpretation "respects the definition" of
both a labelling requirement that is a "technical re gulation" under Annex 1.1 and the definition of a
labelling requirement that is a "standard" under Annex 1.2.21
13. The United States also alleges that the Panel in correctly applied prior Appellate Body reports
interpreting the phrase "with which compliance is mandatory". In particular, the Panel's interpretation
of "mandatory" fails to give effect to the Appellate Body's statement in EC – Asbestos that
"mandatory compliance" is characterized by being "binding" or "compulsory". 22 The United States
takes issue with the Panel's statement that it must consider "not only whether the document lays down
certain conditions for the use of a label, or prescribes a certain content for a given label", but must
also consider "whether the document at issue regulates in a binding fashion these conditions or
content".23 For the United States, the condition of "regulating in a binding fashion" is redundant,
because it is not clear how a document could "lay down" or "prescribe" conditions for use of a label or
certain content for a label if that "laying down" or "prescription" was not "binding".
14. The United States further alleges that the Pane l incorrectly applied the Appellate Body's
distinction between "positive" and "negative" prescrip tions in documents. The United States refers to
the Appellate Body's statement in EC – Asbestos that a document may provide, positively, that
products must possess certain characteristics, or a document may require, negatively, that products

18United States' appellant's submission, heading III.B.1.
19United States' appellant's submission, para. 30 (quoting Panel Report, para. 7.117, and referring to
para. 7.151).
22United States' appellant's submission, para. 39 (quoting Appellate Body Report, EC – Asbestos ,
para. 68).
23United States' appellant's submission, para. 39 (quoting Panel Report, para. 7.117). (emphasis added
by the United States)

must not possess certain characteristics. In the United States' view, this distinction is a device to help
explain that there is more than one way to set out product characteristics in a measure. However, it is
not a useful tool for distinguishing a technical regulation from a standard, because both types of
measures may set forth product characteristics. The United States contends th at the Panel erred in
finding that the measure at issue was a "negative" requirement because it "impose[s] a prohibition on
the offering for sale in the United States of tuna pr oducts bearing a label referring to dolphins and not
meeting the requirements that they set out".
24 The United States submits that standards, like technical
regulations, may "reserve access to a label to products that comply with that standard's requirements"
and, where "a standard is a measure of a Member, th at standard will naturally not permit products that
do not meet that standard to claim they do".25
15. Furthermore, the United States argues that en forceability, as such, does not distinguish
technical regulations from standards, and points ou t that labelling requirements may be subject to
enforcement regardless of whether they are set fo rth in a standard or in a technical regulation. 26 In
addition, the United States submits that the Panel erred in relying on specific enforcement possibilities
in relation to the measure at issue in order to dis tinguish it from a standard. First, with respect to
enforcement in the sense of restricting the use of the label to those products that meet the
requirements for the use of the label, the United States contends that this alone does not "make
compliance with a labelling requirement 'mandatory'" , because denying access to a label for failure to
meet the conditions required to use the label is inherent in the term "labelling requirement".27 Second,
the United States refers to two "specific enforcemen t measures" considered by the Panel, namely, a
law against deceptive practices and a fine to be levi ed against ship captains for falsely certifying that
dolphins were not set upon. With respect to the law against deceptive practices, the United States
maintains that, even "if it is accepted that a sp ecific enforcement measure can make a labeling
requirement mandatory, it would s till have to be a measure that go es beyond a general prohibition on
using deceptive labels".28 Moreover, a "fine to be levied against ship captains" does not apply to false
use of a "dolphin-safe" label, but rather is a pena lty for false certification by captains and observers
aboard tuna-fishing vessels.29
16. In addition, the United States submits that the Panel's interpretation "was largely based on its
reading of the Appellate Body report in EC – Sardines".30 According to the United States, the Panel's

24United States' appellant's submission, para. 45 (quoting Panel Report, para. 7.131). (emphasis added
by the United States omitted)
30United States' appellant's submission, footnote 92 to para. 61.

reliance on that Appellate Body report is incorrect for two reasons. First, in that dispute, neither the
panel nor the Appellate Body considered whethe r compliance with the document at issue was
mandatory. Second, EC – Sardines involved a requirement that products marketed as "preserved
sardines" be prepared exclus ively from fish of the species Sardina pilchardus . The United States
maintains that, unlike the EC regulation at issue in that dispute, the measure in the present case does
not specify the product characteristics that tuna pr oducts must meet to be sold on the US market.
Rather, tuna products can be marketed in the Unite d States as tuna products either with or without a
"dolphin-safe" label.31
17. Finally, the United States argues that the Pane l erred in finding that a standard becomes a
technical regulation if it is "the only standard" available to address an issue. 32 The United States
argues that "[n]othing in Annex 1.1 provides that a technical regulation must be exclusive, and
nothing in Annex 1.2 provides that a standard cannot be exclusive."33 The United States contends that
the only basis the Panel suggests for its view that there must be various competing standards are in
definitions contained in the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning
Standardization and Related Activities 34 (the "ISO/IEC Guide 2: 1991"). The United States submits
that it appears that the Panel drew upon the defin ition of the term "mandatory standard" in the
ISO/IEC Guide 2: 1991 and argues that this defin ition is "irrelevant" because the term "mandatory
standard" does not appear in the TBT Agreement.35 The United States further asserts that, if "a
labelling requirement sets out multiple similar labels to choose from, but an operator must still use
one in order to market its product, then the opera tor still faces mandatory comp liance with respect to
that labelling requirement". 36 By contrast, "if the operator has the option of not using any of the
labels, then it does not face a mandatory compliance obligation".37
18. According to the United States, the Panel found th at the measure at issue is "the only standard
available"38 because the measure prohibits labels that make deceptive claims about "dolphin-safety"
and also prohibits deceptive labels using similar terms, such as "marine mammal" and "porpoise". 39
The United States contends that this contradicts the Panel's earlier finding that standards may be

31United States' appellant's submission, footnote 92 to para. 61.
32United States' appellant's submission, para. 65 (referring to Panel Report, paras. 7.143 and 7.144).
34International Organization for Standardization (ISO) / International Electrotechnical Commission
(IEC) Guide 2, General Terms and Their Definitions Co ncerning Standardization and Related Activities, sixth
edition (1991).
35United States' appellant's submission, footnote 97 to para. 66.
38United States' appellant's submission, para. 68 (quoting Panel Report, para. 7.144). (emphasis omitted
by the United States)

protected against "abusive or misleading use under general law".
40 According to the United States, it
is not clear why a standard may be protected agai nst deceptive use of the label when using the term
"dolphin", but not when using similar or overlappi ng terms, such as "marine mammal" or "porpoise".
The United States alleges that the Panel erred in introducing a caveat that "standards must allow
similar labels to be used, even if the similar labe l does not meet the standard's requirements, and even
if potentially deceptive."41 In addition, the United States maintains that the Panel may have made its
conclusion on the basis of factual errors and refers to a Panel statement that the prohibition applies to
claims about marine mammal and porpoise saf ety "whether misleading or otherwise". 42 T h e
United States maintains that, if this statement refl ects the belief that references to "marine mammal"
and "porpoise" are prohibited even if the labelling re quirements are met, this is factually incorrect,
because, pursuant to the measure at issue, if the conditions for using a "marine mammal-safe" label
are met, such a label can be used. In any event, submits the United States, even if the Panel had made
correct legal and factual findings with regard to the measure's prohibition of deceptive labels, it failed
to explain the reasons for drawing a distinction between a measure providing for a single standard that
need not be used and a measure providing for multip le standards that need not be used. For the
United States, "[s]uch a distinction is without logic".43
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement
19. The United States requests the Appellate Body to reverse the Panel's finding that the
US "dolphin-safe" labelli ng provisions are more trade restri ctive than necessary to fulfil their
legitimate objectives and are therefore in consistent with Article 2.2 of the TBT Agreement . The
United States alleges that the Panel erred in finding that the measure at issue is more trade restrictive
than necessary to fulfil its legitimate objectives. The United States also challenges several
intermediate findings and conclusi ons by the Panel and alleges that the Panel failed to make an
objective assessment of the matter before it as required under Article 11 of the DSU.
20. The United States alleges that the Panel erre d in finding that the coexistence of the
US "dolphin-safe" label and the AIDCP label would provide a reasonably available, less
trade-restrictive alternative means of achieving the objectives pursued by the United States at the level
chosen by the United States. In particular, with respect to the objective of ensuring that consumers
are not misled or deceived about whether tuna produ cts contain tuna that was caught in a manner that
adversely affects dolphins, the United States takes issu e with the Panel's finding that "the extent to
which consumers would be misled as to the implica tions of the manner in which the tuna was caught

42United States' appellant's submission, footnote 102 to para. 68 (quoting Panel Report, para. 7.143).

would not be greater if the AIDCP label were allowed to co-exist with the US dolphin-safe provisions,
than it currently is under the existing measures." 44 With respect to the objective of 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 United States disagrees with the Panel's finding
that "allowing compliance with the AIDCP labelling requirements to be advertised on the US market
would discourage observed dolphin mortality resulting from setting on dolphins to the same extent as
the existing US dolphin-safe provisions do and would involve no reduction in the level of protection
in this respect."45
21. The United States alleges that both of these conclu sions of the Panel are in error for several
reasons. First, allowing the AIDCP label to coex ist with the US "dolphin-safe" label would not
address risks to dolphins outside the Eastern Tropical Pacific Ocean (the "ETP"), since by its terms
the former label only applies to tuna caught inside the ETP. In addition, the AIDCP label allows the
practice of setting on dolphins to catch tuna, wh ich is harmful to dolphins, and would therefore
frustrate the dolphin protection objective. Second, the measure at issue already requires that tuna
bearing the US "dolphin-safe" label adhere to the AIDCP requirements if that tuna was caught in the
ETP and, in addition to these requirements, it also requires that tuna from the ETP was not caught by
setting on dolphins. Therefore, the AIDCP label coul d not add any further information to consumers.
Rather, it would give the impression that tuna caught in the ETP was not caught in a manner that
adversely affects dolphins, when in reality it was ca ught by setting on dolphins. Third, coexistence of
the two labels would be confusing for consumers because the two labels are identical, except for the
term "AIDCP" or "US Department of Commerce" written on them. Moreover, consumers would have
difficulty appreciating the difference between the info rmation conveyed by each label so as to make
an informed decision about the tuna they buy. Fi nally, the Panel "implies" that the United States is
required to fulfil its objective to the same level in side and outside the ETP, regardless of the costs.
46
The United States submits that an approach that weighs costs and benefits is consistent with
"well-established approaches to policymaking" and with the TBT Agreement.47 For the United States,
the measure reflects the fact that the lower likelihood that a dolphin may be killed or seriously injured
in a fishery outside the ETP must be balanced ag ainst the additional burden imposed by conditioning
the use of a "dolphin-safe" label on a certification based on an independent observer's statement.
22. The United States alleges that in determining that the measure at issue only partially fulfils its
objectives the Panel failed to make an objective assessment of the matter before it as required

pursuant to Article 11 of the DSU. The United St ates alleges that this finding is based on two
erroneous factual findings by the Panel. First, th e Panel's finding that "the risks to dolphins outside
the ETP from other fishing techniques are not lower th an similar risks faced by dolphins in the ETP".
Second, the Panel's finding that it was not persua ded that "at least some of the dolphin populations
affected by fishing techniques other than setting on dol phins are not facing risks at least equivalent to
those currently faced by dolphin popula tions in the ETP under AIDCP monitoring".
48 The
United States alleges that these findings are not b ased on an objective assessment of the facts and that
the Panel therefore acted inconsistently with Ar ticle 11 of the DSU. The United States raises
six allegations of error in this respect.
23. First, the United States argues that "[t]he Pane l's conclusion that the risk to dolphins from
other fishing techniques is not lower than the ri sk from setting on dolphins" contradicts the Panel's
finding that "certain fishing techniques seem to po se greater risks to dolphins than others" and that
"setting on dolphins may result in a substantial amount of dolphin mortalities and serious injuries". 49
This contradiction itself, submits the United States, constitutes a violation of Article 11 of the DSU.
24. Second, the United States asserts that the Panel found that "harm to dolphins resulting from
setting on [dolphins] is equivalent to th at resulting from other fishing methods". 50 T h i s f i n d i n g i s
inconsistent with the evidence before the Panel sugg esting that setting on dolphins to catch tuna poses
greater risks to dolphins than other fishing techniques. In particular, the United States points to its
arguments before the Panel that there is a regular and significant tuna-dolphin association in the ETP
but not in other oceans, that dolphin populations in the ETP are depleted with abundance levels at less
than 30 per cent of the levels they were at before the practice of setting on dolphins began, and that
"[o]utside the ETP, dolphin populations have not been depleted on account of their exploitation to
catch tuna and do not remain depleted on account of any such exploitation."
51 The United States
argues that there was no evidence before the Pa nel suggesting that the tuna-dolphin association
outside the ETP is similar to that within the ETP, a nd alleges that the Panel failed to address evidence
to the effect that the levels of the tuna-dolphin association in the ETP are unique, as well as evidence
relating to the fishing methods used to catch tuna based on exploiting that association, and "what that
means in terms of risks to dolphins".52

48United States' appellant's submission, para. 93 (quoting Panel Report, paras. 7.562 and 7.617).
50United States' appellant's submission, para. 96 (referring to United States' second written submission
to the Panel, paras. 42-44).
51United States' appellant's submission, para. 96 (quoting United States' second written submission to
the Panel, para. 43).
52United States' appellant's submission, para. 99 (ref erring to United States' first written submission to
the Panel, paras. 52-59, and 62).

25. Third, the United States alleges that the Panel erred in finding, on the one hand, that the
quantity and the quality of the evidence of the risk s faced by dolphin populations outside the ETP is
less comprehensive than that of the evidence about dolphin mortality resulting from tuna fishing
within the ETP, and in finding, on the other hand, that "significant dolphin mortality also arises
outside the ETP from the use of other techniques than setting on dolphins". 53 In the United States'
view, the Panel "leaps" from what it acknowledges to be minimal ev idence that there may be some
harm to dolphins outside the ETP to concluding that "significant dolphin mortality" occurs. 54 Thus,
the United States submits that the Panel merely assumed that dolphin mortality stemming from tuna
fishing existed outside the ETP.
26. Fourth, the United States alleges that evidence c ited by the Panel regarding harm to dolphins
caused by tuna fishing outside the ETP does not support the Panel's finding of significant dolphin
mortality outside the ETP. When examining the ha rm to dolphins from tuna -fishing techniques other
than setting on dolphins outside the ETP, the Panel erroneously relied on evidence referring to fishing
in general, and not particularly to tuna fishing. The United States asserts that "[s]ources that refer to
harms to dolphins from fishing operations other than tuna fishing operations cannot be relied upon to
support [the Panel's] conclusion."
55 Furthermore, many of the sources on which the Panel relies as
evincing harm to dolphins outside the ETP refer to tuna caught by driftnet fishing. Yet, the
US measure disallows labelling tuna products as "dol phin-safe" when the tuna is caught using this
fishing technique on the high seas. The possibility th at dolphins may be harmed in driftnet fishing
does not support the conclusion that there is signi ficant harm to dolphins outside the ETP that is
unaddressed by the measure at issue. If the Panel' s references to non-tuna fisheries and driftnet
fisheries are removed, the "paucity of evidence" stands in contrast to the substantial evidence
submitted by the United States regarding the "unique characteristics of the ETP". 56 Furthermore, the
United States alleges that the Panel erred in, on the one hand, dismissing the value of evidence
suggesting that dolphin bycatch in the Western Central Pacific Ocean ("WCPO") is significantly
lower than in the ETP on the basis th at the authors of the relevant study stated that more detailed
analysis would be required and, on the other hand, basing its conclusion that harm to dolphins outside
the ETP is significant and greater than in the ETP on studies that similarly noted the need for further
study.57
27. Fifth, the United States alleges that the Panel acted inconsistently with Article 11 of the DSU
by failing to fully consider two studies submitte d by the United States as Panel Exhibits US-21 and

57United States' appellant's submission, para. 106 (referring to Panel Report, paras. 7.528 and 7.529).

US-22.
58 In particular, the United States disagrees w ith the Panel's statement that other studies
"question[] the conclusions" of the studies c ontained in Panel Exhibits US-21 and US-22. 59 T h e
United States submits that in fact they did not , and could not have done so, as the other studies
referred to by the Panel largely pre-date the studies contained in the above-mentioned Panel exhibits.
28. Sixth, the United States alleges that the Panel's findings regarding depleted dolphin stocks are
not supported by the facts. The sources cited by th e Panel in support of its statement that depleted
dolphin populations in the ETP are recovering in fact state that "dolphin stocks are not recovering at
expected rates" and that "neither population is reco vering at a rate consistent with these levels of
depletion and reported kills".60 Moreover, the United States takes issue with the Panel's statement that
dolphin populations near Ghana and Togo are "severel y depleted", because there is "no indication in
the source cited that the dolphin stocks off the coast of Ghana and Togo are depleted because of tuna
fishing activities". 61 Furthermore, the Panel "neglected to consider" evidence adduced by the
United States demonstrating that dolphin populations in the ETP are depleted and that the most likely
reason for recovery rates below the expected rates was the continued tuna purse seine fishing in the
ETP, even under the AIDCP guidelines.
62
29. Finally, the United States raises a challenge under Article 11 of the DSU relating to the
Panel's finding that coexistence of the US "dolphi n-safe" label and the AIDCP label would be a less
trade-restrictive alternative measure. The United St ates alleges, first, that Mexico did not offer
evidence indicating that consumers appreciate tuna th at meets the AIDCP definition of "dolphin-safe"
to the same degree as tuna that meets the defin ition set forth by the US "dolphin-safe" labelling

58P. Wadel, G.M. Watters, T. Gerrodette, and S.B. Reilly, "Depletion of spotted and spinner dolphins in
the eastern tropical Pacific: modeling hypotheses for their lack of recovery", Marine Ecology Progress Series,
Vol. 343: 1-14 (published 7 August 2007) (Panel Exhibit US-21); and T. Gerrodette and J. Forcada, "Non-
recovery of two spotted and spinner do lphin populations in the eastern tropical Pacific Ocean", Marine Ecology
Progress Series, Vol. 291: 1-21 (published 28 April 2005) (Panel Exhibit US-22).
60United States' appellant's submission, para. 112 (referring to S.R. Noren and E.F. Edwards,
"Physiological and behavioural development in Delphinid calves: Implications for calf separation and mortality
due to tuna purse-seine nets" in Marine Mammal Science, Vol. 23, No. 1 (January 2007) (Panel Exhibit US-4),
p. 1; and S.B. Reilly et al., "Report of the Scien tific Research Program under the International Dolphin
Conservation Program Act", National Oceanic and Atmospheric Administration (NOAA) Technical
Memorandum NOAA-TM-NMFS-SWFSC-372 (March 2005) (Panel Exhibit US-19), p. 32). (emphasis added
by the United States)
62United States' appellant's submission, para. 113 (referring to Panel Exhibit US-4, supra, footnote 60,
pp. 15-29; T. Gerrodette, G. Watters, W. Perryman, and L. Balance, "Estimates of 2006 Dolphin Abundance in
the Eastern Tropical Pacific, with Revised Estimates from 1986-2003", NOAA Technical Memorandum NMFS-
SWFSC-422 (April 2008) (Panel Exhibits US-20 and MEX-33); Panel Exhibit US-21, supra, footnote 58;
F. Archer, T. Gerrodette, S. Chivers, and A. Jackson, "Annual estimates of missing calves in the pantropical
spotted dolphin bycatch of the eastern tropical Pacific tuna purse sein e fishery" in NOAA's Fishery Bulletin,
Vol. 102(2): 233-244 (2004) (Panel Exhibit US-27); and F. Archer, T. Gerrodette, T. Dizon, K. Abella, and
S. Southern, "Unobserved kill of nursing dolphin calves in a tuna purse seine fishery" in Marine Mammal
Science, Vol. 17, No. 3 (July 2001), pp. 540-554 (Panel Exhibit US-28)).

provisions. Second, the Panel misinterpreted the significance of evidence that US consumers prefer
tuna that is "dolphin-safe". This evidence suggests th at consumers prefer tuna that is "dolphin-safe"
as defined under the measure at issue, rather than labelled "dolphin-safe" in accordance with different
dolphin-safe conditions. The Panel further erred in evaluating the evidence in connection with its
finding that consumers cannot distinguish between tuna caught in a manner that adversely affects
dolphins and other tuna. In particular, the United States points to the Panel's statement that an opinion
poll offered by Mexico is "the only piece of evid ence presented in these proceedings to ascertain what
US consumers in fact understand [by] the term[] 'dolphin-safe'."63 However, this poll was not the only
piece of evidence presented with regard to US c onsumers' understanding of "d olphin-safe" labelling.
For instance, the United States intr oduced evidence in support of the contention that, at the time the
measure at issue was adopted, "there was strong c onsumer sentiment that setting on dolphins to catch
tuna was unacceptable and that something should be done to ensure that consumers had a choice not
to purchase a product that contained tuna caught in association with dolphins."64
3. Article 2.4 of the TBT Agreement and the Notion of "International Standard"
30. In the event that the Appellate Body finds the US "dolphin-safe" labelling provisions to
constitute a "technical regulation" within the meaning of Annex 1.1 of the TBT Agreement , the
United States seeks review by the Appellate Body of the Panel's finding that the AIDCP
"dolphin-safe" definition and certification is an "international standard" within the meaning of
Article 2.4 of that Agreement.
65 According to the United States, th e Panel's conclusion is in error and
is based on erroneous findings on issues of law and legal interpretations of the TBT Agreement ,
including the Panel's finding that the AIDCP is an "international standardizing organization" for the
purposes of the TBT Agreement.
31. The United States recalls the Panel's statement that, in order to conclude that the AIDCP
definition of "dolphin-safe" constitutes an "internati onal standard", it had to find that: (i) the AIDCP
definition is a standard; (ii) the AIDCP is an inte rnational standardizing orga nization; and (iii) the
AIDCP standard was made available to the publ ic. The United States asserts that the Panel's
conclusion that the AIDCP is an "international standa rdizing organization" is in error. In support of
its position, the United States refers to the Pane l's finding that an international standardizing
organization is " a legal or administrative entity based on the membership of other bodies or
individuals that has an established constitution and its own administration, has recognized activities in

64United States' appellant's submission, para. 130 (referring to United States' response to Panel
Question 40, paras. 98-101).

standardization, and whose membership is open to the relevant body of every country ."
66 T h e
United States asserts that the AIDCP meets none of th ese criteria because: (i) it is not "international"
within the meaning of the TBT Agreement because its membership was not and is not open to all
WTO Members; (ii) it does not have "recognized activities in standardization"; and (iii) the parties to
the AIDCP are parties to an international agreement, not to a body or organization.67
32. With respect to the question of whether the AIDC P is "open to the relevant bodies of at least
all Members" and hence "international" for the purposes of the TBT Agreement , the United States
submits that the Panel's conclusion that the AI DCP is "international" was based on "an incorrect
understanding of what is required fo r an organization to be 'open'". 68 The United States contends that
the AIDCP "was not open when the dolphin safe definition was developed, and the AIDCP is not
open today".
69
33. The United States points out that both Annex 1 to the TBT Agreement and the ISO/IEC
Guide 2: 1991 refer to the openness of a body in the present tense ("a body that is open"). On this
basis, the United States argues that the "organization must be open to all Members during the period
during which the standard in question was deve loped and it must remain open thereafter." 70 T h e
United States finds support for this interpretati on in the TBT Committee's Decision on Principles for
the Development of International Standards, Guides and Recommendations with Relation to
Articles 2, 5, and Annex 3 to the Agreement 71 (the "TBT Committee Decision"), which defines
openness to all Members as including "openness w ithout discrimination with respect to the
participation at the policy development level and at every stage of standards development".72
34. The United States notes that the period for signa ture of the AIDCP ended on 14 May 1999,
but that the AIDCP resolutions in question we re not adopted until 15 June 2001. For the
United States, the closing of the signature period be fore the development of the definition at issue
"precludes a finding that the AIDCP was open through signature for purposes of the definition at
issue".73 Moreover, the United States disagrees with the Panel's finding that the fact that all States
whose vessels fished for tuna in th e agreement area during the signature period were eligible to join

66United States' appellant's submission, para. 137 (quoting Panel Report, para. 7.680). (emphasis added
by the United States)
71Decision of the Committee on Principles for the Development of International Standards, Guides and
Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement, in WTO document
G/TBT/1/Rev.9, Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to
Trade since 1 January 1995, 8 September 2008, pp. 37-39.
72United States' appellant's submission, para. 139 (quoting TBT Committee Decision, p. 38).

the AIDCP and that there were no prohibitions of fi shing in the agreement area at the time means that
the AIDCP was open to all Members, "since other Members who may have an interest in the AIDCP's
activities other than fishing (such as consumer or co nservation interests) were ineligible to become
parties to the AIDCP."74
35. With respect to the Panel's finding that the AIDCP remains open to all Members on a non-
discriminatory basis, since any State or regional eco nomic integration organization can be invited to
accede to the agreement on the basis of a decision by the parties, the United States asserts that "[a]
body in which Members may participate by invitation only is not a body that is 'open'." 75 T h e
United States stresses that "becoming a party to the AIDCP is not an option available to at least all
Members; it is an option available only to those Members invited".76 For the United States, it follows
therefore that "not all Members have the ability to pa rticipate in review or revision of the definitions
at issue."77
36. The United States elaborates on the reasons why st andardizing organizations must be open to
all Members in order to be considered "international" for the purposes of the TBT Agreement .
Referring to Articles 2.4 and 2.5 of the TBT Agreement, the United States submits that international
standardizing organizations have the "power to affect" the rights and obligations of Members, and that
all Members must therefore be able to participate in their work. 78 The United States stresses that, if
"international standards" could be developed by bodies that are not open to all Members, all Members
would be required to base their technical regulatio ns on those international standards, despite the
inability of some of them to participate in the deve lopment, review, and revision of those standards.
Finally, the United States highlights that the TBT Agreement specifically recognizes that some
transnational standardizing bodies are not "international bodies" for the purposes of the
TBT Agreement. Thus, Annex 1.5 specifies that a "regional body" is a body not open to at least all
Members.
37. With respect to the question whether the AIDCP has "recognized activities in
standardization", the United States recalls the Pa nel's finding that recognition of standardizing
activities can occur in two ways: either by particip ation in a body's standardization activities, or by
acknowledgment of the "existence, legality and validity" of the body's standards.
79 The United States
submits that the first criterion articulated by the Pa nel is flawed, and that the second, while valid in
principle, was not properly applied by the Panel.

76United States' appellant's submission, para. 143 (referring to AIDCP, Article IX).

38. According to the United States, by suggesting that participation in standardizing activities is
evidence of the recognition of those activities, the Pa nel "effectively read the term 'recognized' out of
the definition".
80 The United States suggests that, if the act of creating a standard was at the same
time an act of recognition by the creators, "there w ould be no need to specify that standardization
activity need to be recognized", since the existence of a standard would in itself establish that
recognition occurred. 81 The Panel's criterion would thus fail to give meaning to the element of
"recognition" in the definition of a "standardizing body".
39. The United States concedes that the Panel' s second criterion of how recognition of
standardizing activity occurs, namely, "through acknow ledgment of a body's standards", is valid, but
argues that the Panel did not apply it properly. 82 In particular, the United States asserts that the Panel
"cited no facts and provided no findings" in support of its assertion that the parties to the AIDCP had
acknowledged the existence, legality, and validity of the AIDCP "dolphin-safe" definition.83
40. In the United States' view, th e passage from a court ruling cite d by the Panel as evidence of
the United States' recognition of the AIDCP standard does not support the Panel's conclusion, because
the passage does not refer to the AIDCP standard, but instead to the definition of "dolphin-safe"
envisaged for adoption into US law by the Panama Declaration. Moreover, the United States points
out that the quoted passage discusses th is definition in the context of its rejection by the US Congress
for the United States' labelling scheme.84
41. The United States submits that, in any event, recognition of a single standard would not
amount to recognition of a body's "standardizing activities". For the United States, the plural
"activities" implies that "the body has been involved in the development of more than one standard."85
The United States asserts that "[i]f recognition of a single standard were sufficient to make a body a
'standardizing body' then it would be impossible fo r Members to know at the time they were working
on a standard whether that standard would be an international standard … that would trigger the
obligations under the TBT Agreement." 86 In the United States' view, the "better approach is to give
meaning to 'standardizing activities' as being more than a single standard, such that the body's
standardizing activities would have been recognized before the development of the standard at

84United States' appellant's submission, paras. 155-158.

issue."87 This would mean that all WTO Members would "be on notice that the standard being
developed would trigger the TBT Agreement obligations".88
42. Finally, the United States argues that the Panel does not explain why recognition by one
Member would be sufficient to satisfy the require ment of "recognition" of a body's "standardizing
activities" for purposes of the TBT Agreement. If this were so, the United States submits, "Members
would be unable to dispute the existence, lega lity, and validity of a standard that may be
acknowledged by another Member."89
43. With respect to the question of whether the AI DCP is an "organization", the United States
recalls that the Panel relied upon the ISO/IEC Guide 2: 1991 to determine that an "organization" is a
"legal or administrative entity" that is "based on the membership of other bodies" and has "an
established constitution and its own administration". 90 The United States submits that the Panel
"correctly concluded that the parties to the AIDCP do not meet this definition, but then proceeded to
analyze an entirely different organization" to fi nd that the AIDCP may nonetheless be deemed to
constitute an "organization". 91 The United States challenges both the legal reasoning and the factual
basis of this finding.
44. The United States recalls the Panel's observatio n that "[t]he AIDCP is an international
agreement concluded among States" and "does not as such have an established constitution or its own
administration".92 The United States agrees with this statem ent and argues that this should have been
the end of the Panel's enquiry. The United States faul ts the Panel for relying on the characteristics of
"a separate organization—the Inter-American Tropi cal Tuna Commission ["IATTC"]" in order to
conclude that the parties to the AIDCP constitute an organization. 93 In the United States' view, the
alleged "institutional links" between the AIDCP and th e IATTC were insufficient to attribute to the
parties to the AIDCP the institutional structure ma intained by a separate en tity. The United States
therefore argues that the Panel's examination of the IATTC was "irrelevant".94
45. The United States additionally alleges that the Pa nel acted inconsistently with Article 11 of
the DSU by failing to make an objective assessment of the facts concerning the links it found to exist
between the AIDCP and the IATTC. The United Stat es submits that the Panel ignored the "many key

attributes that distinguish the two entities".
95 The United States emphasizes that the AIDCP is legally
distinct from the IATTC and that the IATTC has no legal authority to make decisions regarding the
subject matter of the AIDCP. According to th e United States, these "uncontested facts" support a
reversal of the Panel's finding that the "institu tional links" between the AIDCP and the IATTC are
"sufficient to consider the attributes of the IATTC as attributes of the parties to the AIDCP".96
B. Arguments of Mexico – Appellee
1. Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
46. Mexico requests the Appellate Body to uphold th e Panel's finding that the measure at issue
constitutes a "technical regulation" within the meaning of Annex 1.1 of the TBT Agreement. Mexico
disagrees with the United States' contention that the Panel's inte rpretation of "mandatory" is
indistinguishable from the term "requirements". Me xico contends that the Panel carefully explained
how its interpretation distinguished the meaning of "mandatory" from the meaning of "requirements".
Mexico agrees, however, with the United States th at: (i) labelling requirements may be equally
prescribed by technical regulations and standards; (ii) a conclusion that compliance with certain
labelling requirements is "mandatory" within the meaning of Annex 1.1 must be based on
considerations other than, or beyond, the mere fact that such documents establish criteria for the use
of a certain label; and (iii) a labelling requirement sets out the conditions that a product is required to
meet in order to use a label.
47. Mexico maintains that what makes the US " dolphin-safe" labelling provisions mandatory is
not whether a label is de jure required in order to sell tuna products in the market. Rather, it is the
fact that the US "dolphin-safe" labelling provisions restrict retailers, consumers, and producers to a
single choice for labelling tuna products as "dolphi n-safe", because it is not possible to label tuna
products as "dolphin-safe" under any other definition. No other label, term, or symbol that claims or
suggests dolphin-safe can be used unless it meets th e requirements in the US "dolphin-safe" labelling
provisions. Mexico contends that the prohibition of using a label based on any standard other than the
US standard is a measure that is separate from and in addition to the "labelling requirements". It is
this prohibition that transforms what would otherwise be a standard into a technical regulation.
48. Mexico takes issue with the United States' argume nt that only the interpretation set out in the
separate opinion would leave space for characteriz ing voluntary labelling schemes as standards.
Mexico contends that, in the absence of the prohi bition in the US "dolphin-safe" labelling provisions,

both the AIDCP dolphin-safe standard and the US do lphin-safe standard could co-exist, each subject
to its own labelling requiremen ts. This would constitute a voluntary labelling scheme using
"standards" (that is, documents w ith which compliance is not mandatory), as opposed to the current
scheme of a "technical regulation" (that is, a document with which compliance is mandatory).
49. Mexico also disagrees with the United States' cont ention that the Panel failed to give effect to
the statement by the Appellate Body in EC – Asbestos that mandatory compliance is characterized by
being "binding" or "compulsory".97 Contrary to what the United States argues, the relevant statements
by the Appellate Body in EC – Asbestos and by the Panel in the present dispute make it clear that
"regulation … in a binding and compulsory fashion" relates to the "product characteristics" (that is,
the "dolphin-safe" label) and not to the sale, impo rtation, distribution, or marketing of the tuna
product. Mexico argues that this exposes a "fundament al flaw" in the United States' argument and in
the separate opinion, because, under th eir interpretation, whether or not the product is permitted to be
sold in the market is pivotal to the meaning of "mandatory". Mexico, however, contends that what
matters is not whether the "sale" of tuna products is regulated but whether the "product
characteristics"—that is, the "dolphin-safe" label—are regulated.
98
50. Mexico disagrees with the United States' argume nt that the Panel incorrectly applied the
"positive and negative distinction" employed by the Appellate Body in EC – Asbestos.99 For Mexico,
the Appellate Body's reference to "prescribing or imposing" product characteristics relates to the
mandatory criterion contained in the definition of "tec hnical regulation", in particular, to the fact that
a technical regulation can prescribe or impose characte ristics in a positive or negative form. Thus, for
Mexico, the reference to "positive or negative form " is relevant to the mandatory criterion in the
definition of a "technical regulation".100
51. With respect to the United States' allegation that the Panel erred in relying on the fact that the
measure at issue is legally enforceable and binding under US law in its analysis of whether the
measure constitutes a technical regulation, Mexico contends that the United States confuses the
enforcement of "labelling requirements" with the en forcement of the single "dolphin-safe" definition.

97Mexico's appellee's submission, paras. 54 and 55 (quoting United States' appellant's submission,
paras. 38 and 39).
99Mexico's appellee's submission, para. 60 (referring to Appellate Body Report, EC – Asbestos ,
para. 69).
100Mexico's appellee's submission, para. 62 (referring to Appellate Body Report, EC – Asbestos ,
paras. 68 and 69).

Mexico maintains that it is the "separate and distinct prohibition" of any other label that is the focus of
the Panel's analysis with respect to "enforceability".
101
52. Mexico also takes issue with the United States' arguments regarding "exclusivity". Mexico
contends that what the United States refers to as "exclusivity" is the single exclusive definition of
"dolphin-safe" under US law. Mexico disagrees wi th the United States' argument that the Panel's
finding of "exclusivity" and its reference to "mandatory standard" in the ISO/IEC Guide 2: 1991 is not
based on the text of the TBT Agreement.102 Mexico maintains that the introductory clause of Annex 1
to the TBT Agreement allows recourse to the definitions c ontained in the ISO/IEC Guide 2: 1991.
Accordingly, the ISO/IEC Guide 2: 1991 provides that a "mandatory standard" is one that is made
compulsory by, inter alia, an "exclusive reference" in a regulat ion, and an "exclusive reference (to
standards)" is a reference that states that the only wa y to meet the relevant requirements of a technical
regulation is to comply with the standard(s) referre d to. Mexico contends that the Explanatory Note
to Annex 1.2 to the TBT Agreement provides the "relevant textual link" to support the proposition that
a "mandatory standard" under the ISO/IEC Guide 2: 1991 is a "technical regulation" under the
TBT Agreement.103 Mexico concludes that the "standard" set out in the US "dolphin-safe" labelling
provisions is a "mandatory standard" within th e meaning of the ISO/IEC Guide 2: 1991 and is
therefore, by virtue of the Explanatory Note to Annex 1.2, a "technical regulation" within the meaning
of the TBT Agreement.
53. Mexico further submits that the Panel acknowledge d that the situation in this dispute closely
resembles the disputes in EC – Sardines and EC – Trademarks and Geographical Indications
(Australia). For Mexico, these rulings indicate that the mere fact that it is legally permissible to place
a product on the market without using the designation that is regulated by the measure at issue does
not compel the conclusion that the measure is not "mandatory" within the meaning of Annex 1.1,
where the measure "effectively regulate[s] in a binding manner the use of the appellation".
104 Mexico
disagrees with the separate opinion that the Appellate Body's findings in EC – Sardines are irrelevant
to the present case, because the situation in that di spute was different to the present case in that it
involved a prohibition to market certain preserved sardines as "sardines", and thus these products
were prohibited to enter the sardine market altogether. Mexico submits that, in EC – Sardines , the
product at issue could be marketed as "sardines" only if it were a certain species of fish, but it could in
any event be sold in the EU market—although not as "sardines"—if it consisted of another species.

101Mexico's appellee's submission, para. 68 (referring to Panel Report, paras. 7.128, 7.131, 7.137,
and 7.142-7.145).
102Mexico's appellee's submission, para. 70 (referring to United States' appellant's submission,
footnote 97 to para. 66).
104Mexico's appellee's submission, para. 81 (referring to Panel Report, paras. 7.133-7.137).

Similarly, in this dispute, the tuna products at issue can be marketed as "dolphin-safe" only if they
comply with the requirements of the US "dolphin-safe" labelling provisions. If they do not comply
with these requirements, they may be sold in the US market, but not as "dolphin-safe".105
54. Furthermore, Mexico maintains that the US "dolphin-safe" labelling provisions concern
"regulation" and not "standardization". According to Mexico, the act of regulation has an imperative
and binding nature, whereas standardization is not imperative or binding in nature. Standardizing
bodies have knowledge and expertise in the relevant area of standardization. Market participants
understand the benefits of standard ization and, for that reason, apply standards. They are not
compelled by a regulatory measure to use specific sta ndards because, by their very nature, standards
are optional and voluntary. To the contrary, in the present case, US central government bodies have
pursued certain policy objectives by adopting "dol phin-safe" labelling requirements with which
market participants must comply if they are to use any form of "dolphin-safe" designation. Thus,
Mexico concludes that the US "dolphin-safe" labelling provisions do not standardize, but rather
regulate.
55. Finally, in the event that the Appellate Body reverses the Panel's finding that the measure at
issue is of a de jure mandatory nature, Mexico requests the Appellate Body to affirm the Panel's
conclusion on the basis that the measure is de facto mandatory. Mexico contends that the measure at
issue is de facto mandatory, because market conditions in the United States are such that it is
impossible to effectively market and sell tuna products without a "dolphin-safe" designation.
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement
56. Mexico requests the Appellate Body to uphold the Panel's finding that the US "dolphin-safe"
labelling provisions are more trade restrictive th an necessary to fulfil thei r legitimate objectives and
are therefore inconsistent with Article 2.2 of the TBT Agreement. According to Mexico, the Panel's
finding is correct because the United States' objectiv es can be fulfilled with a less trade-restrictive
alternative measure, namely, allowing the AIDCP label and the US "dolphin-safe" label to coexist in
the US market.
57. Mexico maintains that the Panel correctly found that coexistence of the AIDCP label with the
US "dolphin-safe" label would be a less trade-rest rictive alternative measure that would fulfil the
United States' objectives. In particular, with respect to the objective of ensu ring that consumers are
not misled or deceived about whether tuna products contain tuna that was caught in a manner that
adversely affects dolphins, Mexico contends that the Panel was correct in finding that the

105Mexico's appellee's submission, paras. 84 and 85 (r eferring to Panel Report, paras. 7.138 and 7.164;
and Appellate Body Report, EC – Sardines, para. 118).

US "dolphin-safe" label currently does not provide certainty to consumers and that the extent to which
consumers would be misled would not be greater if the AIDCP label were also allowed. Mexico
considers that the Panel found that it was misleading not to allow consumers to be aware that tuna was
caught in compliance with the AIDCP, because the Panel stated that, to the extent the measure at issue
makes no distinction between setting on dolphins in general and setting on dolphins under AIDCP
standards, it would not allow the US consumer to be informed of the AIDCP dolphin protection
measures. Mexico also points to the Panel's stat ement that it was not persuaded that allowing
consumers to be fully informed about the efforts ma de in the context of the AIDCP for the protection
of dolphins in the ETP would be more misleading th an allowing a "dolphin-safe" label to be applied
to tuna caught outside the ETP in the absence of any monitoring of observed or unobserved killing of
dolphins in those fisheries.
58. Regarding the United States' argument that coexistence of the AIDCP label and the
US "dolphin-safe" label on the US market would be confusing for consumers, Mexico contends that
the Panel did not share the United States' sceptic ism that consumers coul d understand the difference
between the two labels. Moreover, Mexico alleges that the United States makes little effort to provide
consumers with accurate information on what its " dolphin-safe" label means. The relevant website
106
only provides information on what the "dolphin-safe" label means for tuna caught in the ETP, but
does not provide information about the meaning of the label for tuna harvested in other ocean regions.
This gives the false impression that tuna caught in those other regions have been certified as not
causing death or serious injury to dolphins. Mexico further argues that the fact that in January 2003
tuna products complying with the AIDCP standa rd could be labelled "dolphin-safe" in the
United States demonstrates that, prior to this di spute, the United States agreed that the AIDCP
standard met the expectations of producers, reta ilers, and consumers, and that the United States had
the ability to alter the definition.
59. With respect to the United States' objective of contributing to the protection of dolphins by
ensuring that the US market is not used to encour age fishing fleets to catch tuna in a manner that
adversely affects dolphins, Mexico takes issue with the United States' argument that allowing the
AIDCP label would not address the risks to dolphins outside the ETP. Mexico contends that the Panel
found that the measure at issue may actually be ha rmful to dolphin populations worldwide, because it
has the effect of encouraging fleets to fish outside the tightly regulated ETP and to fish instead in
other ocean regions where dolphins are unprotected. Thus, Mexico considers that the Panel found the

106According to Mexico, the website <www.dolphins afe.gov> is the only website with information
published by the United States Department of Commerce (the "USDOC") for consumers on the meaning of the
"dolphin-safe" label. (Mexico's appellee's submission, para. 166)

US dolphin protection provisions to be "counter-pro ductive" and contrary to the objective of dolphin
protection outside the ETP.107
60. In addition, in response to the United States' argument that allowing setting on dolphins is
inherently harmful to dolphins and would therefore frustrate the dolphin protection objective, Mexico
submits that the United States is suggesting that its goal is to eliminate the possibility of even a single
dolphin mortality in all fishing operations. Howe ver, it has been established that dolphin mortalities
occur in relation to all the major commercial tuna -fishing methods, including fish aggregating devices
("FAD") sets, unassociated sets, gilln et fishing, and longline fishing. 108 In the ETP, the incidental
mortalities of dolphins in relation to their populations are lower than the rate of incidental mortalities
of marine mammals permitted by the United States in its domestic fisheries.
61. Mexico maintains that, even if the Appellate Body were to find merit in the United States'
arguments, the US "dolphin-safe" labelling provis ions are nonetheless more trade restrictive than
necessary within the meaning of Article 2.2 of the TBT Agreement , because they are applied in a
manner that constitutes a means of arbitrary and un justifiable discrimination and thus constitute an
unnecessary obstacle to international trade contrary to the sixth recital of the preamble of the
TBT Agreement. Mexico contends that Article 2.2 must be read together with the sixth recital, which
requires Members not to apply technical regulations in a manner that would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a
disguised restriction on international trade. No ting similarity between the present dispute and the
factual situation in US – Shrimp, Mexico submits that the US "dolphin-safe" labelling provisions have
created a "rigid and unbending standard". 109 The purpose of the measure at issue is to "unilaterally
and extraterritorially impose U.S. fishing me thod requirements" as a condition for access to the
principal distribution channels in the US tuna pro ducts market, and in that manner to pressure foreign
tuna fleets to change their fishing methods.110
62. Finally, in response to the United States' contention that the Panel implied that the
United States was required to fulfil its objective to the same extent inside and outside the ETP,
regardless of the cost, Mexico asserts that the Pa nel was correct in rejecting the United States'
argument that the measure at issue is "calibrated" to risks to dolphins in different ocean regions. The
Panel was correct in taking into account the absence of any requirement to certify that no dolphin has
been killed or seriously injured in situations where dolphins may in fact have been killed or seriously

109Mexico's appellee's submission, para. 183 (quoting Appellate Body Report, US – Shrimp, para. 163).
110Mexico's appellee's submission, paras. 178-186.

injured.
111 Mexico further submits that the United States Department of Commerce (the "USDOC")
has never conducted an inquiry into whether it should consider designating any ocean region as
having "regular and significant association between marine mammals and tuna" or as having "a
regular and significant mortality or serious injury to dolphins", and therefore never evaluated the risk
to dolphins from tuna fish ing in other ocean regions. 112 In addition, the United States did not submit
to the Panel any information regarding cost for th e tuna industry of carryi ng independent observers.
Mexico contends that, in the absence of such evid ence, it would not have been appropriate for the
Panel to rely on such factors as a justification for the failure of the US measure to fulfil its objectives
outside the ETP.
63. Furthermore, Mexico requests the Appellate Body to reject the United States' allegations that
the Panel failed to make an objective assessment of the facts and therefore acted inconsistently with
Article 11 of the DSU.
64. First, Mexico disagrees with the United States that the Panel made contradictory findings
regarding the relative risks to dolphins arising from di fferent fishing techniques. Mexico alleges that
the United States relies on a "selective quotation" th at omits important information when it quoted the
Panel Report, In particular, Mexico asserts that the United States omitted the underlined part of the
sentence: "[i]t is undisputed, in particular, th at the fishing method known as setting on dolphins may
result in a substantial amount of dolphin mortalities and serious injuries, especially when used without
applying certain fishing gear and procedures designed to reduce dolphin bycatch." 113 Mexico asserts
that it submitted substantial evidence demonstra ting that the fishing methods permitted under the
AIDCP have been successful in limiting dolphin mo rtalities to levels considered acceptable in
fisheries subject to US territorial jurisdiction. Me xico agrees that high risks to dolphins exist in other
ocean regions where nets are being set on dolphins.114
65. Second, in response to the United States' challenge of the Panel's findings relating to the harm
to dolphins resulting from setting on dolphins to catch tuna as compared to the harm to dolphins
resulting from other fishing methods, Mexico disagrees with the United States that the Panel failed to
address evidence suggesting that the levels of th e tuna-dolphin association in the ETP are unique, and
the implications of that for risks to dolphins. Me xico maintains that the Pa nel extensively analyzed

111Mexico's appellee's submission, paras. 152 and 153 (quoting Panel Report, paras. 7.549, 7.550,
and 7.561).
112Mexico's appellee's submission, para. 156 (referring to Panel Report, para. 2.23, in turn referring to
United States' first written submission to the Panel, para s. 38 and 39; and United States' responses to Panel
Questions 12 and 85).
113Mexico's appellee's submission, paras. 117 and 118 (quoting Panel Report, para. 7.438, and referring
to United States' appellant's submission, para. 94). (underlining added by Mexico)

the United States' contention that certain environmental conditions in the ETP (such as the intensity of
tuna-dolphin association) are unique, and refers to the Panel's statement that, even assuming this were
the case, "the evidence submitted to the Panel suggests that the risks faced by dolphin populations in
the ETP are not."115
66. Third, Mexico submits that the Panel objec tively assessed the evidence concerning relative
harm to dolphins inside and outside the ETP. Mexi co submits that the Panel did not say that the
evidence regarding risks to dolphins arising from t una fishing outside the ETP was "minimal", as the
United States asserts. 116 Mexico argues that the United States omits a number of the Panel's
references to relevant evidence and takes statements by the Panel out of context. According to
Mexico, while the United States alleges that the Pa nel failed to address evidence it had put forward,
the United States acknowledges that the Panel cite d other evidence demonstrating that there are
"multiple examples of numerous dolphins being killed annually in other fisheries."117 For Mexico, the
United States itself thus acknowledges that the Pane l engaged in weighing that evidence. In any
event, Mexico contends that panels have a margin of discretion in the assessment of the facts and not
according the weight that one of the parties belie ves should be accorded to the evidence does not in
itself constitute legal error.
67. Fourth, Mexico disagrees with the United States th at the evidence relating to risks to dolphins
outside the ETP did not support the Panel's conclusi on. Mexico contends that the United States
ignores much of the evidence before the Panel or argues that the Panel should have construed
evidence differently.118 In respect of the United States' argu ment that the Panel erred in relying on
evidence relating to harm to dolphins from driftnet fishing because tuna caught using this fishing
method in the high seas is not eligible for the US "d olphin-safe" label, Mexico submits that most of
the evidence cited by the Panel does not involve driftn et fishing on the high seas, but instead refers to
the use of driftnets in coastal waters. Mexico em phasizes that tuna caught in this manner is eligible
for the US "dolphin-safe" label under the measure at issue. Moreover, restrictions concerning tuna
caught with driftnets on the high seas do not appl y automatically. To "trigger the enforcement

115Mexico's appellee's submission, para. 133 (quoting Panel Report, para. 7.552 (original emphasis)).
Mexico also notes that, in making this finding, the Panel referred to several different pages of N.M. Young and
S. Iudicello, "Worldwide Bycatch Of Cetaceans: An evaluation of the most significant threats to cetaceans, the
affected species and the geographic ar eas of high risk, and the recommended actions from various independent
institutions", NOAA Technical Memorandum NMFS-OPR-36 (July 2007) (Panel Exhibit MEX-05).
116Mexico's appellee's submission, para. 120 (quoting United States' appellant's submission, para. 100).
117Mexico's appellee's submission, para. 119 (quoting United States' appellant's submission, para. 99, in
118Mexico's appellee's submission, paras. 126, 127, and 128 (referring to National Research Council,
"Dolphins and the Tuna Industry" (National Academy Press, Washington, D.C., 1992) (Panel Exhibit MEX-02);
and Panel Exhibit MEX-05, supra, footnote 115).

mechanism", a country must be designated by th e USDOC as a nation fishing with large scale
driftnets.
119 The only country to have been so designated is Italy.120
68. Fifth, Mexico disagrees with the United States that the Panel failed to consider fully two
studies submitted by the United States as Panel E xhibits US-21 and US-22 regarding the unobserved
effects on dolphins from being chased and encircled in the ETP. Mexico contends that the validity
and reliability of these two studies was a major topic of the panel proceedings and that these studies
were based on estimates of population and popula tion growth that the USDOC own 2008 abundance
estimate considered to be incorrect. 121 The 2008 study concluded that each of the depleted dolphin
stocks (coastal and northeastern offshore spotted a nd eastern spinner dolphins) were estimated to be
growing at rates near the 4-8% maximum possible for dolphins. 122 Furthermore, the AIDCP's
Scientific Advisory Board produced a report recommending increases in the dolphin mortality limits
enforced by the AIDCP based on the fact that the populations of these stocks are significantly larger
than previously believed.123
69. Sixth, Mexico disagrees with the United States that the Panel's findings regarding depleted
dolphin stocks are not supported by facts. Mexi co maintains that the Panel fully acknowledged the
United States' argument that dolphin po pulations are not increasing fast enough. 124 With respect to
the United States' allegation that the Panel "neglect ed to consider" evidence that two dolphin stock
populations are not growing at the expected rate s because of unobserved harm resulting from setting
on dolphins, Mexico contends that the Panel describ ed and analyzed the studies and evidence referred
to by the United States. 125 Therefore, in Mexico's view, the Un ited States' claim of "neglect" is in
reality a complaint that the Panel did not agree with the United States.126
70. Finally, Mexico rejects the United States' clai m that the Panel acted inconsistently with
Article 11 of the DSU in reaching its finding that th e coexistence of the US "dolphin-safe" label and
the AIDCP label would be a less trade-restrictive alternative measure. Mexi co maintains that the

119Mexico's appellee's submission, para. 123 (referring to United States Code , Title 50,
Section 216.24(f)(7) (Panel Exhibit US-23b)).
120Mexico's appellee's submission, para. 123 (referring to Mexico's comments on United States'
responses to Panel Questions after second Panel meeting, para. 27).
121Mexico's appellee's submission, paras. 143 and 144 (referring to United States' appellant's
submission, para. 108; and Mexico's second written submission to the Panel, paras. 43-60).
122Mexico's appellee's submission, paras. 139 and 140 (referring to Panel Exhibits US-20 and MEX-33,
supra, footnote 62, p. 12; and Mexico's second written submission to the Panel, paras. 50-61).
123Mexico's appellee's submission, para. 141 (referring to International Dolphin Conservation Program
(IDCP) Scientific Advisory Board, "Updated Estimates Of Nmin And Stock Mortality Limits", Document SAB-
07-05 (30 October 2009) (Panel Exhibit MEX-91)).
125Mexico's appellee's submission, para. 138 (referring to Panel Report, paras. 7.495-7.499).
126Mexico's appellee's submission, para. 138 (referring to United States' appellant's submission,
para. 113).

Panel did not disregard, as alleged by the United St ates, "ample evidence" that retailers will sell and
consumers will purchase tuna products that are "dolphi n-safe" as defined under the measure at issue,
rather than labelled "dolphin-safe" in accordan ce with different conditions, such as the AIDCP. 127
Mexico contends that the Panel considered in its analysis of Article 2.1, evidence suggesting that,
contrary to Mexico's position, while the AIDCP label would not be acceptable to retailers as an
alternative "dolphin-safe" certification, US retailers would be prepared to offer Mexican tuna products
for sale if they meet the conditions fo r labelling under the existing US measure.
128 For Mexico, this
demonstrates that the Panel considered relevant evidence and did not fail to make an objective
assessment of the matter.
71. Moreover, Mexico submits that the Panel did not exceed its margin of discretion in assessing
evidence when finding that a poll was the only piece of evidence presented in respect of the
US consumers' understanding of "dolphin-safe" labelling. Additional evidence adduced by the
United States refers to consumers' perception from more than 20 years ago and is thus irrelevant to
determine consumer perceptions today. For Mexico , the Panel properly exercised its discretion as the
trier of facts in deciding which evidence to utilize in making its findings.129
3. Article 2.4 of the TBT Agreement and the Notion of "International Standard"
72. Mexico requests the Appellate Body to reject the United States' appeal and to uphold the
Panel's findings that the AIDCP standard is an "international standard" within the meaning of
Article 2.4 of the TBT Agreement.130
73. At the outset, Mexico stresses that the United States is a founding member of the AIDCP and
"fully participated in the creation and establishment of the AIDCP's dolphin-safe standard". 131
Mexico highlights that "the very purpose of that stan dard was to facilitate access of tuna products into
the U.S. market" and that the United States enacted the International Dolphin Conservation Program
Act132 (the "IDCPA") in 1997 in order to, inter alia , bring the United States' definition of
"dolphin-safe" into conformity with the AIDCP standard.133
74. Mexico rejects the United States' argument that the AIDCP is not "open" to the relevant
bodies of at least all WTO Members and therefore not "international" for the purposes of the

128Mexico's appellee's submission, para. 193 (referring to Panel Exhibit MEX-58 (BCI)).
129Mexico's appellee's submission, paras. 195 and 196.
132International Dolphin Conservation Program Act, Public Law No. 115-42, 111 Stat. 1122 (15 August
1997) (Panel Exhibit MEX-21).

TBT Agreement. Mexico submits that the Panel correctly concluded otherwise, on the basis that the
AIDCP provides for accession by new States or regiona l economic integration organizations, that it
was open for signature from 1998 to 1999, and th at it remains open to accession by any States or
regional economic integration organi zations that are invited to acced e to the AIDCP on the basis of a
decision by the parties.
134
75. Mexico disagrees with the United States' argu ment that the AIDCP was not open when the
AIDCP "dolphin-safe" definition was developed. Me xico submits that the definition embodied in the
resolutions of the AIDCP was based on "the defin ition initially developed in the Panama Declaration
in 1995", and that the parties to the AIDCP were "w ell aware" of this definition when the AIDCP was
enacted.135 Mexico further claims that the AIDCP "dolphin-safe" definition was elaborated during the
period for signature of the AIDCP. Hence, Mexico submits, the AIDCP was open when the AIDCP
definition of "dolphin-safe" was developed.136
76. Mexico argues that the requirement that new part ies need to be invited in order to join the
AIDCP does not mean that the AIDCP is not ope n to the relevant bodies of at least all WTO
Members. Mexico contends that, considering th e particular nature of the AIDCP regime that
regulates tuna fishing in the ETP, it is understandable that any State or regional organization that has
interest in the AIDCP regulation of tuna fishing techniques can accede today "by a simple invitation
of the rest of members". 137 Mexico suggests that being in vited to accede to the AIDCP is a
"formality". Mexico further notes that no additio nal countries or regiona l economic integration
organizations have expressed an interest in joinin g the AIDCP and that "it is common that during the
AIDCP meetings, Parties to the Agreement invite observer countries that regularly attend such
meetings with the intention in the future to become Parties."138
77. Mexico stresses that, unlike the Agreement on Sanitary and Phytosanitary Measures (the
"SPS Agreement "), which identifies three specific intern ational standardizing organizations, the
TBT Agreement "retains flexibility for determining what are relevant and applicable international
standards on a case by case basis".139
78. Mexico supports the Panel's conclusion th at the AIDCP has "recognized activities in
standardization". Mexico submits that it h as demonstrated the recognition of the AIDCP's
standardizing activities by the United States by s howing that the United States "was a founding and

fully participating member of the AIDCP". 140 Mexico agrees with the Panel that participation by
countries in the development of a standard "is sufficient evidence of their recognition". 141 Mexico
further submits that the elaboration of the "dolphin -safe" definition was one of the main reasons for
many members to participate in the AIDCP. Mexico suggests that this is a "clear signal of
acknowledgement".
142
79. In Mexico's view, the fact that the Unite d States has disallowed the use of the AIDCP
"dolphin-safe" label "does not mean that the AIDCP does not have 'standardizing activities' or that the
AIDCP dolphin-safe label is not currently being used." 143 Moreover, Mexico submits that the
AIDCP's main role is to establish rules and proce dures related to the "interaction between fishing and
dolphins" and that, with regard to the protection of dolphins in the ETP, the AIDCP is the exclusive
organization with recognized activities in standardization. 144 Mexico points out that the AIDCP's
members have issued "a number of other standa rds", including "Procedures for Maintaining the
AIDCP List of Qualified Captains", "Technical Gu idelines to Prevent High Mortality During Sets on
Large Dolphin Herds", and "Guidelines for Requi red Raft for the Observation and Rescue of
Dolphins".145
80. Mexico rejects the United States' argument that the parties to the AIDCP are merely parties to
an international agreement, not to a body or an or ganization. Mexico furthe r submits that the Panel
correctly identified the "institutional link" between the AIDPC and the IATTC. 146 M e x i c o
emphasizes that this institutional link is "well established in the AIDCP itself". 147 In this respect,
Mexico notes that Article XIV of the AIDCP states th at the parties to the AIDCP shall "request the
IATTC to provide Secretariat support and to perform such other functions as are set forth in this
Agreement or are agreed upon pursuant to this Agreement". 148 Mexico also points to other provisions
of the AIDCP that demonstrate the "integral role" that the IATTC has in coordinating the
implementation of the AIDCP.149

145Mexico's appellee's submission, para. 218 and footnote 235 thereto (referring to AIDCP, "Procedures
for Maintaining the AIDCP List of Qualified Captains" (amended 24 June 2004); "Technical Guidelines to
Prevent High Mortality During Sets on Large Dolphin Herds" done at 7th meeting with the parties, Manzanilla
(Mexico), 24 June 2002; and "Guidelines for Required Raft for the Observation and Rescue of Dolphins" done
at 22nd meeting of the parties, La Jolla (USA), 30 October 2009 (Panel Exhibit MEX-83)).
148Mexico's appellee's submission, para. 222 (quoting AIDCP).

81. Mexico requests the Appellate Body to reject the United States' claims under Article 11 of the
DSU, and in particular the United States' argument that the parties to the AIDCP are not the same as
the members of the IATTC. Mexico points out that both the AIDCP and the IATTC remain open to
accession by any State. Mexico concludes that the Panel did not fail to make an objective assessment
of the facts before it as required by Article 11 of the DSU.
C. Claims of Error by Mexico – Other Appellant
1. Consistency of the Measure at Issue with Article 2.1 of the TBT Agreement
82. Mexico alleges various errors in the Panel's analysis and requests the Appellate Body to
reverse the Panel's finding that the US "dolphin-saf e" labelling provisions are not inconsistent with
Article 2.1 of the TBT Agreement, and to find instead that the measure at issue is inconsistent with the
United States' obligations under Article 2.1. In par ticular, Mexico alleges that the Panel erred in its
interpretation and application of the phrase "tre atment no less favourable" in Article 2.1.
Additionally, Mexico challenges several intermediate findings and conclusions by the Panel as legally
erroneous and contrary to the Pa nel's duty to make an objective assessment of the matter before it as
required under Article 11 of the DSU.
(a) Interpretation and Application of Article 2.1 of the TBT Agreement
83. Mexico faults the Panel for applying what Mexi co refers to as a "'denial of access to an
advantage' test" for determining whether a measure provides "less favourable treatment" within the
meaning of Article 2.1. 150 Mexico agrees that "the denial of an advantage could lead to the denial of
competitive opportunities and therefore to a viola tion of the non-discrimination obligations in
Article 2.1."151 Mexico suggests, however, that the Pane l applied a standard under which a measure
could be found to be inconsis tent with Article 2.1 of the TBT Agreement only to the extent that it
imposes an "absolute prohibition or bar" on imports.152
84. Regarding the Panel's interpretation of Article 2.1 of the TBT Agreement , Mexico
acknowledges that the Panel correctly considered the ordinary meaning of the phrase "treatment no
less favourable". Yet, in Mexico's view, the Panel fa iled to "fully consider the context of Article 2.1
and the object and purpose of the TBT Agreement".153 Referring in particular to past jurisprudence
interpreting the national treatment and most favoured nation ("MFN") provisions in the context of the

150Mexico's other appellant's submission, para. 74 (referring to Panel Report, paras. 7.284, 7.291,
and 7.301).
151Mexico's other appellant's submission, para. 75.
152Mexico's other appellant's submission, para. 75.
153Mexico's other appellant's submission, para. 86.

GATT 1994, Mexico argues that the "applicable test" under Article 2.1 of the TBT Agreement is to
assess "whether a measure modifies the conditions of competition in the relevant market to the
detriment of the imported products in question". 154 However, Mexico also highlights that the
"immediate context" of Article 2.1 of the TBT Agreement is different from the non-discrimination
obligations in the GATT 1994 and the GATS, in that the TBT Agreement does not contain a
"substantive equivalent" to the general excepti on provisions found in Article XX of the GATT 1994
and Article XIV of the GATS. 155 Mexico submits that, even though the TBT Agreement does not
provide for general exceptions, the sixth recital of its preamble includes language suggesting that
"certain technical regulations which would violate the above-noted interpretation of Article 2.1 should
not be prohibited if they fall within the specified criteria" of the recital. 156 While Mexico
acknowledges that language in the preamble of the TBT Agreement is "not substantive", it contends
that the substantive provisions of the TBT Agreement must be "interpreted in a manner that is
consistent with this important context". 157 In Mexico's view, this implies that technical regulations
that meet all the criteria of the recital should not be prohibited by Article 2.1, even if they modify the
conditions of competition in the relevant market to the detriment of the imported product in question.
Mexico emphasizes that this interpretation does no t transform the recital into an exception analogous
to general exceptions, but "modifies the meaning of th e substantive obligation in Article 2.1 so that
the discrimination that is prohibited in that Article does not extend to measures meeting the criteria of
the preamble".158 According to Mexico, a measure that m odifies the conditions of competition in the
relevant market to the detriment of an imported pro duct will thus not be prohibited by Article 2.1 if:
(i) the measure is necessary to pursue one of the objectives mentioned in the sixth recital; (ii) the
measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same cond itions prevail; (iii) the measure is not applied
in a manner that would constitute a disguised restric tion on international trade; and (iv) the measure
is otherwise in accordance with the provisions of the TBT Agreement.159
85. Referring to the Appellate Body's jurisprudence under Article XX of the GATT 1994, Mexico
argues that the US "dolphin-safe" labelling provi sions are not necessary for the protection of animal
life or health or for the prevention of deceptive pr actices. Mexico argues, in particular, that the
"exclusive single definition of dolphin-safe" estab lished by the US measure "does not contribute to
the realization of these two objectives through consumer choice". 160 First, according to Mexico, there

154Mexico's other appellant's submission, para. 99.
155Mexico's other appellant's submission, para. 101.
156Mexico's other appellant's submission, para. 103.
157Mexico's other appellant's submission, para. 104.
158Mexico's other appellant's submission, para. 109.
159Mexico's other appellant's submission, para. 111.
160Mexico's other appellant's submission, para. 117.

is "no evidence of 'deceptive practic es'" in connection with the AIDC P label that would need to be
prevented.
161 Mexico also recalls, in this regard, the Panel's finding that "allowing the AIDCP label to
be used in the U.S. market 'may have the poten tial to reduce the possibilities of consumer deception
more than the current US dolphin-safe label'." 162 Second, with respect to the objective of protecting
dolphins through consumer choice, Mexico argues that prohibiting the AIDCP label restricts how
consumers can express their preferences for "dolphi n-safe" tuna products and "limits to a single
definition an objective that, in reality, is much more complex". 163 Mexico concludes that the measure
at issue is therefore "unnecessary" within the meaning of the sixth recital.164
86. With respect to the requirement that a measur e not be applied in a manner that constitutes a
means of arbitrary or unjustifiable discrimination, Mexico argues that the current dispute presents a
factual situation that is "closely similar" to the one in US – Shrimp , because, in that dispute, the
United States was seeking to "coerce" other countries into adopting the United States' approach to the
conservation of turtles. 165 Referring to the Appellate Body's findings in that case, Mexico submits
that the measure at issue in this dispute "unilate rally and extraterritorially impose[s] U.S. fishing
method requirements as a condition for access to the pr incipal distribution channels in the U.S. tuna
products market".166 Mexico further argues that, in this dispute, the United States has established a
"rigid and unbending standard" that does not allow th e extensive measures taken by Mexico to protect
dolphins and other changing cond itions to be taken into account. 167 Mexico emphasizes that, even if
the United States were to find now, or in the futu re, that the dolphin stocks that it deems to be
depleted had fully recovered, the US measure would not allow the definition of "dolphin-safe" to be
amended to accommodate the AIDCP standard. Me xico also argues that the US "dolphin-safe"
labelling provisions are discriminatory because tuna products produced from tuna harvested outside
the ETP can be labelled as "dolphin-safe" "under re laxed compliance standards even though there are
no protections for dolphins outside the ETP". 168 By contrast, tuna products from Mexican
producers—who have taken "extensive and demonstrably highly successful measures to protect
dolphins"—are prohibited from using the label. 169 Furthermore, Mexico refers to the
Appellate Body's statement in US – Shrimp that the United States' failure to engage the appellees in

161Mexico's other appellant's submission, para. 118.
162Mexico's other appellant's submission, para. 11 8 (quoting Panel Report, para. 7.576). (emphasis
added by Mexico)
163Mexico's other appellant's submission, para. 119.
164Mexico's other appellant's submission, para. 120.
165Mexico's other appellant's submission, para. 123.
166Mexico's other appellant's submission, para. 124 (referring to Appellate Body Report, US – Shrimp,
para. 161).
167Mexico's other appellant's submission, para. 127 (referring to Appellate Body Report, US – Shrimp,
para. 165).
168Mexico's other appellant's submission, para. 129.
169Mexico's other appellant's submission, para. 129.

that case in "serious, across the board negotiations with the objective of concluding bilateral or
multilateral agreements for the protection and cons ervation of sea turtles" "bears heavily in any
appraisal of justifiable or unjustifiable discrimination". 170 Mexico submits that, in the present case,
the situation is even more aggravated because th e United States entered into the AIDCP, which has
been extremely successful in protecting dolphins, and then disregarded the standard established by the
AIDCP in maintaining its own unilateral measure.
87. With respect to the requirement that a measu re not be applied in a manner that would
constitute a disguised restriction on international trade, Mexico submits that a measure that constitutes
arbitrary and unjustifiable discrimination also represent s a disguised restriction on international trade.
Moreover, Mexico argues that the US measure, by restricting the information available to
US consumers, interferes with the free operation of consumer choice. This converts "an otherwise
valid consumer choice measure into a disguised restriction on international trade".171
88. With respect to the last phrase of the sixth rec ital, namely, that the measure be otherwise in
accordance with the provisions of the TBT Agreement, Mexico argues that, because the Panel found
that the US "dolphin-safe" labelling provision s are inconsistent with Article 2.2 of the
TBT Agreement, there is no basis on the facts of this di spute "to narrow the interpretation of the
non-discrimination obligations" in Article 2. 1 to take into account the sixth recital. 172 According to
Mexico, the "traditional interpretation" of "no less fa vourable treatment" therefore applies. Hence, if
the US "dolphin-safe" labelling provisions are found to "modify the conditions of competition in the
relevant market to the detriment of Mexican tuna pr oducts, they are inconsistent with Article 2.1 and
are prohibited".173
89. In this respect, Mexico recalls the Panel's findi ng that access to the "dolphin-safe" label is an
advantage on the US market and that the measure at is sue controls access to the label. Mexico further
submits that the evidence before the Panel shows th at most Mexican tuna products do not have access
to the "dolphin-safe" label, while all like US tuna products and most tuna prod ucts of other countries
have access to that label. In addition, Mexico not es the Panel's finding that allowing the AIDCP label
in the US market would provide greater competitive opportunities for Mexican tuna products. For
Mexico, the corollary of this finding is that "pr ohibiting the use of the AIDCP label denies imports
competitive opportunities".
174 On this basis, Mexico contends that it is clear that the
US "dolphin-safe" labelling provisions modify the cond itions of competition in the relevant market to

170Mexico's other appellant's submission, para. 130 (referring to Appellate Body Report, US – Shrimp,
para. 166).
171Mexico's other appellant's submission, para. 134.
172Mexico's other appellant's submission, para. 137.
173Mexico's other appellant's submission, para. 137.
174Mexico's other appellant's submission, para. 139.

the detriment of imported Mexican tuna products and in favour of like tuna products from the
United States and other countries, and thereby violate Article 2.1.
90. Thus, Mexico submits that the Panel could have confined its analysis to finding that access to
the "dolphin-safe" label was an "advantage", th at access to the label was controlled by the
US "dolphin-safe" labelling provisions, and that mo st Mexican tuna products do not have access to
the label, while all or most tuna products from the United States and other countries do have access.
175
Mexico suggests that this would have been a suffici ent basis to conclude that the US measure results
in de facto discrimination. Mexico submits that the Pa nel erred by conducting a detailed analysis of
whether "Mexican tuna products could somehow get access to the label."176 According to Mexico, the
Panel was essentially ruling that, if there is an alte rnative way to obtain the advantage, there is no less
favourable treatment under Article 2.1. Mexico submits that this interpretation goes against
established jurisprudence that "the availability of alternatives to avoid less favourable treatment does
not eliminate the less favourable treatment." 177 Mexico adds that the Panel's interpretation of
Article 2.1 would, in this case, require a devel oping country to give up its natural comparative
advantage and force it to adopt environmentally unsustainable fishing methods.
91. Mexico further alleges that the Panel erred by relying on the Appellate Body report in
Dominican Republic – Import and Sale of Cigarettes to find that the adverse impact of the challenged
measure on Mexican tuna products is "unrelated to the foreign origin of the product". 178 Mexico
submits that the Appellate Body's findings in that case are "readily distingui shable from the facts in
this case". 179 Mexico points out that, in this dispute, the discriminatory effect exists not between
certain producers and importers but between the gr oup of Mexican tuna products overall compared to
the group of like tuna products from the United Stat es and, in the case of Mexico's MFN claims,
between the group of Mexican tuna products and th e group of tuna products from other countries.
Further, the discrimination in this dispute do es not depend upon the characteristics of individual
importers, but rather on the fishing practices of th e fleets that catch the tuna and the canneries that
produce the tuna products for exportation to the United States. Mexico adds that a measure that is
"origin neutral" on its face can violate the nationa l treatment obligation if it has the effect of
modifying the conditions of competition to the de triment of the imported product by denying the
imported product the equality of competitive opportuniti es with a like domestic product in the market

175Mexico's other appellant's submission, para. 142.
176Mexico's other appellant's submission, para. 143. (emphasis added)
177Mexico's other appellant's submission, para. 144 (referring to Panel Report, Canada – Wheat Exports
and Grain Imports, paras. 6.213 and 6.295; and Panel Report, Canada – Autos, para. 10.87).
178Mexico's other appellant's submission, paras. 170 and 172 (referring to Panel Report, para. 7.375, in
turn quoting Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 96).
179Mexico's other appellant's submission, para. 172.

of the importing WTO Member. 180 Mexico emphasizes that, by its very nature, de facto
discrimination occurs when the challenged measure does not, on its face, discriminate based on origin.
Mexico adds that it is only when the rele vant facts are examined as a whole that de facto
discrimination becomes apparent. Mexico concludes that, since the challenged measure uses a market
access restriction "to pressure Mexico and the Me xican fleet to adopt essentially the same dolphin-
safe regime as in force in the United States", the measure " per se target[s] the origin of the tuna
products—i.e., Mexican tuna products". 181 If it did not do so, Mexico submits, the underlying
objective of the US "dolphin-safe" labelling provisions to change Mexico's fishing methods would not
be met.
92. Finally, Mexico claims that the Panel erred in concluding that the adverse impact on Mexican
tuna products is caused by the actions of private act ors. Referring to the Appellate Body report in
Korea – Various Measures on Beef , Mexico argues that the measure at issue, by laying down
exclusive conditions for the use of the "dolphin-saf e" label, restricts the conditions under which the
label may be used and, therefore, also restrict s the nature of the choice that can be made by
US consumers. In particular, Mexico points to the Panel's finding that the measure at issue creates an
exclusive standard to inform consumers about the " dolphin-safety" of tuna products and that there is
no possibility for any alternative definitions of wh at is "dolphin-safe" on the US market (such as
AIDCP "dolphin-safe"), except in compliance with th e exclusive criteria set out in the measure.
According to Mexico, both parties agree that US consumers will make choices based on whether or
not the "dolphin-safe" label is displayed on a tuna product. As a direct consequence of the measure,
US consumers are denied the option of choosing Me xican tuna products that are labelled with the
international AIDCP "dolphin-safe" label. Mexico maintains that, to the extent some element of
private choice is involved, it does not relieve the Un ited States' responsibility to comply with its non-
discrimination obligations given the "undeniable impact" of the US measure on the consumers'
choice.
182 Mexico concludes that it is the government intervention in the form of a technical
regulation that adversely affects the conditions of co mpetition in the relevant market to the detriment
of imported products, and not the actions of private parties.
(b) Article 11 of the DSU
93. In the event that the Appellate Body finds that the Panel did not err in its interpretation and
application of Article 2.1 of the TBT Agreement, Mexico claims that the Panel acted inconsistently
with Article 11 of the DSU in failing to consid er evidence put forward by Mexico that it was

180Mexico's other appellant's submission, para. 174.
181Mexico's other appellant's submission, para. 179.
182Mexico's other appellant's submission, para. 186.

"impossible" for the Mexican tuna industry to change its fishing practices to adapt to the
US "dolphin-safe" labelling provisions.
183 Mexico explains that a change in its fishing practices or
fishing areas would make the Mexican tuna industry unprofitable and unable to compete. According
to Mexico, the only way for the industry to remain viable is by fishing mature yellowfin tuna in
association with dolphins within its exclusive economic zone and adjacent waters. In support of its
position, Mexico points to evidence provided by Mexico to the Panel "in which the three major
companies making up the Mexican tuna industry clearly state that it is impossible to change their
fishing practices or fishing area due to financia l, administrative, environmental and practical
constraints".184 According to Mexico, this evidence also "confirms" that the Mexican tuna industry's
principal concern is not the adaptation costs but the impossibility of adapting to the US measure.185 In
Mexico's view, the Panel should have properly we ighed the costs that the Mexican industry would
have to bear in order to obtain access to the advant age provided by the US "dolphin-safe" label. For
Mexico, this is relevant for evaluating whether th e suggested approach is feasible taking into account
the particular circumstances of the Mexican fleet.
94. Mexico also claims that, in finding that it w as not clear that the AIDCP label had value to
retailers and that retailers had si milar perceptions to canneries, the Panel acted incons istently with
Article 11 of the DSU because it omitted from its an alysis relevant factual findings, evidence, and
arguments. In particular, Mexico takes issue with what it describes as the Panel's "view that there was
evidence that a dolphin-safe label associated with no setting on dolphins had value in the U.S. market
but the evidence was less clear that the AIDC P dolphin-safe label, which allows for setting on
dolphins under the strict requirements of the AIDCP, has value in that market." 186 Additionally,
Mexico submits that the Panel's analysis is "faulty " because it is based primarily on the perceptions of
canneries, who are consumers of t una and producers of tuna products. 187 Mexico argues that the
perceptions of canneries must be distinguished fro m those of retailers because: (i) canneries and
retailers operate at different levels of trade; (ii) retailers do not label tuna products themselves, but
rather receive tuna products already labelled by th e canneries; and (iii) retailers do not have a legal
need to know precisely what the label means; rather , their concern is to have tuna products that can
be lawfully labelled as "dolphin-safe". 188 Mexico further alleges that the Panel acted inconsistently
with Article 11 of the DSU by failing to address Mexico's argument that allowing the use of the
AIDCP "dolphin-safe" label will enable Mexico to fully inform US consumers and promote its tuna

183Mexico's other appellant's submission, para. 149.
184Mexico's other appellant's submission, para. 150 (referring to Panel Exhibits MEX-86(A),
MEX-86(B), and MEX-86(C) (BCI)).
185Mexico's other appellant's submission, para. 151.
186Mexico's other appellant's submission, para. 161.
187Mexico's other appellant's submission, para. 162.
188Mexico's other appellant's submission, para. 162.

products and the sustainability of its fishing pr actices to rebalance the competitive opportunities and
that this in turn would "unlock latent de mand" in the market for those tuna products. 189 Finally,
Mexico contends that the Panel's conclusion is inc onsistent with evidence indicating that some of the
major US chains have expressly indicated that, if the tuna product at issue qualified to be labelled
"dolphin-safe", they would sell it, and that a comp any's inability to place the "dolphin-safe" label on
the cans has directly affected its ability to sell the Mexican brand in the United States.
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement
95. Mexico raises two claims in its conditional app eal of the Panel's finding under Article 2.2 of
the TBT Agreement . Each of these claims is conditional upon the Appellate Body reversing the
Panel's finding that the measure at issue is inconsistent with Article 2.2 of the TBT Agreement. First,
Mexico requests the Appellate Body to reverse the Pa nel's intermediate finding that the United States'
objective of 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 is a legitimate
objective, and to find, instead, that it is not a leg itimate objective within the meaning of Article 2.2 of
the TBT Agreement . In the alternative, Mexico requests the Appellate Body to confirm that the
US "dolphin-safe" labelling provisions are inconsistent with Article 2.2 of the TBT Agreement based
on the Panel's finding that the US "dolphin-safe" labelling provisions did not fulfil the United States'
objectives.
96. With respect to its first claim, Mexico submits that the Panel formulated the legal test of
whether an objective is legitimate within the meaning of Article 2.2 of the TBT Agreement as whether
the "objective[] 'go[es] against the object and purpose'" of the TBT Agreement .190 According to
Mexico, this legal test is incorrect, because it allo ws for "coercive objective[s]" creating barriers to
trade to be considered legitimate. Mexico fu rther alleges that the Panel erred in finding the
United States' dolphin protection objective to be a legitimate objective. 191 The list of examples of
legitimate objectives in Article 2.2 of the TBT Agreement informs the interpretation of the term
"legitimate objective" in that provision. None of the listed objectives includes language similar to "by
ensuring that the US market is not used to en courage". These examples do not contemplate a
"coercive and trade restrictive objective". 192 The United States' dolphin protection objective,
however, is a "coercive objective", because its purpose is to "coerce" another WTO Member to
change its practices to comply with the unilateral policy of the United States.

189Mexico's other appellant's submission, para. 166.
191Mexico's other appellant's submission, para. 267.
192Mexico's other appellant's submission, para. 271.

97. Moreover, Mexico alleges that the dolphi n protection objective is unnecessary, and
constitutes a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Mexico submits that the Panel's refere nces to the Appellate Body reports in US – Gasoline and
US – Shrimp do not support the proposition for which the Panel cited them, namely, that Members can
identify whatever objectives th ey wish. Yet, Mexico asserts that the situation in US – Gasoline is
"closely analogous" to the situation in the present case.
193 In US – Gasoline, the measure at issue was
found to be inconsistent with Article III:4 of the GATT 1994 a nd could not be justified under
Article XX, because it constituted a "disguised restri ction on trade" and "unjus tifiable discrimination"
inconsistent with the chapeau of Article XX. Mexi co asserts that the basis of these findings of breach
was that the United States had acted unilaterally, wi thout first attempting to achieve its goal through
cooperation with the affected Members. For Mexico, the situation in the present case is similar to that
in US – Gasoline , in that the United States disregarded a multilateral agreement that addresses the
very same subject as the measure at issue, namely , the protection of dolphins and the prerequisites for
labelling tuna products as "dolphin-safe".194
98. In addition, Mexico asserts that the fi fth recital of the preamble of the TBT Agreement refers
to ensuring that technical regulations do not create unnecessary obstacles to international trade. Yet, a
coercive and trade restrictive objective can only be "fulfilled" within the meaning of Article 2.2 by a
measure that is coercive and trade restrictive a nd, thus, such obstacles to trade would always be
"necessary". In the face of such an objective, it would be difficu lt to give meaning to the term
"unnecessary obstacles to trade" in the preamble. Ho wever, Mexico considers it important that this
language in the preamble be given meaning, because otherwise WTO Members could define the
objectives of their technical regulations so narrowly, and with such high levels of protection, that no
other alternative measure could fulfil those objectives.
99. With respect to its alternative claim, Mexico alleges that the Panel erred in proceeding to
examine whether there was a less trade-restrictive alternative measure after it had found that the
measure at issue could, at best, only partially fulfil the two objectives. For Mexico, it is not possible
to find that there is a less tr ade-restrictive alternative measure that fulfils the objectives when the
US measure itself does not fulfil the objectives. In addition, it would be impossible to take account of
the risks non-fulfilment would create if, in fact, no n-fulfilment already exists with the measure at
issue. Mexico alleges that, upon concluding that the US "dolphin-safe" labelling provisions did not

193Mexico's other appellant's submission, para. 275.
194Mexico's other appellant's submission, para. 275 (referring to Appellate Body Report,
US – Gasoline, p. 25, DSR 1996:1, 3, at 23).

fulfil the two objectives, the Panel's analysis s hould have ended and it s hould have found that the
US "dolphin-safe" labelling provisions were inconsistent with Article 2.2.195
3. Article 2.4 of the TBT Agreement and the Effectiveness and Appropriateness
of the AIDCP Standard as a Means to Fulfil the United States' Objectives
100. Mexico appeals the Panel's finding that the AI DCP standard would be an ineffective or
inappropriate means for the fulfilment of the le gitimate objectives pursued by the United States. 196
Mexico submits that there is "some flexibility … between the standard and the fulfillment of the
legitimate objectives" and that the "necessary degree of fulfillment" will depend on the individual
facts and circumstances of each case. 197 Mexico further submits that, in this dispute, "the fact that the
U.S. dolphin-safe labelling provisions do not themselves completely fulfill either of the two legitimate
objectives … is relevant to the determination of whether the AIDCP standard is 'ineffective or
inappropriate'."198
101. Mexico clarifies that the relevant international standard that it has identified is "the definition
of 'dolphin safe' established by the AIDCP's 'Resolution to Establish Procedures for AIDCP Dolphin
Safe Tuna Certification'". This definition, in turn, incorporates by reference the definition of
"dolphin-safe" from the AIDCP's "Resolution to Adopt the Modified System for Tracking and
Verification of Tuna".
199 The definition provides that "[d]olphin safe tuna" is "tuna captured in sets in
which there is no mortality or serious injury of dolphins", and "[ n]on-dolphin safe tuna" is "tuna
captured in sets in which mortality or serious injury occurs". 200 Mexico stresses that it "expressly
defined 'AIDCP standard' to mean this definition".201
102. Mexico argues that the Panel erred in not ev aluating whether the AIDCP standard would be
an effective and appropriate means to fulf il the United States' objectives in fisheries outside the ETP.
Mexico recalls the Panel's statement that "to the ex tent that the US objectives are not limited to the
ETP, and that the AIDCP standard addresses fishi ng conditions in the ETP and not in any other
fishery, the AIDCP standard alone would not have the capacity to address US concerns in relation to

195Mexico's other appellant's submission, paras. 279-287.
196Mexico's other appellant's submission, para. 232 (referring to Panel Report, paras. 7.740 and 8.1(c))
and para. 260.
197Mexico's other appellant's submission, para. 234.
198Mexico's other appellant's submission, para. 235.
199Mexico's other appellant's submission, para. 237 (referring to AIDCP Resolution to Adopt the
Modified System for Tracking and Verification of Tuna (20 June 2001) (Panel Exhibit MEX-55); and AIDCP
Resolution to Establish Procedures for AIDCP Dolphin Safe Tuna Certification (20 June 2001) (Panel
Exhibit MEX-56)).
200Mexico's other appellant's submission, para. 237 (quoting Panel Exhibit MEX-55, supra,
footnote 199).
201Mexico's other appellant's submission, para. 238 (referring to Mexico's first written submission to

the manner in which tuna is caught beyond the ETP."
202 Mexico submits that there is "nothing
inherent about the definition 'captured in sets in which there is no mortality or serious injury of
dolphins' that is limited in applicability to the ETP." 203 For Mexico, it appears that the Panel was
referring to the measures taken by the AIDCP to im plement and enforce the AIDCP's requirements.
In Mexico's view, the fact that these measures "hav e not yet been implemented outside the ETP" does
not justify the conclusion that the AIDCP st andard would be ineffective outside the ETP. 204 Mexico
argues that the Panel appears to have "confused" th e definition of "dolphin-safe" with the means for
verifying compliance with the applicable definition of "dolphin-safe".205
103. Mexico further submits that, even assuming th at the AIDCP enforcement mechanisms were
relevant, the Panel "did not explain" why implem enting the same enforcement mechanisms outside
the ETP would not address the United States' concern of protecting dolphins. In Mexico's view, the
Panel's statement that it could not assume that a regime modelled on the AIDCP would lead to the
achievement of the United States' objectives outside the ETP contradicts its earlier finding regarding
the "pertinence" of the AIDCP's independent observer programme for other fisheries.206
104. Mexico contends that the Panel's "limited approach" in analyzing the effectiveness and
appropriateness of the AIDCP "dolphin-safe" defini tion led it to ignore evidence showing that most
tuna products sold in the US market contain tuna sourced from the WCPO. 207 As Mexico sees it, this
evidence, reviewed by the Panel under Article 2.2 of the TBT Agreement, would have shown that "the
potential effectiveness and appropriateness of applyi ng the definition of dolphin-safe of the AIDCP
standard to non-ETP tuna products was crucial to a proper evaluation of the Article 2.4 claim." 208 In
addition, Mexico alleges that the Panel's failure to evaluate whether the AIDCP definition of
"dolphin-safe" would be effective and appropriate in fulfilling the United States' objectives outside the
ETP was inconsistent with the Panel's obligation un der Article 11 of the DSU to make an objective
assessment of the matter before it.
105. Turning to the Panel's evaluation of whether the AIDCP standard would be effective and
appropriate for the fulfilment of the United States' objectives inside the ETP, Mexico faults the Panel
for applying an "incorrect legal test" and cond ucting an "inconsistent a nd incomplete" analysis. 209
With regard to the consumer information objective, Mexico takes issue with the Panel's finding that

203Mexico's other appellant's submission, para. 243.
204Mexico's other appellant's submission, para. 243.
205Mexico's other appellant's submission, para. 243.
206Mexico's other appellant's submission, para. 244 (referring to Panel Report, para. 7.706).
207Mexico's other appellant's submission, para. 245.
208Mexico's other appellant's submission, para. 246.
209Mexico's other appellant's submission, para. 251.

the AIDCP standard "does not convey 'any informa tion on the fishing method that has been used … ,
or on the impact [that] such method may have on dolphins'". 210 Mexico submits that this statement
"incorrectly" describes the AIDCP standard, sin ce "[b]y its express terms and as reflected in its
implementation, the AIDCP standard is not limited in application to any specific fishing method."211
106. Mexico further alleges that the Panel did not properly assess whether the AIDCP standard
would be "ineffective". Mexico submits that for over 90 per cent of the tuna products sold in the
US market the AIDCP standard would accomplish the legitimate objectives pursued by the
United States "in a more effective manner than the U.S. dolphin-safe labelling provisions". 212 I n
Mexico's view, it would be illogical to conclude th at the AIDCP standard would be ineffective in
fulfilling the consumer information objective when it is "overall much more effective" than the
measure at issue in fulfilling this objective.213
107. With regard to the dolphin protection objective, Mexico recalls what it views as the Panel's
finding in the context of Article 2.2 of the TBT Agreement , namely, that the US measure does not
fulfil this objective and in fact undermines it. 214 Mexico argues that, because the Panel "chose not to
evaluate the potential application of the AIDCP stan dard to tuna products made from tuna harvested
outside the ETP, it did not address the inconsis tency arising from its prior finding that the
U.S. dolphin-safe label is ineffective in fulfilling the U.S. objective outside the ETP." 215 M e x i c o
submits that "if the AIDCP standard is more effective at fulfilling the U.S. objective for over
90 percent of the tuna products sold in the U.S. market, … the only logical conclusion is that the
AIDCP standard overall would be effec tive at fulfilling the U.S. objective." 216 Finally, Mexico
submits that the AIDCP standard would also be "app ropriate" to fulfil the United States' objectives.
In particular, Mexico claims that "the United States has already determined that the 'no dolphins killed
or seriously injured' standard is appropriate for the ETP". 217 Hence, Mexico suggests that "certainly it
is also appropriate for application outside the ETP."218
4. The Panel's Exercise of Judicial Economy
108. Mexico argues that the Panel exercised false j udicial economy and acted inconsistently with
its obligations under Article 11 of the DSU by declin ing to rule on Mexico's claims under Articles I:1

211Mexico's other appellant's submission, para. 253.
212Mexico's other appellant's submission, para. 256. (original emphasis)
213Mexico's other appellant's submission, para. 256.
214Mexico's other appellant's submission, para. 257 (referring to Panel Report, paras. 7.597 and 7.598).
215Mexico's other appellant's submission, para. 258.
216Mexico's other appellant's submission, para. 258.
217Mexico's other appellant's submission, para. 259.
218Mexico's other appellant's submission, para. 259.

and III:4 of the GATT 1994. Mexico points out that, although Article 2.1 of the TBT Agreement and
Articles I:1 and III:4 of the GATT 1994 deal with non-discrimination obligations, each of them is
different in scope and application. Referring to the panel report in US – Upland Cotton , Mexico
further argues that the obligations in Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of the
TBT Agreement apply simultaneously to the US measure and should be read cumulatively. Thus, after
finding no violation of Article 2.1 of the TBT Agreement, the Panel should have continued with an
analysis of Mexico's claims under the GATT 1994. Referring to the Appellate Body report in
Australia – Salmon, Mexico further argues that a panel cannot exercise judicial economy "where only
a partial resolution of a dispute would result'".
219
109. Mexico further argues that the Panel's finding that the challenged measure is inconsistent with
Article 2.2 of the TBT Agreement is not sufficient to provide a po sitive solution to the dispute with
respect to Mexico's discrimination claims under the GATT 1994. Mexico recalls that in US – Poultry
(China) the panel declined to limit its examination to the SPS Agreement and a claim under Article XI
of the GATT 1994 and proceeded to examine Ch ina's claim under Article I of the GATT 1994. 220
Similarly, in US – Clove Cigarettes , the panel stated that, if it did not make a finding of violation
under Article 2.1 of the TBT Agreement, it would examine the alternative claim under Article III:4 of
the GATT 1994. 221 According to Mexico, these disputes re semble the present case where the Panel
should have ruled on Mexico's claims under Artic les I:1 and III:4 of the GATT 1994. Mexico also
requests the Appellate Body to rule that the United States acted inconsistently with these provisions.
110. In support of its position that the US "dolphin- safe" labelling provisions are inconsistent with
Article I:1 of the GATT 1994, Mexico argues that tuna products from Mexico, the United States, and
other countries were correctly found by the Panel to be "like products". Mexico further posits that the
advantage of access to the label is not granted "immediately and unconditionally" to the like product
of Mexico, since the US "dolphin-safe" labelling provi sions make the advantage (that is, the right to
use the "dolphin-safe" label) subject to conditions with respect to the situation or conduct of Mexico
(that is, fishing methods for tuna). In Mexico's view, these conditions discriminate de facto against
Mexican tuna products in favour of tuna products from other countries.
111. With respect to Article III:4 of the GATT 1994, Me xico recalls that the products at issue in
the present dispute were found to be "like products " and submits that the US measure constitutes a
law, regulation, or requirement within the meaning of Article III:4. Mexico further contends that the

219Mexico's other appellant's submission, para. 204 (referring to Appellate Body Report,
Australia – Salmon, para. 223; and Panel Report, EC – Sardines, paras. 7.148-7.152).
220Mexico's other appellant's submission, para. 205 (referring to Panel Report, US – Poultry (China) ,
paras. 6.28 and 6.34).
221Mexico's other appellant's submission, para. 205 (referring to Panel Report, US – Clove Cigarettes ,
para. 7.16).

measure at issue "affects" the internal sale, offeri ng for sale, purchase, transportation, distribution, or
use of tuna products and tuna, since participants in the US tuna and tuna product market are highly
sensitive to issues related to dolphin mortality and wi ll make decisions on whether or not to purchase,
offer for sale, distribute, process, or use tuna produc ts on the basis of whether they are designated as
"dolphin-safe" or, in the case of tuna, can be designated as "dolphin-safe" after processing. Finally,
referring to its arguments regarding less favourable treatment in the context of Article 2.1 of the
TBT Agreement, Mexico claims that, for th e same reasons, the US measu re accords less favourable
treatment to imported Mexican tuna compared to that accorded to like US tuna products.
D. Arguments of the United States – Appellee
1. Consistency of the Measure at Issue with Article 2.1 of the TBT Agreement
112. The United States requests the Appellate Body to reject Mexico's other appeal of the Panel's
finding that the US "dolphin-safe" labelling provisions are not inconsistent with Article 2.1 of the
TBT Agreement. According to the United States, the Panel properly interpreted and applied
Article 2.1 in concluding that the measure at i ssue does not accord Mexican tuna products less
favourable treatment than US tuna products and tuna products originating in other countries.
(a) Interpretation and Application of Article 2.1 of the TBT Agreement
113. The United States disagrees with Mexico's asserti on that the Panel erred in its interpretation
of the phrase "treatment no less favourable" in Article 2.1. According to the United States, the Panel's
interpretation is fully consistent with the ordinary meaning of the term, in both the immediate context
of Article 2.1 and in the context of similar provi sions in other WTO agreements, as well as the object
and purpose of the TBT Agreement.
114. In the United States' view, "an inquiry into whether a measure provides 'less favourable
treatment' requires a determination of whether a measure accords different treatment to imported
products versus domestic products and whether it does so based on origin." 222 According to the
United States, "[t]he notion that the different treatme nt must be based on origin (as opposed to origin-
neutral criteria) is evident from Article 2.1 itself", as well as relevant cont ext provided by that of
Article III of the GATT 1994 and the TBT Agreement .223 The United States quotes the
Appellate Body's statement in EC – Asbestos that "[t]he broad and funda mental purpose of Article III

222United States' appellee's submission, para. 32 (referring to Panel Report, Brazil – Retreaded Tyres ,
paras. 7.420 and 7.421; Panel Report, Canada – Autos , paras. 7.179-7.182; Panel Report, Canada – Wheat
Exports and Grain Imports , para. 6.164; Appellate Body Reports, China – Auto Parts , paras. 192-195; Panel
Report, India – Autos , paras. 7.199-7.202; Appellate Body Report, Korea – Various Measures on Beef ,
paras. 143 and 144; and Panel Report, Mexico – Taxes on Soft Drinks, paras. 8.120-8.122). (original emphasis)

is to avoid protectionism in the applicati on of internal tax and regulatory measures."
224 T h e
United States argues that, given the "similar natu re of the obligations" in Article III:4 of the
GATT 1994 and Article 2.1 of the TBT Agreement, the "broad and fundamental purpose" of Article
2.1 may also be considered as avoiding protectioni sm in the application of technical regulations. 225
For the United States, the fact that Article 2.1 is part of the TBT Agreement is also relevant context.
The United States notes in this regard that standards, technical regulations, and conformity assessment
procedures, by definition, draw distinctions am ong products. According to the United States, this
supports the view that the types of measures with wh ich Article 2.1 is concerned are those that accord
different treatment based on origin, not those that provide different treatment based on factors other
than origin (such as whether a product possesses charact eristics that may be harmful to humans or the
environment or is produced in a manner that would ma ke a particular label deceptive or misleading).
For the United States, the language in the sixth recital of the preamble of the TBT Agreement confirms
this interpretation.
115. The United States acknowledges that the WTO agreements "do not specify a precise
approach" to the question when the treatment a ccorded to imported products is "less favourable".
226
However, in previous cases addressing this question in the context of Article III of the GATT 1994,
panels and the Appellate Body have "typically assessed" whether a measure "modifies the conditions
of competition to the detriment of like imported products". 227 In the United States' view, "these cases
reflect the fact that, even if a measure modifies conditions of competition, it does not provide 'less
favourable treatment' within the meaning of Article 2.1 if it does so for reasons other than origin."228
According to the United States, this "critical elemen t" of the analysis is ab sent from Mexico's theory
of less favourable treatment. 229 By contrast, the Panel's analysis of "less favourable treatment" was
"fully consistent" with this framework. 230 The United States notes, in particular, that the Panel's
assessment focused on whether any different treatme nt was accorded to Mexican tuna products under
the measure and whether the difference was attribut able to origin, and that the Panel "rejected
Mexico's argument on both counts".231

224United States' appellee's submission, para. 33 (quoting Appellate Body Report, EC – Asbestos ,
para. 97, in turn quoting Appellate Body Report, Japan – Alcoholic Beverages II , p. 16, DSR 1996:1, 97,
at 109).
228United States' appellee's submission, para. 35 (referring to Panel Report, EC – Approval and
Marketing of Biotech Products , paras. 7.2514 and 7.2515; and Appellate Body Report,
Dominican Republic – Import and Sale of Cigarettes, para. 96). (original emphasis)

116. The United States dismisses Mexico's criticism of the Panel's "denial of access to an
advantage" test for whether "treatment no less favour able" exists. The United States submits that, to
the extent that the Panel referred to "denial of access", it did so to address what Mexico itself
described as "the factual basis" for its claim under Article 2.1, namely, that Mexican tuna products are
"prohibited" from using the "dolphin-safe" label and are therefore denied competitive opportunities as
compared to like products from the United States and other countries. 232 Moreover, argues the
United States, the Panel's discussion of the existence of an "advantage" does not indicate a failure to
consider conditions of competition in its analysis b ecause, in several parts of its analysis, the Panel
explicitly referred to conditions of competition. 233 The United States further contends that nothing in
the Panel's analysis suggests that it viewed l ess favourable treatment as arising only when an
"absolute prohibition or bar" exists. 234 Finally, the United States argu es that the ability of Mexican
tuna products to qualify for the US "dolphin-safe" label through other means "bears on the threshold
question of whether different treatment is attributable to origin", which Mexico failed to establish.235
117. Turning to Mexico's proposed interpretation of the phrase "treatment no less favourable" in
Article 2.1 of the TBT Agreement , the United States asserts that Mexico's understanding of the
concept is "flawed". 236 As the United States sees it, Mexico asks, under the guise of "context", that
the Appellate Body "read into the text of Article 2. 1 an entire set of obligations that are not there". 237
Mexico's suggestion that the Panel should have eval uated in the light of the sixth recital whether the
measure is "necessary, is applied in a manner wh ich would constitute a means of arbitrary or
unjustifiable discrimination between countries where th e same conditions prevail, or is applied in a
manner which would constitute a disguised restrict ion on trade", represents, in the United States'
view, a "misuse of context" and has no basis in the text of Article 2.1. 238 The United States also
submits that Mexico equates a conditions-of-compe tition analysis with the concept of "equality of
competitive opportunities". 239 To the United States, this reflects Mexico's view that the non-
discrimination obligation in Article 2.1 seeks to en sure not only that a measure does not modify the
conditions of competition to the de triment of imports, but that a measure also preserves "equality of

232United States' appellee's submission, para. 37 (referring to Mexico's other appellant's submission,
paras. 74, 75, 143, and 144; and Panel Report, para. 7.279, in turn referring to Mexico's second written
234United States' appellee's submission, para. 39 (referring to Mexico's other appellant's submission,
para. 143).
238United States' appellee's submission, para. 48 (referring to Mexico's other appellant's submission,
para. 111).
239United States' appellee's submission, para. 50 (referring, for example, to Mexico's other appellant's
submission, paras. 96 and 97).

competitive opportunities" for all products.
240 The United States submits that this interpretation does
not comport with how prior panel and Appellate Body reports have applied a conditions-of-
competition analysis, as well as with the terms of Article 2.1.
118. Finally, the United States submits that Mexico's interpretation would create a "serious
obstacle" for legitimate regulatory action. 241 The United States points out that it is impossible for a
Member to know in advance the precise costs th at a measure will impose on each producer in every
other Member, and that it would be "nearly impossibl e" to calibrate a measure such that it does not
have a greater impact on one or another Member's products relative to its own or other Members. 242
According to the United States, under Mexico's inte rpretation, Members would not be able to adopt
origin-neutral technical regulations without breach ing their non-discrimination obligations "unless
they were able to 'justify' the measure under Mexico's quasi-Article XX analysis." 243 F o r t h e
United States, this would be "at odds" with the TBT Agreement 's approach to respecting Members'
legitimate objectives, since the TBT Agreement does not limit the legitimate objectives that a Member
may pursue through technical regulations. 244 By contrast, Mexico's interpretation would prevent
Members from adopting technical regulations except to fulfil the limited number of objectives
specified in the sixth recital of the preamble of the TBT Agreement.
119. The United States rejects Mexico's assertion th at the Panel erred in concluding that the
adverse impact felt by Mexican tuna products in the US market is the result of factors or
circumstances unrelated to the foreign origin of the product. The United States argues that it is not the
Panel, but Mexico, that misconstrues th e findings of the Appellate Body in Dominican Republic –
Import and Sale of Cigarettes . The United States agrees with Mexico that discrimination in this
dispute does not depend upon the characteristics of individual importers but, rather, on the fishing
practices of the fleet that caught the tuna and the canneries that produced the tuna products for
exportation to the United States. According to the United States, this is "precisely the argument that,
based on the facts before it, left the Panel unpersuaded" 245, since Mexico did not provide sufficient
evidence to demonstrate that the fishing methods used by a country's fleet "correlated" to the origin of
that country's tuna products. 246 The United States also disagrees with Mexico's assertion that the
Panel's interpretation is "somehow at odds with the notion that discrimination may be de facto as well

246United States' appellee's submission, para. 86 (referring to Panel Report, paras. 7.302-7.358).

as de jure ".247 According to the United States, the Panel fully understood the notion and ambit of
de facto discrimination. Yet, the fact that some imported products may fall within the group of like
products that are subject to different treatment that may be less favourable is not evidence that a
measure accords less favourable treatment to imported products as compared to like domestic
products, particularly where there is evidence that th e different treatment is not based on origin. The
United States finds support for its position in the Appellate Body report in EC – Asbestos, noting that
"distinctions based on criteria other than origin are not distinctions that accord less favourable
treatment … and neither Article III:4 nor Article 2.1 prohibit such distinctions."
248
120. The United States further argues that Mexico misinterprets and misapplies the Appellate
Body's findings in Korea – Various Measures on Beef when it claims that the Panel erred in
concluding that the adverse impact is caused by priv ate actors, rather than th e measure at issue. The
United States submits that, unlike the measure in Korea – Various Measures on Beef , the
US "dolphin-safe" labelling provisions do not "requi re retailers to choose between … tuna products
that are labeled dolphin-safe and those that are not or that contain tuna caught by setting on dolphins
and those that do not." 249 Instead, any decision to sell one or the other is "purely" the choice of
private actors. 250 Recalling the Panel's finding that there is a preference in the US market for
"dolphin-safe" tuna products, the United States argues that the preference of private actors for
"dolphin-safe" tuna products cannot form the basis fo r concluding that the measure at issue modifies
the conditions of competition because "[t]he limite d demand for non-dolphin safe tuna products is a
result of preferences of market operators not the U.S. measure." 251 The United States agrees with
Mexico that the measure at issue restricts the op tion of selling tuna products labelled "dolphin-safe"
that contain tuna caught by setting on dolphins. Ho wever, it argues that this is not evidence that
"establishes competitive conditions that are less favorable for imported products".252 According to the
United States, "any change the U.S. measure in troduced regarding the conditions under which tuna
products compete is not one that modified the cond itions of competition to the detriment of imported
products or tuna products origin ating in some countries as compared to others", since "all tuna
products compete under the same conditi ons", irrespective of their origin. 253 In addition, the
United States asserts that Mexico confuses the Panel's conclusion that the measure accords an
advantage in the form of access to the label with th e question of whether the US measure accords that

247United States' appellee's submission, para. 87 (referring to Mexico's other appellant's submission,
para. 174).
248United States' appellee's submission, para. 89 (referring to Appellate Body Report, EC – Asbestos ,
para. 100).

advantage to Mexican tuna products. The United St ates agrees with the Panel's finding that the
measure at issue does not deny the advantage to Mexican tuna products.
(b) Article 11 of the DSU
121. The United States requests the Appellate Body to dismiss Mexico's argument that the Panel
failed to consider and take into account evidence put forward by Mexico that it was impossible for the
Mexican tuna industry to change its fishing practi ces to adapt to the US measure. The United States
asserts that the Panel did consider and take into account the evidence regarding the adaptation costs
incurred by Mexican producers and therefore did not fail to make an objective assessment of the
matter as required by Article 11 of the DSU.
254 The United States notes that the Panel summarized
Mexico's arguments on this issue. 255 Moreover, the United States contends that the Panel exhibits on
which Mexico relies do not stand for the proposition that it is impossible for Mexican producers to
meet the conditions for labelling tuna products "dolphin-safe". 256 The United States points out that
the affidavits contained in the Panel exhibits c over the same points regarding costs associated with
fishing for tuna using techniques other than setting on dolphins that the Panel summarized in its
Report.
257 For the United States, a panel fails to make an objective assessment of the facts if it
wilfully disregards or distorts the evidence before it or makes affirmative findi ngs that lack a basis in
the evidence. The fact that the Panel, having cons idered the evidence, did not conclude that it would
be impossible for Mexican producers to meet the la belling conditions does not, in the United States'
view, amount to a failure of the Panel to assess the matter in an objective manner.
122. In addition, the United States asserts that Mexico disregards the Panel's finding that not only
is it possible for Mexican producers to adapt to catching tuna in a manner that would give them access
to the US "dolphin-safe" label, but also that Mexi can producers already catch tuna in a manner that
makes them eligible for the label. The United States recalls the Panel's observations that a part of the
Mexican fleet already catches tuna by methods other than setting on dolphins. 258 The United States
also asserts that Mexico's arguments ignore the f act that the measure at issue does not require a
nation's entire shipping fleet to completely abandon the practice of setting on dolphins in order to gain
access to the label. For the United States, the Pane l's finding that Mexican producers could choose to

255United States' appellee's submission, paras. 59 and 60 (referring to Panel Report, paras. 7.335-7.340,
and 7.343).
256United States' appellee's submission, para. 61 (referring to Panel Exhibits MEX-86(A), MEX-86(B),
and MEX-86(C) (BCI)).
257United States' appellee's submission, para. 61 (referring to Panel Report, paras. 7.336-7.340; and
Mexico's response to Panel Question 38, paras. 84-88).
258United States' appellee's submission, para. 63 (referring to Panel Report, paras. 7.313-7.317).

use tuna harvested by vessels flagged to other nati ons whose fleets do not set on dolphins, shows that
the costs Mexico cites with respect to modifying fishing techniques or location could be avoided.
123. Contrary to Mexico's view, the United States argues that the Panel did not fail to consider
evidence regarding retailer preferences. The Panel evaluated the evidence regarding retailer
preferences and concluded that the evidence did not support the conclusion that retailers would
purchase tuna products that contained tuna caught by setting on dolphins if they could be labelled
"dolphin-safe".259 According to the United States, the Pane l considered the affidavits submitted by
Mexico, and cited evidence that retailers are con cerned with consumer acceptance of tuna products,
and not with whether the product can lega lly be labelled "dolphin-safe" or not. 260 Thus, the
United States argues that, contrary to Mexico's assertion, the Panel did not rely solely upon the
perceptions of canneries to reach its conclusion regarding retailers' preferences. Therefore, the
United States asserts that the Panel did not act inconsistently with Article 11 of the DSU.
124. Regarding Mexico's claim that the Panel faile d to properly assess the "value" of the AIDCP
label on the US market, the United States contends th at the findings and evidence Mexico cites do not
support its contention that the AIDCP label has valu e in the US market. The United States submits
that the mere existence of the measure at issue does not support Mexico's position. This is so because
the reason for prohibiting the use of the AIDCP la bel on tuna products containing tuna caught by
setting on dolphins is not that the AIDCP label has value, but because allowing its use on such
products would be misleading.
125. The United States rejects Mexico's argument that the Panel failed to consider that there could
be "latent demand" for tuna products containing tuna caught by setting on dol phins and labelled with
the AIDCP label.261 The United States begins by noting that Mexico cites no evidence in this regard,
and relies only upon past Appellate Body reports. These Appellate Body reports cited by Mexico are
distinguishable from the situation at hand because th e measure at issue does not affect consumers'
ability to purchase tuna products. 262 As the United States sees it, what affects consumer and retailer
demand for Mexican tuna products is whether the tuna is "dolphin-safe", and not where the tuna
product originates.263 Thus, unlike in Philippines – Distilled Spirits , there is no basis for the Panel to
have considered that there might be any "latent de mand" for Mexican tuna products that contain tuna
caught by setting on dolphins. Furthermore, for the United States, the ev idence before the Panel

261United States' appellee's submission, para. 79 (referring to Mexico's other appellant's submission,
paras. 166 and 167).
263United States' appellee's submission, para. 81 (referring to Panel Report, paras. 7.360, 7.364, 7.366,
and 7.367).

indicates the strong preference of US market operato rs for tuna products that do not contain tuna
caught in association with dolphins, and does not s upport the conclusion that market operators would
accept such tuna products if they could bear the AIDCP label. Therefore, it is not the measure at issue
but market operators that are responsible for the absence of Mexican tuna products in major
distribution channels. Consequently, the United States requests the Appellate Body to reject Mexico's
claim that the Panel acted inconsistently with its obligations under Article 11 of the DSU in assessing
the "value" of the AIDCP label.
264
2. Consistency of the Measure at Issue with Article 2.2 of the TBT Agreement
126. The United States requests the Appellate Body to reject Mexico's conditional appeal of the
Panel's findings regarding Article 2.2 of the TBT Agreement. With respect to Mexico's first ground of
appeal, the United States argues that the Panel corr ectly interpreted and applied the term "legitimate
objective" in Article 2.2 to the United States' do lphin protection objective. The United States
contends that the Panel did not formulate a "leg al test" for determining whether a measure is
legitimate based on whether the objectives of the m easure "go against the object and purpose of the
TBT Agreement".265 Rather, it reviewed several factors re levant to whether the second objective of
the US measure is "legitimate". The Panel found that the protection of dolphins may be understood as
intended to protect animal life or health or the environment. When the Panel stated that the
United States' objective "do[es] not go against the object and purpose of the TBT Agreement", it
addressed and rejected an argument by Mexico that the measure at issue was not in fact concerned
with protecting dolphins because it did not also prot ect other marine species. In that respect, the
United States points out that the phrase "do[es] not go against the object and purpose of the
TBT Agreement" is followed by the phrase "even in light of the existence of potentially conflicting
objectives that could also be recognized as legitimate".266
127. In respect of Mexico's argument that a "coe rcive and trade restrictive" objective is not
"legitimate" within the meaning of Article 2.2 of the TBT Agreement, the United States submits that
the Panel did not find that the objectives of the US measure include "coercion or trade restrictiveness"
and that Mexico does not appeal these factual findings. There is no basis for equating an objective
aimed at discouraging or encouraging certain practi ces harmful to animal life or health with an

265United States' appellee's submission, para. 136 (referring to Mexico's other appellant's submission,

objective that is "coercive and trade-restrictive". This would render "illegitimate" the objective of any
labelling scheme that seeks to inform consumers about products that reflect their preferences.267
128. Furthermore, the United States maintains that Mexico confuses the objectives of a measure
with how that objective is achieved. A measure may pursue a legitimate objective but do so through
means that restrict the marketing of certain products . In addition, the United States contends that the
Panel correctly pointed out that the terms of Article 2.2 suggest that some restrictions on international
trade may arise from the preparation, adoption, and application of technical regulations that pursue
legitimate objectives. A measure's objective is not illegitimate merely because the measure restricts
trade. Finally, while Mexico is co rrect that the measures at issue in US – Shrimp and US – Gasoline
were found to constitute "arbitrary and unjustifiabl e discrimination" and a "disguised restriction on
international trade", that was not because the obj ectives of the measures at issue in those disputes
were illegitimate.
129. The United States requests the Appellate Body al so to reject the second claim of Mexico's
other appeal. The United States maintains that the Panel's approach for examining whether the
measure at issue is more trade restrictive than necessary is consistent with Article 2.2 of the
TBT Agreement. Mexico's argument that a measure that does not fully meet its objective is per se a
breach of Article 2.2 is based on a "misreading" of this provision. The United States emphasizes that
Article 2.2 does not include an obligation that technical regulations fulfil their objectives at a
particular level, let alone at a "100% level".
268 In deciding what level of fulfilment a Member seeks to
achieve, the Member may weigh a number of fact ors, such as technical feasibility, costs, and
enforcement resources. Article 2.2 requires technical regulations not to restrict trade more than
necessary to achieve legitimate obj ectives. The preamble of the TBT Agreement , in particular the
words "at the levels it considers appropriate" in the sixth recital, confirms that Members remain free
to determine at what level they seek to achieve an obj ective. The fact that a Member is not seeking to
fulfil an objective to the utmost ex tent does not render the measure per se more trade restrictive than
necessary. Therefore, the Panel was correct in proceeding to examine the alternative measure put
forward by Mexico after it had made the finding that the United States' measure only "partially"
achieves its objectives.269

267United States' appellee's submission, paras. 137 and 138.

3. Article 2.4 of the TBT Agreement and the Effectiveness and Appropriateness
of the AIDCP Standard as a Means to Fulfil the United States' Objectives
130. The United States observes, first, that Mexico has not challenged "the Panel's findings that
support the conclusion that, inside the ETP , the AIDCP standard would be ineffective and
inappropriate for fulfilling the U.S. objectives as they relate to ensuring consumers are not misled or
deceived about whether tuna products contain t una caught in a manner harmful to dolphins". 270 The
United States argues that the Panel's ultimate conc lusions should therefore remain unaltered even if
the Appellate Body were to agree with the arguments advanced by Mexico on appeal.
131. The United States contends that Mexico mi scharacterizes the Panel's findings when it
describes the "AIDCP definition of 'dolphin safe'" as the "standard at issue". 271 The United States
emphasizes that the basis for the Panel's finding th at the AIDCP resolutions constitute a standard is
that the resolutions establish "a system" for tracki ng, certifying, and labelling tuna caught in the ETP
by vessels fishing under the AIDCP.272 The United States contends that the Panel did not find that the
AIDCP "dolphin-safe" definition "was, in itself, a standard".273 In response to Mexico's argument that
the AIDCP standard could be transposed to other fishing regions, the United States submits that "the
standard the Panel examined by its terms c ould not readily be used in other oceans." 274 This is so
because the system for tracking, certifying, and labelling tuna caught in the ETP depends on the
independent observer programme im plemented under the AIDCP. The United States asserts that a
standard cannot be effective or appropriate "if it requires a Member to base its domestic standard on
regimes that do not actually exist".275
132. Given that the AIDCP standard "is built upon the international dolphin conservation program
set out in the AIDCP" 276, the United States argues that it was appropriate for the Panel to inquire
whether the AIDCP standard would be effective and appropriate for fulfilling the objectives of the
US measure in the ocean for which it was designed, where it is applied, and where it should be at its
most effective.277 The Panel's finding that the AIDCP standa rd is "ineffective or inappropriate" for
achieving the United States' objectives within the E TP was a sufficient basis to conclude that the
AIDCP standard is ineffective and inappropriate overall. 278 The United States submits, therefore, that
there was no need for the Panel "to consider the hypothetical application of the AIDCP standard

270United States' appellee's submission, para. 119. (original emphasis)
271United States' appellee's submission, para. 120 (referring to, for example, Mexico's other appellant's
submission, paras. 243 and 256).

outside of the ETP" 279, and that the Panel did not act inconsis tently with Article 11 of the DSU in
declining to do so.280
133. The United States further contends that Mexico 's arguments concerning the appropriateness
and effectiveness of the AIDCP standard do not a ccount for the full scope of the United States'
objectives.281 In support of its position, the United States refers to the Appellate Body's statement in
EC – Sardines that a relevant interna tional standard "would be effective if it had the capacity to
accomplish all three of these objectives [of the EC measure], and it would be appropriate if it were
suitable for the fulfilment of all three of these objectives". 282 The United States observes that
Mexico's argument disregards that the United States' objectives pertain to both observed mortality and
serious injury to dolphins and to unobserved mortal ity and serious injury, as well as "other adverse
effects".283 Consequently, Mexico's argument that the AIDCP definition of "dolphin-safe" would
fulfil one aspect of the United States' objectives is "beside the point", as it does not account for the
full scope of the United States' objectives. 284 The United States also notes that Mexico appears to
accept the Panel's conclusion that the AIDCP standard would be ineffective and inappropriate with
respect to "unobserved" mortality and serious injury to dolphins.285
134. The United States disagrees with Mexico that the AIDCP standard would be more effective
than the measure at issue. The United States submits that the focu s of the inquiry under Article 2.4 is
"whether use of a technical regulation based on the re levant international standard at issue fulfills the
Member's legitimate objectives, rather than the ex tent to which the challenged technical regulation
fulfills those objectives". 286 The United States submits, therefore, that Mexico's arguments
concerning the relative effectiveness of the Unite d States' measure, as compared to the AIDCP
standard, are "inapposite".287
4. The Panel's Exercise of Judicial Economy
135. The United States argues that the Panel acted within its discretion to exercise judicial
economy with respect to Mexico's claims under Articles I:1 and III:4 of the GATT 1994. The
United States asserts that Mexico has not explained why it believes that a finding of

281United States' appellee's submission, paras. 129-132.
282United States' appellee's submission, para. 129 (quoting Appellate Body Report, EC – Sardines ,
para. 288). (original italics; underlining added by the United States)
283United States' appellee's submission, para. 130 (referring to Panel Report, para. 7.484 and
footnote 675 thereto, and para. 7.486).

non-discrimination made under Article 2.1 of the TBT Agreement would be different if examined
under Articles I:1 and III:4 of the GATT 1994. The Un ited States agrees with the Panel that Mexico's
arguments under Article 2.1 "derived directly " from its arguments under the GATT 1994, and the
Panel could therefore properly address all of Me xico's non-discrimination claims and arguments
through its examination of Article 2.1.
288
136. The United States alleges that, in asserting that the Panel's findings under Article 2.2 of the
TBT Agreement failed to resolve the dispute, Mexico "m isconstrued" the Panel Report. To the
contrary, argues the United States, the Panel "addr essed 'all aspects of Mexico's claims, including
non-discrimination aspects under Article 2.1, and other aspects under Article[s] 2.2 and 2.4', such that
it was not 'necessary for it to consider separately and additionally Mexico's claims under Articles I:1
and III:4 of the GATT 1994.'" 289 With respect to Mexico's reference to the Appellate Body's findings
in Australia – Salmon , the United States submits that the same report also stated that false judicial
economy occurs if exercising it does not "ena ble the DSB to make sufficiently precise
recommendations and rulings so as to allow fo r prompt compliance by a Member with those
recommendations and rulings". 290 According to the United States, Mexico does not explain how
reconsidering those claims under Ar ticles I:1 and III:4, using the same facts and arguments that were
provided under Article 2.1, would lead to a diffe rent result and different DSB recommendations or
rulings.
137. Finally, in respect of Mexico's argument that the alleged false judicial economy constitutes a
violation of Article 11 of the DSU, the United States recalls the Appellate Body's finding that "a claim
under [that provision] must stand by itself and be s ubstantiated with specific arguments, rather than
merely being put forth as a subsidiary argument or cl aim in support of a claim of a panel's failure to
construe or apply correctly a particul ar provision of a covered agreement." 291 Since Mexico relies on
the same arguments and facts, the United States c oncludes that its claim under Article 11 of the DSU
does not "stand by itself". Furthermore, the United States argues that the invocation of Article 11 of
the DSU does not relieve Mexico from showing that the Panel's use of judicial economy would not
allow the DSB to make recommendations and rulings that would help achieve a satisfactory resolution
of the dispute.

288United States' appellee's submission, para. 107 (referring to Panel Report, paras. 7.747 and 7.748).
290United States' appellee's submission, para. 108 (referring to Appellate Body Report,
Australia – Salmon, para. 223).
291United States' appellee's submission, para. 111 (referring to Appellate Body Report, US – Tyres
(China), para. 321).

E. Arguments of the Third Participants
1. Australia
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
138. In relation to whether the US "dolphin-safe" labelling provisions constitute a technical
regulation within the meaning of Annex 1.1 of the TBT Agreement, Australia endorses the reasoning
set out in the separate opinion, in particular, the view that private actions alone cannot make a
measure de facto mandatory. Accordingly, Australia supports the United States' request that the
Appellate Body reverse the Panel's finding in this regard.
(b) The Panel's Exercise of Judicial Economy
139. In Australia's view, the Panel erred in exerci sing judicial economy in respect of Mexico's
claims under Articles I:1 and III:4 of the GATT 1994. Recalling that the aim of the dispute settlement
system is "to secure a positive solution to a dispute" and that the Appellate Body has emphasized that
"[t]o provide only a partial resolution of the ma tter at issue would be false judicial economy",
Australia considers that the Panel exercised fal se judicial economy, given the lack of consensus
among the panelists as to whether the measure at issue constitutes a technical regulation.
292 Australia
takes this view having regard to: (i) the possibilit y of the Panel's finding being reversed; (ii) the
simultaneous and cumulative application of Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of
the TBT Agreement ; and (iii) the differences in scope and application of each of the
non-discrimination obligations contained in those pr ovisions. Australia states that it would welcome
the Appellate Body completing the analysis in re lation to Articles I:1 and III:4 should the Appellate
Body consider that the findings of fact on the Panel record enable it to do so.293
2. Brazil
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
140. Brazil submits that the main question to be solv ed in this dispute is whether compliance with
the labelling requirements in the US "dolphin-safe" scheme is mandatory, that is, whether the term
"mandatory" is related to: (i) a condition to have access to the US market; or (ii) to binding

292Australia's third participant's submission, paras. 5-9 (referring to Appellate Body Report,
Australia – Salmon, para. 223; Appellate Body Report, Brazil – Retreaded Tyres , para. 257; Appellate Body
Report, Canada – Wheat Exports and Grain Imports, para. 133; Appellate Body Report, EC – Export Subsidies
on Sugar, para. 335; and Appellate Body Report, Japan – Agricultural Products II, para. 111).
293Australia's third participant's submission, paras. 9 and 10.

requirements regarding labelling. Brazil understands that there is no mention in the text—either in
Annex 1.1 or Annex 1.2 to the TBT Agreement—to the effect that these requirements should be read
in the light of a product's access to the market. Therefore, it would seem that, if a product must
necessarily comply with specific requirements related to its characteristics, irrespective of the market
access conditions available for that product, these re quirements are closer to a "technical regulation"
than to a "standard".
294 Brazil argues that the fact that labe lling requirements are: (i) defined by
US regulations; (ii) enforceable by the US author ities; and (iii) a basis for sanctions in cases where
they are not strictly followed, demonstrates the binding and obligatory effect they have for tuna
traders as they establish a pattern of conduct that cannot be avoided or "bypassed".295
141. Brazil emphasizes that, if a "market access" cr iterion were to be adopted without further
qualification, a "significant loophole" would be created in the implementation of the TBT Agreement.
As a consequence, Members would be given space to create "voluntary" labelling schemes, which,
albeit exclusive and distortive of the competitive e nvironment in the Members' markets, would not be
classifiable as technical regulations and would thus be exempt from complying with most of the
provisions of the TBT Agreement .296 Finally, Brazil submits that, if the Appellate Body were to
accept the reasoning developed in the separate opinion, it should interpret "market access" as meaning
"market access in the same competitive position" as granted to domestic products.297
(b) Consistency of the Measure at Issue with Article 2.2 of the
TBT Agreement
142. Brazil believes that the Panel erred in its analysis of the term "necessary" in Article 2.2 of the
TBT Agreement. According to Brazil, the Panel consid ered that the word "necessary" in the second
sentence of Article 2.2 relates to the "trade-restri ctiveness" of the measure and not to the measure
itself and its legitimate objective. 298 In Brazil's view, the Panel did not give due account to the first
sentence of Article 2.2, which connects the expr ession "unnecessary obstacles to international trade"
with "technical regulations", and not with "trade-restrictiveness". Further, the word "necessary" in the
second sentence is directly linked with "the fulfilment of a legitimate objectiv e", which indicates that
these terms should be analyzed together.299

294Brazil's third participant's submission, para. 19.
295Brazil's third participant's submission, para. 22.
296Brazil's third participant's submission, paras. 20 and 21.
297Brazil's third participant's submission, para. 24.
298Brazil's third participant's submission, para. 31 (referring to Panel Report, para. 7.460).
299Brazil's third participant's submission, para. 31.

143. In addition, Brazil argues that it is of "cruci al importance" to draw on the jurisprudence
developed under Article XX of the GATT 1994 when interpreting Article 2.2. 300 Brazil notes that, in
Brazil – Retreaded Tyres , the Appellate Body held that "[a] contribution exists when there is a
genuine relationship of ends and means between th e objective pursued and the measure at issue" and
that such a "contribution to the achievement of the ob jective must be material, not merely marginal or
insignificant".301 As a result, Brazil suggests that, if the m easure adopted by a Member is not able to
significantly contribute to the achievement of the legitimate objectives, there is no need further to
assess the "trade-restrictiveness" criterion, as the rele vant measure would not be in conformity with
Article 2.2.302 In the light of the above, Brazil argues that the Panel should have inquired whether the
measure at issue significantly contributes to the objectives of providing consumer information and of
promoting the protection of dolphins.
144. With regard to whether a measure is more tr ade restrictive than necessary, Brazil contends
that once a measure has been found to genuinely contribute to the fulfilment of the legitimate
objectives, then the analysis of its "trade-restrictiven ess" may occur. In Brazil's view, the Panel erred
in its interpretation of Article 2.2 of the TBT Agreement by drawing guidance from Article 5.6 of the
SPS Agreement. Under the SPS Agreement, Members are faced with a "stricter policy space", such as
requirements of a scientific justification and a risk assessment. 303 In this regard, Brazil points out
certain differences between the two agreements, su ch as the differences in scope and objectives, the
differences in wording between Article 5.6 and Article 2.2, and the fact that the TBT Agreement
requires no risk assessment when devi ating from international standards. 304 On this basis, Brazil
concludes that Article 5.6 does not seem to be relevant for the interpretation of Article 2.2.305
(c) Article 2.4 of the TBT Agreement and the Notion of "International
Standard"
145. With respect to the question of what constitu tes an "international standard" within the
meaning of Article 2.4 of the TBT Agreement , Brazil argues that the meaning of "international" in
Article 2.4 should be interpreted carefully. In particular, Brazil submits that Annex 1.4 to the

300Brazil's third participant's submission, para. 33.
301Brazil's third participant's submission, para. 33 (quoting Appellate Body Report, Brazil – Retreaded
Tyres, para. 210).
302Brazil's third participant's submission, para. 34.
303Brazil's third participant's submission, paras. 41 and 42.
304Brazil argues that, in the light of the negotia ting history of the Uruguay Round, a connection
between Article 5.6 of the SPS Agreement and Article 2.2 of the TBT Agreement was clearly not intended by the
Members. It refers to a US proposal for the creation of a footnote for Article 2.2 similar to the footnote to
Article 5.6 of the SPS Agreement—as indicated by the letter written by th e then Director-General of the GATT
to the Chief US Negotiator—which was eventually not accepted by th e Membership. (See Brazil's third
participant's submission, para. 44)
305Brazil's third participant's submission, para. 46.

TBT Agreement, which defines "international body or system" as a "[b]ody or system whose
membership is open to the relevant bodies of at least all Members", establishes that "Members should
have the opportunity to accede to [international] st andardizing organizations whenever they consider
adequate."
306 Moreover, the fact that Annex 1.4 is written in the present tense indicates that
membership of an international body or system should be open to all WTO Members at any time, and
especially during the process of developm ent and/or review of a standard. 307 Therefore, where the
accession of new members was possible during a sp ecific period in the past but is currently
contingent, for example, upon the invitation and furt her acceptance by its members, an organization
would not, in Brazil's view, seem to comply with the provisions of Annex 1 to the TBT Agreement.308
According to Brazil, this interp retation is supported by the TBT Committee Decision, which sets out
principles and procedures that should be observed when international standards are elaborated.
Finally, Brazil argues that, as the WTO Members wi shing to accede to a standardizing organization
may face political or legal difficulties in the ac cession process, a case-by-case analysis may be
required to determine the level of "openness" of the organization to new members.309
3. Canada
(a) Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994
146. Canada submits that, because of the virtually identical wording of Article 2.1 of the
TBT Agreement and Article III:4 of the GATT 1994, the in terpretation of the terms found in both
provisions, in particular, the term "treatment no less favourable", as developed by the jurisprudence
under Article III:4, should be substantially the same.310 Referring to previous Appellate Body reports,
Canada contends that an examination of whethe r imported products are treated "less favourably" than
like domestic products requires a consideration of whether there is detriment to imported products—
not, as the United States suggests, a determination of whether the discrimination is "based on" or "for
reasons of" origin. 311 Canada argues that, if the United States' suggestion were accepted, de facto
discrimination claims would virtually be rem oved from the ambit of both Article III:4 of the
GATT 1994 and Article 2.1 of the TBT Agreement.
147. In addition, Canada submits that the "legitimacy" of a technical regulation is not relevant for
the less favourable treatment analysis under Article 2.1 of the TBT Agreement. If the drafters of the

306Brazil's third participant's submission, para. 53.
307Brazil's third participant's submission, para. 54.
308Brazil's third participant's submission, para. 54.
309Brazil's third participant's submission, para. 55.
310Canada's third participant's submission, para. 4.
311Canada's third participant's submission, para. 6 (referring to United States' appellee's submission,
paras. 32 and 35).

TBT Agreement had intended that issues regarding the le gitimacy of regulatory action should factor
into the less favourable treatment test, they could ha ve drafted the text accordingly. Canada disagrees
with what it describes as Mexico's attempt to incorporate elements of the test pertaining to Article XX
of the GATT 1994 through the recitals of the preamble of the TBT Agreement. Canada also opposes
the United States' similar argument that "legitimat e regulatory action" and "legitimate objectives" are
elements to consider in assessing whether ther e is less favourable treatment under Article 2.1. 312
However, Canada points out that Article 2.1, lik e Article III:4 of the GATT 1994, provides significant
flexibility to WTO Members to impose measures that distinguish between pr oducts for "legitimate"
purposes. This is illustrated by the Appellate Body's finding in EC – Asbestos that an otherwise
essentially identical product may not be "like" a nother product if that other product imposes greater
health risks.313
(b) The Panel's Exercise of Judicial Economy
148. Canada supports Mexico's claim that the Pane l should have made findings under Articles I:1
and III:4 of the GATT 1994, particularly since the relationship between Article 2.1 of the
TBT Agreement and Articles I:1 and III:4 of the GATT 1994 is "not settled". 314 In particular, Canada
submits that, unless the result of the application of Article 2.1 and the corresponding provisions of the
GATT 1994 to a particular measure will necessarily be the same, it is false judicial economy for
panels to fail to make findings under both agreem ents. Canada further notes that making findings on
additional claims allows the Appellate Body to consider additional provisions and to resolve the
dispute if it reverses other findings made by the Panel. 315 In the present case, Canada considers that,
by failing to make findings under the TBT Agreement and the GATT 1994, the Panel risked providing
only a partial resolution of the matter at issue.316
(c) Consistency of the Measure at Issue with Article 2.2 of the
TBT Agreement
149. With respect to the interpretation of Article 2.2 of the TBT Agreement , Canada suggests a
five-step test, which it considers ge nerally consistent with the panel reports in the present case, in
US – COOL, and in US – Clove Cigarettes.317

312Canada's third participant's submission, paras. 7-9.
313Canada's third participant's submission, paras. 10 and 11 (referring to Appellate Body Report,
EC – Asbestos, paras. 114-116, 122, and 130).
314Canada's third participant's submission, para. 15.
315Canada's third participant's submission, para. 14 (referring to Panel Report, Canada – Dairy ,
316Canada's third participant's submission, para. 15.
317Canada's third participant's submission, para. 17.

150. According to Canada, a panel should first dete rmine if the technical regulation restricts
international trade. If it does not, the measure cannot violate Article 2.2. In the present case, Canada
argues that there does not appear to be any disp ute about whether the measure at issue restricts
international trade. As a second step, a panel shoul d identify the objective of the technical regulation
by looking at the design, structure, and architecture of the measure, as well as other relevant
documents.
151. Canada argues that, as a third step, a panel should determine if the objective of the technical
regulation is legitimate. If it is not, the technical regulation violates Article 2.2 of the TBT Agreement.
In this regard, Canada agrees with the Panel that a proper analysis starts by determining whether the
objective falls within the explicitly listed objectives in Article 2.2. If the objective does not fall within
the list, it is necessary to determine if it is nevert heless "legitimate" within the broader scope of that
term as used in this provision. Canada agrees w ith Mexico that Members do not have an unlimited
right to adopt any policy objective and cannot establish legitimacy on the basis of a mere assertion. It
further notes that whether policies address a "legitima te objective" within the meaning of Article 2.2
is a question of legal interpretati on for a panel. Referring to the ejusdem generis principle, Canada
submits that a general term, such as "legitimate objec tives", followed by an illustrative list of specific
items means that the general term is limited to the type of items specifically listed. In order to
distinguish non-legitimate objectives from legitima te ones, a panel should take into account the
importance of the specifically listed objectives and the "common interests or values that are at
stake".
318
152. In Canada's view, as a fourth step, a panel shoul d determine if the technical regulation fulfils
the legitimate objective. If it does not, the techni cal regulation violates Article 2.2 and it is not
necessary to consider alternative less trade-restri ctive measures. Canada observes that, although the
Panel did not address this issue as an independent el ement, it did in essence perform this analysis and
concluded that the measure "can only partially ensure that consumers are informed about whether
tuna was caught by using a method that adversely affects dolphins". 319 For Canada, the Panel's
finding that consumers "could be misled into thi nking that a tuna product did not involve injury or
killing of a dolphin when this may in fact have been the case" may be the same as a finding that the
challenged measure does not meet the fourth step of the test. 320 Alternatively, the Appellate Body
may interpret the Panel's finding as a determination th at the measure meets this fourth step, but that

318Canada's third participant's submission, para. 26 (referring to Appellate Body Report,
Korea – Various Measures on Beef, para. 162).
320Canada's third participant's submission, paras. 27 and 28 (quoting Panel Report, para. 7.564).

the level of fulfilment is limited. If so, Canada ar gues that the level of fulfilment of the objective is a
factor to consider in assessing the alternative measure proposed by Mexico in the next step.321
153. As a last step, Canada submits that a pane l should assess alternativ e measures that would
fulfil the legitimate objective in a less trade-r estrictive way, "taking account of the risks non-
fulfilment would create". If there are such altern ative measures, the technical regulation violates
Article 2.2. Canada emphasizes that what the text requires to be considered are the risks that would
arise from a failure to fulfil the legitimate objective and not the "risks of non-fulfilment" in the sense
of an assessment of the likelihood that a measure will not fulfil its objective. Canada alleges that the
panels in this case and in US – Clove Cigarettes appear to have equated the two terms. 322
Furthermore, although not explicitly envisaged by Article 2.2, the extent of fulfilment of the objective
by both the challenged measure and the proposed alternative measure should be taken into account.
Similarly, the harm that would arise from the failure to fulfil an objective should be considered with
the "trade-restrictiveness" of an alternative measu re. Finally, Canada argues that a reduction of
potential costs on domestic products is not a factor to consider in balanc ing a challenged measure
against an alternative measure.
4. European Union
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
154. Recalling the Appellate Body's finding in EC – Asbestos that the term "mandatory" suggests
that a measure regulates the characteristics of a pr oduct "in a binding or compulsory fashion" with the
"effect of prescribing or imposing" one or more of them, the European Union argues that the mere fact
that the US "dolphin-safe" labelling scheme is contained in a law is not sufficient to conclude that it is
"binding or compulsory".323 Such an argument would "formalistically" focus on the binding nature of
the document containing the labelling scheme and would disregard the substance of the product
characteristics, that is, that the labelling requireme nts leave economic operators the choice of whether
they want to market their products with or without the label. 324 Additionally, the US measure cannot
be considered "binding or compulsory" simply because it establishes conditions or requirements for
the use of the "dolphin-safe" label, as such a r eading would conflate the meaning of the terms
"mandatory" and "requirement" and thus leave no space for the voluntary labelling requirements

321Canada's third participant's submission, para. 29.
322Canada's third participant's submission, para. 31 (ref erring to Panel Report, para. 7.467; and Panel
323European Union's third participant's submission, paras. 17 and 18 (referring to Appellate Body
Report, EC – Asbestos, para. 68).
324European Union's third participant's submission, para. 18.

addressed in Annex 1.2 to the TBT Agreement.
325 In addition, the European Union submits that the
fact that compliance with the conditions of th e US "dolphin-safe" labelling scheme is legally
enforceable does not appear to be sufficient either to render compliance "mandatory". As the separate
opinion points out, legally binding norms, such as consumer protection or fair competition laws,
which compel producers to fulfil promises concerning (voluntary) standards, should not "transform"
such standards into mandatory technical regulations.
326
155. Although the European Union disagrees that the "e xclusivity" of a labelling scheme is always
the dividing line between manda tory and voluntary schemes, it accepts that there may be
circumstances in which this factor could contribu te to the mandatory nature of a labelling scheme. 327
However, in the European Union's view, the Panel did not properly explain how the "exclusivity" of a
labelling scheme makes compliance therewith "binding or compulsory". First, the Panel's assertion
that "the measures prescribe 'in a negative form ' … that no tuna product may be labelled dolphin-safe
or otherwise refer to dolphins, porpoises or marine mammals if it does not meet the conditions set out
in the measures" does not address why this situation makes compliance mandatory.
328 T h i s i s s o
because economic operators remain free to market tuna without any labels relating to their
"dolphin-safety". Second, contrary to the Pane l's position, the European Union considers that
EC – Sardines provides no support for the Panel's "exclusivity" argument. In EC – Sardines , the
imported product could not be sold as preserve d sardines unless it complied with the labelling
requirements, whereas in the present case tuna prod ucts may be sold as "tuna" even if they do not
comply with the "dolphin-safe" labelling requirements.329
(b) Consistency of the Measure at Issue with Article 2.1 of the
TBT Agreement
156. The European Union notes that, in order to di stinguish between the exercise of regulatory
autonomy that is acceptable and that which is not, one must look at the effects of a measure as well as
its aim, which includes an enquiry into the design of the measure. This further entails an examination
of whether or not the measure has some other pur pose (as opposed to discriminating against imports),
whether or not that purpose is "justified" or "l egitimate", whether the measure reasonably contributes
to achieving that objective (as opposed to being "arb itrary"), and whether or not there is another
measure available equally capable of contributing to the objective but "less restrictive of trade". 330
Further, the European Union submits that numerous provisions of the covered agreements express this

325European Union's third participant's submission, para. 19.
326European Union's third participant's submission, para. 20.
327European Union's third participant's submission, para. 22.
328European Union's third participant's submission, para. 23 (quoting Panel Report, para. 7.131).
329European Union's third participant's submission, para. 23.
330European Union's third participant's submission, paras. 53-56.

basic approach, most obviously the chapeau of Article XX of the GATT 1994 and in the "necessity"
language of that article, as well as Article III:4, and that these GATT 1994 provisions are "re-cast" in
Articles 2.1 and 2.2 of the TBT Agreement.331
157. Regarding the question of an "in fact" clai m of a national treatment violation, the
European Union notes that the outcome depends mostly on what is meant by "'factors or
circumstances' related to the foreign origin of the pr oduct". It also depends on whether this concept is
to be construed relatively narrowly or relatively br oadly, and whether any countervailing explanations
are to be considered only in case such a "relation" is identified, or rather at the same time as
considering whether there is any "relation" at all. The European Union argues for a broader concept,
including, for example, consumer preferences a nd/or regulations in the exporting country, but
highlights that any countervailing expl anations should be considered at the same time as considering
whether or not there is any such "relation" with foreign origin. Such an approach would be
sufficiently flexible and broadly similar to the approach under the GATT 1994. 332 Concerning the
present case, the European Union is of the view that the Panel carefully considered all of the evidence
before it and made an objective assessment pursuant to Article 11 of the DSU.333
(c) Consistency of the Measure at Issue with Article 2.2 of the
TBT Agreement
158. The European Union agrees with the United States that Mexico had the initial burden of proof
with respect to all aspects of its claim under Article 2.2 of the TBT Agreement . Furthermore, the
European Union stresses the importance of the way in which the legitimate objective is framed (either
more broadly or more narrowly) for the analysis unde r this provision. The United States' approach of
narrowing the objective so as to correspond to th e subject matter of the complaint ("setting on
dolphins") is, in the European Union's view, somewhat "mechanistic". It would not leave much room
for the balanced consideration of all the facts, su ch as, for example, why the circumstances of death
might be relevant to circumscribe the objective itself if, presumably, the United States and its
consumers really do care about dolphin mortality. 334 As to the question of whether the costs
associated with a measure should play a role in the assessment under Article 2.2, the European Union
submits that it may be relevant to examine the bala nce between the objective and the costs, as well as
the manner in which the costs are distributed amon gst different WTO Members, particularly in the

331European Union's third participant's submission, para. 60.
332European Union's third participant's submission, paras. 62-66. The European Union recognizes,
however, that such an approach would result in a conceptual overlap between an in fact assessment under
Article 2.1 of the TBT Agreement , and an assessment under Article 2.2 of the TBT Agreement , taking into
account the observation th at, in an in fact assessment, no facts are per se excluded from the scope of the
adjudicator's review.
333European Union's third participant's submission, para. 67.
334European Union's third participant's submission, para. 76.

long-term.
335 Finally, the European Union agrees with the United States that the relative risk to
dolphins inside and outside the ETP would be relevant to the assessment.336
(d) Article 2.4 of the TBT Agreement and the Notion of "International
Standard"
159. The European Union submits that the dete rmination of which documents qualify as
"international standards" must be undertaken with great care, since such standards trigger the
obligation in Article 2.4 of the TBT Agreement. As regards the requirement of "recognition" of an
entity as an international standardizing organization, the European Union argues that this relates to the
standardization activities of a body and that it would be circular to infer "recognition" from
"participation" by countries in a body's standard izing activities as this would devoid the "recognition"
element of any meaning.337
160. In addition, the European Union argues that "recognition" by only one country regarding only
one document should not qualify as recognition that the relevant entity is an international standards
organization. Recognition of standardization ac tivity should depend on those who establish and use
standards, that is, the market partic ipants, and not governments or courts. 338 The European Union
advances additional factors, which, in its view, i ndicate that the AIDCP may not be an entity with
recognized activities in standardization. The European Union points out that the issuance of standards
is not mentioned as one of the objectives of the AIDC P and that there is no indication that the AIDCP
has accepted the Code of Good Practice for the Preparation, Adoption and Application of Standards in
Annex 3 to the TBT Agreement , which would have indicated that the AIDCP sees itself as a
standardizing body. Finally, the European Union doubts that the AIDCP has the necessary
institutional structure to qualify as an "organiza tion" and is sufficiently "open" to qualify as
"international" for the purposes of the TBT Agreement.
5. Japan
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
161. Japan agrees with the Panel's analysis concer ning the mandatory nature of the measure at
issue. In Japan's view, no single factor of the three listed by the Panel should be decisive on its own.
Japan submits, however, that all three considered together should be given considerable weight in
determining whether a measure is a technical regulation that regulates the "characteristics of products"

335European Union's third participant's submission, para. 76.
336European Union's third participant's submission, para. 77.
337European Union's third participant's submission, paras. 85-87.
338European Union's third participant's submission, para. 88.

in a binding or compulsory fashion.339 According to Japan, the distinguishing characteristic of the
US measure is that it privileges and enforces a single definition of "dolphin-safety" and excludes other
definitions, thereby restricting the choice to use indications on products regardless of whether that
tuna was actually harvested in a "dolphin-safe" manner. 340 In Japan's view, if the measure permitted
alternative descriptive labels addressing the "dolphin- safety" of tuna, then it would most likely not be
mandatory because products not satisfying one descrip tion could indicate their product characteristics
or quality appropriately.341
162. Japan suggests that the reports of the panels in EC – Sardines and EC – Trademarks and
Geographical Indications (Australia) should guide the Appellate Body's analysis in this case. In the
former case, the European Communities argued that its regulation did not bar the sale of the product
at issue in the European Communities at all, unless labelled as "preserved sardines". In the latter case,
the regulation at issue did not bar the importation or sale of a product as such, but simply prohibited
the marketing of certain products in the EC if the pr oduct used a particular label. Japan notes that, in
this dispute, the measure at issue similarly bars marketing of tuna products that bear a
non-conforming "dolphin-safe" label suggesting that it is therefore a "technical regulation" for
purposes of the TBT Agreement.342
163. In Japan's opinion, the Appellate Body should not conclude that a la belling requirement can
only be a technical regulation if the requirement manda tes that a label must be used in order for the
good to be sold on the market. This reading woul d be "too narrow", inconsistent with prior cases, and
would leave many potentially trade-distorting measures outside the scope of the TBT Agreement.343
(b) Article 2.4 of the TBT Agreement and the Notion of "International
Standard"
164. With respect to the Panel's finding regarding Article 2.4 of the TBT Agreement, Japan is of the
view that "no purported international standard shou ld be recognized as such" if the six principles set
out in the TBT Committee Decision were disregarded in its elaboration.344
165. Japan agrees with the United St ates that the Panel was incorrect in finding that the AIDCP
definition is an "international standard" within th e meaning of Article 2.4. In particular, Japan
disagrees that the AIDCP is "international" as it is not "open" in the sense of the TBT Committee

339Japan's third participant's submission, para. 13 (referring to Appellate Body Report, EC – Asbestos,
para. 69).
340Japan's third participant's submission, para. 14.
341Japan's third participant's submission, para. 19.
342Japan's third participant's submission, paras. 15-18.
343Japan's third participant's submission, para. 20.
344Japan's third participant's submission, para. 23.

Decision, which calls for "openness without discrimina tion with respect to participation at the policy
development level and at every stage of standards development".
345 Japan requests the
Appellate Body to consider the relevant facts and carefully assess whether an organization with
participation as narrow as the AIDCP should be de emed to be "open" within the meaning of
Annex 1.4 to the TBT Agreement.346
6. New Zealand
(a) Annex 1.1 to the TBT Agreement and the Definition of "Technical
Regulation"
166. In New Zealand's view, the Panel erred in its analysis of whether the US measure constitutes a
"technical regulation" within the meaning of Annex 1.1 of the TBT Agreement . According to
New Zealand, the Panel's focus should have been on whether there was a mandatory requirement for
tuna producers to label their product as "dolphin-safe " to be sold in the US market, rather than
whether the labelling criteria were binding in nature.347
167. New Zealand submits that the Appellate Body should first consider whether there is a de jure
mandatory requirement for tuna producers to label their product as "dolphin-safe". If it determines
that no such requirement exists and that the use of the label is only voluntary, the second step should
be to consider whether there are facts and circum stances that imply that the criteria for use of the
"dolphin-safe" label could nevertheless be considered a de facto mandatory requirement to label, and
thus constitute a technical regulation. 348 According to New Zealand, a conclusion that a measure is
de facto mandatory must be clearly supported by the facts of the case so as to maintain the distinction
between technical regulations and standards in the TBT Agreement . New Zealand notes, in this
regard, that the Appellate Body may wish to consid er the relevance of the fact that the US measure
appears to prohibit the use of other terms or statements relating to "dolphin-safety".349
(b) Consistency of the Measure at Issue with Article 2.2 of the
TBT Agreement
168. In New Zealand's view, the Panel appropriately considered whether the measure fell within
any of the legitimate objectives listed under Article 2.2. While agreeing with the Panel's finding that
Article 2.2 provides a non-exhaustive list of legitimate objectives, New Zealand argues that the phrase
"legitimate objectives" also implies that some object ives are illegitimate. Therefore, an objective not

345Japan's third participant's submission, para. 26.
346Japan's third participant's submission, para. 27.
347New Zealand's third participant's submission, para. 8.
348New Zealand's third participant's submission, para. 9.
349New Zealand's third participant's submission, para. 10.

included in the illustrative list (such as "consumer in formation") should only be considered legitimate
where the regulating Member is able to provide clear and compelling evidence as to its legitimacy.350
169. New Zealand disagrees with the Panel's conclusion that the consumer information objective
of the US measure fits within the broader goal of preventing deceptive practices. New Zealand notes
that these objectives are not interchangeable and that, from a systemic perspective, there is a
fundamental distinction between the objectives of consumer information and the prevention of
deceptive practices. A Member regulating to pr event deceptive practices (which is specifically
recognized as a legitimate objective in Article 2.2) onl y has to show that its measure is in fact aimed
at preventing deceptive practices. Conversely, a Me mber regulating to provide consumer information
must first demonstrate that consumer information is indeed a legitimate objective in the circumstances
of the case. When determining whether "consumer information" is a legitimate objective, a panel
should take the nature of the objectives in the illustrative list in Article 2.2 into account.
351
(c) Article 2.4 of the TBT Agreement and the Notion of "International
Standard"
170. New Zealand supports the Panel's appro ach to ascertaining whether the AIDCP
"dolphin-safe" standard is an "international standard" for the purposes of Article 2.4 of the
TBT Agreement. This approach allows for a careful consid eration of any standard claimed to be an
international standard and should ensure that an inappropriate burden is not imposed on regulating
Members with respect to the use of international st andards. Moreover, New Zealand agrees with the
Panel's approach to determining whether an organi zation is an international standardizing/standards
organization. It also endorses the Panel's exam ination of whether standardizing activities are
"recognized activities" carried out by the organization, and whether membership of an organization is
open on a non-discriminatory basis to relevant bodies of at least all WTO Members.352
III. Issues Raised on Appeal
171. The following issues are raised on appeal:
(a) whether the Panel erred in characterizing the measure at issue as a "technical
regulation" within the meaning of Annex 1.1 to the TBT Agreement;

350New Zealand's third participant's submission, paras. 17 and 18.
351New Zealand's third participant's submission, paras. 20 and 21.
352New Zealand's third participant's submission, paras. 12 and 13 (referring to Panel Report,
paras. 7.685 and 7.691).

(b) whether the Panel erred in finding, in pa ragraphs 7.374 and 8.1(a) of the Panel
Report, that the US "dolphin-safe" labelli ng provisions are not inconsistent with
Article 2.1 of the TBT Agreement, and in particular:
(i) whether the Panel erred in its interp retation and application of the phrase
"treatment no less favourable" in Article 2.1 of the TBT Agreement; and
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in its
evaluation of Mexico's claim under Article 2.1 of the TBT Agreement.
(c) whether the Panel erred in law, or acted inc onsistently with Article 11 of the DSU, in
finding, in paragraph 7.620 of the Panel Report, that the measure at issue is more
trade restrictive than necessary to fulfil the United States' legitimate objectives, taking
account of the risks non-fulfilment would creat e, and that, therefore, the measure at
issue is inconsistent with Article 2.2 of the TBT Agreement;
(d) if the Appellate Body reverses the Panel's finding that the measure at issue is
inconsistent with Article 2.2 of the TBT Agreement, then whether the Panel erred in
finding that the United States' objective of "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" is a legitimate objective within the meaning
of that provision;
(e) if the Appellate Body reverses the Panel's finding that the measure at issue is
inconsistent with Article 2.2 of the TBT Agreement and rejects the ground of appeal
in item (d) above, then whether the measure at issue is inconsistent with Article 2.2 of
the TBT Agreement based on the Panel's finding that the measure did not entirely
fulfil its objectives;
(f) whether the Panel erred in finding, in pa ragraph 7.707 of the Panel Report, that the
AIDCP "dolphin-safe definition and certifica tion" constitute a "relevant international
standard" within the meaning of Article 2.4 of the TBT Agreement; and in finding, in
paragraph 7.740 of the Panel Report, that Mexico had failed to demonstrate that the
AIDCP standard is an effective and appropr iate means to fulfil the United States'
objectives "at the United States' chosen level of protection"; and

(g) whether the Panel acted inconsistently w ith Article 11 of the DSU in deciding to
exercise judicial economy with respect to Mexico's claims under Articles I:1 and III:4
of the GATT 1994.
IV. Background and Overview of the Measure at Issue
172. This dispute arises out of a challenge brought by Mexico against certain legal instruments of
the United States establishing the conditions for the u se of a "dolphin-safe" label on tuna products. In
particular, Mexico identified the following legal in struments as the object of its challenge: the
United States Code, Title 16, Section 1385 (the "Dolphin Pr otection Consumer Information Act" or
"DPCIA"); the United States Code of Federal Regulations , Title 50, Section 216.91 and
Section 216.92 (the "implementing regulations"); and a ruling by a US federal appeals court in Earth
Island Institute v. Hogarth 353 (the "Hogarth ruling"). Taken t ogether, the DPCIA, the implementing
regulations, and the Hogarth ruling set out the requirements for when tuna products sold in the
United States may be labelled as "dolphin-safe". 354 More specifically, they condition eligibility for a
"dolphin-safe" label upon certain documentary ev idence that varies depending on the area where the
tuna contained in the tuna product is harvested a nd the type of vessel and fishing method by which it
is harvested. In particular, tuna caught by "setting on" 355 dolphins is currently not eligible for a
"dolphin-safe" label in the United States, regardless of whether this fishing method is used inside or
outside the Eastern Tropical Pacific Ocean (the "ETP"). 356 The DPCIA and the implementing
regulations also prohibit any refe rence to dolphins, porpoises, or ma rine mammals on the label of a
tuna product if the tuna contained in the product does not comply with the labelling conditions spelled
out in the DPCIA. However, they do not make the use of a "dolphin-safe" label obligatory for the
importation or sale of tuna products in the United States. We refer to the legal instruments challenged

353United States Court of Appeals for the Ninth Circuit, Earth Island Institute v. Hogarth, 494 F.3d 757
(9th Cir. 2007) (Panel Exhibit MEX-31).
354Panel Report, para. 7.24.
355The fishing technique of "setting on" dolphins takes advantage of the fact that tuna tend to swim
beneath schools of dolphins in the ETP. The fishing method involves chasing and encircling the dolphins with a
purse seine net in order to catch the tuna swimming beneath the dolphins.
356The ETP, as defined under US law, extends westward from the west coast of the Americas to include
most of the tropical Pacific east of the Hawaiian Islands , and includes high seas areas as well as the exclusive
economic zones and territorial seas of Chile, Colombia, Costa Rica, Ecuador, El Sa lvador, France (due to the
French overseas possession, Clippert on Island), Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and
the United States. More specifically, the DPCIA define s the ETP as "the area of the Pacific Ocean bounded by
40 degrees north latitude, 40 degrees south latitude, 160 degrees west longitude, and the western coastlines of
North, Central, and South America." (DPCIA, subsection 1385(c)(2))

by Mexico collectively as the "measure at issue" , the "US measure", or "the US 'dolphin-safe'
labelling provisions" for ease of reference and uniformity with the Panel.
357
173. With respect to the conditions for access to a "dolphin-safe" label, the DPCIA distinguishes
between five different fisheries, namely: (1) large 358 purse seine vessels in the ETP; (2) purse seine
vessels in any ocean region outside of the ETP wher e the US Secretary of Commerce has determined
that there is a regular and significant tuna-dolphin association similar to that found in the ETP;
(3) purse seine vessels in any other ocean region out side the ETP; (4) non-purse seine vessels in any
ocean area where the US Secretary of Commerce has determined that there is a regular and significant
mortality or serious injury of dolphins; and (5) v essels engaged in driftnet fishing on the high seas.
At the time of the panel request in this dispute, the US Secretary of Commerce had not identified any
fisheries as having a regular and significant t una-dolphin association or as having a regular and
significant mortality or serious injury of dolphins.359
174. Depending on the fishery in which the tuna contained in a tuna product is harvested, the
DPCIA requires either one or both of the following certifications as a condition for a "dolphin-safe"
label: (1) a certification that no purse seine net was intentionally deployed on or used to encircle
dolphins during the particular voyage on which th e tuna were caught; (2) a certification that no
dolphins were killed or seriously injured in the sets in which the tuna were caught. The DPCIA
further prescribes whether these certifications are to be provided: (1) by the captain of the vessel; or
(2) by the captain of the vessel and an obser ver. The DPCIA provides that access to the
"dolphin-safe" label is prohibited for tuna products containing tuna fished with driftnets on the high
seas.
175. Under the DPCIA, the type of certification required for tuna products containing tuna
harvested by large purse seine vessels in the ETP was subject to a finding by the US Secretary of
Commerce on whether the intentional deployment on or encirclement of dolphins with purse seine

357The Panel treated the various interrelated legal inst ruments identified by Mexico as the basis for its
claims in these proceedings as a si ngle measure for the purposes of its findings. The Panel reasoned that
"together and collectively, the various provisions in the different legal instruments identified by Mexico,
including the Hogarth ruling, set out the terms of the US 'dolphin-safe' labelling scheme, as currently applied by
the United States." The Panel also noted that "the United States [did] not object to Mexico's request to consider
the various instruments together and that [the United States had] articulated its defence in these proceedings on
the basis of the measures taken together." (See Panel Re port, para. 7.24) The legal nature of the measure at
issue is one of the issues raised in this appeal, and, like the Panel, we use the term "US 'dolphin-safe' labelling
provisions" without prejudice to the substantive issue of whether the measure at issue constitutes a technical
regulation within the meaning of Annex 1.1 to the TBT Agreement.
358Pursuant to subsection 1385(d)(2)(A) of the DPCIA, the labelling conditions do not have to be met
by vessels that are "of a type and size that the Secret ary has determined, consistent with the International
Dolphin Conservation Program, is not capable of deploying its purse seine nets on or to encircle dolphins". This
limitation applies only to the ETP.
359Panel Report, paras. 2.23, 7.488, and 7.534.

nets is having a significant adverse impact on any depleted dolphin stock in the ETP. 360 In the event
of a negative finding, a certification that "no dolphins were killed or seriously injured during the sets
in which the tuna were caught" would have been suffi cient in order to make the tuna products eligible
for a "dolphin-safe" label. In the event of a positive finding, an additional certification that "no tuna
were caught on the trip in which such tuna were harvested using a purse seine net intentionally
deployed on or to encircle dolphins" would have been required.
176. The US Secretary of Commerce found that "the in tentional deployment on or encirclement of
dolphins with purse seine nets [was] not having a significant adverse effect on any depleted dolphin
stock in the ETP."
361 However, this finding was overturned through court rulings, on the basis that the
Secretary failed to conduct statutorily mandated studi es and that the best ava ilable scientific evidence
did not support the Secretary's finding. 362 The United States explained to the Panel that, as a result of
these rulings, "the findings necessary for the subsecti on 1385(h)(1) certification to apply do not exist,
and therefore the applicable certification for tuna caught using purse seine nets in the ETP remains the
one set out in subsection 1385(h)(2)." 363 The Panel accepted this characterization of the current
situation under US law. Accordingly, it found that:
… under the DPCIA provisions that are currently applicable, tuna
harvested in the ETP by a large v essel using purse-seine nets may be
labelled dolphin-safe if the captain and an observer approved by the
IDCP [the "International Dolphi n Conservation Program"] certify
that no dolphins were killed or seriously injured during the sets in
which the tuna were caught and that no purse seine net was
intentionally deployed on or used to encircle dolphins during the
same fishing trip.364 (original emphasis)
177. Subsection 1385(d)(3) of the DPCIA provides for the development of an official
"dolphin-safe" label and stipulates conditions for the use of alternative "dolphin-safe" labels. Either
the official label or an alternative one may be used, provided that the conditions are met. 365 In
response to questioning by the Panel, the Unite d States clarified that the requirements for the
alternative label apply in addition to the conditions for the official label. The Panel accepted the
United States' characterization of the law.366

360DPCIA, subsection 1385(h).
361Panel Report, para. 2.18 (quoting US District Court for the Northern District of California, Earth
Island Institute v. Evans, (9 August 2004) (Panel Exhibit MEX-29), p. 4).
362Earth Island Institute v. Evans , supra, footnote 361, affirmed by Earth Island Institute v. Hogarth ,
supra, footnote 353.
363Panel Report, para. 2.19 (quoting United States' first written submission to the Panel, para. 22).
364Panel Report, para. 2.20.
365Panel Report, paras. 2.28 and 2.29.
366Panel Report, paras. 2.30 and 7.536 (referring to United States' response to Panel Question 8; and
United States' second written submission to the Panel, paras. 40 and 41).

V. Legal Characterization of the Measure at Issue
178. Before the Panel, Mexico challenged the c onsistency of the US "dolphin-safe" labelling
provisions with Articles I:1 and III:4 of the GATT 1994 and Article 2 of the TBT Agreement. Before
proceeding to examine the substance of Mexico's claims, the Panel stated that it would determine, as a
threshold matter, whether, as contended by Mexi co, the measure at issue constitutes a "technical
regulation" to which Article 2 of the TBT Agreement applies.
367
179. In its analysis of this question, the Panel applied what it described as a "three-tier test" 368 and
made three intermediate findings. First, the Pane l found that the measure at issue applies to an
"identifiable" product or group of products, namely, "tuna products" as defined in the DPCIA and
Section 216.3 of Title 50 of the United States Code of Federal Regulations .369 Second, the Panel
found that the measure at issue sets out the cond itions under which tuna pr oducts may be labelled
"dolphin-safe" and that it thus establishes "labelli ng requirements, as they apply to a product, process
or production method" within the meaning of Annex 1.1 to the TBT Agreement.370 Third, the Panel
found that the measure at issue establishes "lab elling requirements, compliance with which is
mandatory".371 The United States does not contest the first two intermediate findings made by the
Panel. Instead, its appeal focuses on the Panel's finding that the measure at issue establishes labelling
requirements "with which compliance is mandatory" and the Panel's conclusion that the US measure
therefore constitutes a "technical regulation" within the meaning of Annex 1.1.
180. Based on its review of the measure at issue, the Panel found, inter alia, that, in order for tuna
products to be exported from or offere d for sale in the United States with a "dolphin-safe"
designation, such products must comply with the requirements set out in the DPCIA. 372 The Panel
added that the US "dolphin-safe" labelling provis ions are subject to specific enforcement measures 373;
and that they prescribe in a binding manner the cond itions for the use of certain terms on labels for
tuna products, on the basis of compliance with the underlying standard. 374 The Panel further
emphasized that the US "dolphin-safe" labelling provisions are "legally enforceable and binding under
US law" and were "issued by the gove rnment and include legal sanctions". 375 Furthermore, the Panel
remarked that the challenged measu re prescribes "certain requirements that must be complied with in
order to make any claim relating to the manner in which the tuna contained in [a] tuna product was

367Panel Report, para. 7.49.
368Panel Report, para. 7.53.
369Panel Report, para. 7.62.
370Panel Report, para. 7.78.
371Panel Report, para. 7.145.
372Panel Report, para. 7.124.
373Panel Report, para. 7.127.
374Panel Report, para. 7.132.
375Panel Report, para. 7.142.

caught, in relation to dolphins" and regulates "not onl y the use of the particular label at issue, but
more broadly the use of a range of terms for the offering for sale of tuna products, beyond even the
specific 'dolphin-safe' appellation". 376 The Panel added that the measure at issue prohibits "any
statement relating to dolphins, porpoises or marine [mammals], whether misleading or otherwise, if
the conditions set out in the regulation are not met" and leaves no other possibility to inform
consumers about the "dolphin-safety" of tuna products, except to meet the specific requirements of the
measure.377 The Panel considered therefore that, effect ively, the specific requirements of the measure
at issue are the only option available to address "dol phin-safety" and that, through access to the label,
the US measure regulates "the 'dolphin-safe' stat us of tuna products in a binding and exclusive
manner".378 On this basis, the Panel concluded that the US "dolphin-safe" labelling provisions
constitute a "technical regulation" subject to the disciplines of Article 2 of the TBT Agreement.379
181. The United States takes issue with several asp ects of the Panel's analysis, alleging in
particular that the Panel erred in its interp retation of the word "mandatory" by making it
indistinguishable from the term "requirement". 380 In the United States' view, a labelling requirement
is "mandatory" within the meaning of Annex 1.1 if th ere is a requirement to use a particular label in
order to place a product for sale on the market. 381 The United States submits that the Panel erred in
relying on the fact that the measure at issue is legally enforceable and binding under US law, since
enforceability, as such, does not distinguish technical regulations from standards. 382 T h e
United States also alleges that the Panel erred by re lying on a criterion of "exclusivity" to find that a
standard becomes a technical regulation if it is "the only standard" availa ble to address an issue. 383
The United States argues in this regard that "[n]othing in Annex 1.1 provides that a technical
regulation must be exclusive, and nothing in Annex 1.2 provides that a standard cannot be
exclusive."
384

376Panel Report, para. 7.143.
377Panel Report, paras. 7.143 and 7.144.
378Panel Report, para. 7.144.
379In a separate opinion, one member of the Panel found that compliance with the "dolphin-safe"
labelling provisions is not "mandatory" and concluded, therefore, that the US m easure does not constitute a
"technical regulation" within the meaning of Annex 1.1 to the TBT Agreement. According to that panelist, a
labelling scheme is "mandatory" when the use of a ce rtain label is compulsory to access the market and
"voluntary" when products can be marketed with or without the label. Notwithstanding this conclusion, the
panelist in question considered it appr opriate to pursue the analysis of the measure at issue as a "technical
regulation" and agreed with the remainder of the Panel's findings. (Panel Report, para. 7.188)
380United States' appellant's submission, heading III.B.1.
383United States' appellant's submission, para. 65 (referring to Panel Report, paras. 7.143 and 7.144).

182. Mexico disagrees with the United States that th e Panel's interpretation of "mandatory" is
indistinguishable from the term "requirements".
385 Mexico maintains that what makes the
US "dolphin-safe" labelling provisions mandatory is not whether a label is de jure required in order to
sell tuna products in the market, but the fact that th ey restrict retailers, consumers, and producers to a
single choice for labelling tuna products as "dolphin-safe". 386 Mexico contends that the prohibition of
using a label "based on any standard other than the U.S. standard is … separate from and in addition
to the 'labelling requirements'". 387 It is this prohibition that, in Mexico's view, "transforms what
would otherwise be a standard into a technical regulation". 388 In response to the United States'
argument that "enforceability" as such does not dis tinguish technical regulations from standards,
Mexico contends that the United States confuses th e enforcement of the "labelling requirements" with
the enforcement of the single "dolphin-safe" definiti on. In Mexico's view, it was the separate and
distinct prohibition of other labels that was the focus of the Panel's analysis with respect to
"enforceability".389
A. Interpretation of Annex 1.1 to the TBT Agreement
183. Before we review the definition of "technical regulation" contained in Annex 1.1 to the
TBT Agreement, we recall that the Appellate Body has previously addressed the meaning of that
provision in EC – Asbestos and EC – Sardines . In the latter case, the Appellate Body held that, in
order to fall under the definition of "technical regul ation", a document must apply to an identifiable
product or group of products, it must lay down one or more characteristics of the product, and
"compliance with the product characteristics must be mandatory".
390
184. Article 1.2 of the TBT Agreement stipulates that "for the purposes of this Agreement the
meaning of the terms given in Annex 1 appli es". The first paragraph of Annex 1 to the
TBT Agreement defines the term "technical regulation" as follows:
Document which lays down product characteristics or their related
processes and production methods, including the applicable
administrative provisions, with wh ich compliance is mandatory. It
may also include or deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as they apply to a
product, process or production method.

385Mexico's appellee's submission, heading III.A.2.
386Mexico's appellee's submission, para. 41 and footnote 43 thereto (quoting Panel Report, para. 7.144).
389Mexico's appellee's submission, para. 68 (referring to Panel Report, paras. 7.128, 7.131, 7.137,
and 7.142-7.145).

185. Annex 1.1 defines the term "technical regulati on" by reference to a "document", which is
defined quite broadly as "something written, inscribed , etc., which furnishes evidence or information
upon any subject". 391 The use of the term "document" could therefore cover a broad range of
instruments or apply to a variety of measures. Annex 1.1 to the TBT Agreement, however, narrows
the scope of measures that can be characterized as a "technical regulation" by referring to a document
that "lays down product characteristics or thei r related processes and production methods, including
the applicable administrative provisions". The ve rb "lay down" is defined as "establish, formulate
definitely (a principle, a rule); prescribe (a course of action, limits, etc.)". 392 Annex 1.1 further
describes a technical regulation by reference to a "d ocument" "with which compliance is mandatory".
The noun "compliance" is defined as "[t]he action of complying". 393 The verb "comply" refers to an
"[a]ct in accordance with or with a request, command, etc." 394 The word "mandatory" means
"obligatory in consequence of a command, compulsory"395, or "being obligatory".396
186. Regarding the subject matter of a technical regulation, we note that the language in Annex 1.1
clarifies that a technical regulation may establish or prescribe "product characteristics or their related
processes and production methods". Annex 1.1 to the TBT Agreement further states that a technical
regulation may include or "deal exclusively with terminology, symbols, packaging, marking or
labelling requirements as they apply to a produc t, process or production method." Regarding the
meaning of the notion of "labelling requirements", we note that the word "requirement" means "a
condition which must be complied with".
397 The term "labelling requirements" thus refers to
provisions that set out criteria or conditions to be fulfilled in order to use a particular label.
187. The second sentence of Annex 1.2, which sets out the definition of "standard" for purposes of
the TBT Agreement, contains language identical to that f ound in the second senten ce of Annex 1.1.
With respect to the second sentence of these provision s, the subject matter of a particular measure is
therefore not dispositive of whether a measure c onstitutes a technical regulation or a standard.
Instead, "terminology", "symbols", "packaging", "mar king", and "labelling requirements" may be the

391Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 731. We note that the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning
Standardization and Related Activities (the "ISO/IEC Guide 2: 1991") establishes that "[a] document is to be
understood as any medium with information recorded on or in it."
392Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1562.
393Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 472.
394Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 473.
395Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1694.
396Merriam Webster's Dictionary of Law, L.P. Wood (ed.) (Merriam-Webster Inc., 1996), p. 304.
397Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 2, p. 2541.

subject-matter of either technical regulations or stan dards. The fact that "labelling requirements" may
consist of criteria or conditions that must be complie d with in order to use a particular label does not
imply therefore that the measure is for that reas on alone a "technical regulation" within the meaning
of Annex 1.1.
188. For all these reasons, we consider that a panel's determination of whether a particular measure
constitutes a technical regulation must be made in th e light of the characteristics of the measure at
issue and the circumstances of the case.
398 In some cases, this may be a relatively straightforward
exercise. In others, the task of the panel may be more complex. Certain features exhibited by a
measure may be common to both technical regulations falling within the scope of Article 2 of the
TBT Agreement and, for example, standards falling under Artic le 4 of that Agreement. Both types of
measure could, for instance, contain conditions that must be met in order to use a label. In both cases,
those conditions could be "compulsory" or "binding" and "enforceable". Such characteristics, taken
alone, cannot therefore be dispositive of the prope r legal characterization of the measure under the
TBT Agreement. Instead, it will be necessary to consider a dditional characteristics of the measure in
order to determine the disciplines to wh ich it is subject under that Agreement. 399 This exercise may
involve considering whether the measure consis ts of a law or a regulation enacted by a
WTO Member, whether it prescribes or prohibits particular conduct, whether it sets out specific
requirements that constitute the sole means of addr essing a particular matter, and the nature of the
matter addressed by the measure.
189. Having examined the meaning of the term "techni cal regulation" as defined in Annex 1.1, we
turn to examine the United States' appeal of th e Panel's conclusion that the measure at issue
constitutes a "technical regulation" within the meaning of the TBT Agreement.
B. Whether the Measure at Issue Constitutes A Technical Regulation
190. As already mentioned, we consider that a de termination of whether a particular measure
constitutes a technical regulation must be made in the light of the features of the measure and the
circumstances of the case.
191. In assessing whether the US "dolphin-safe" labelling provisions c onstitute a technical
regulation, we note first that the measure at issue consists of a law enacted by the US Congress
400 and
regulations pertaining to the use of the "dolphin-safe" label set out in the United States Code of

398See Appellate Body Report, EC – Asbestos , para. 64; and Appellate Body Report, EC – Sardines ,
paras. 192 and 193.
399See Appellate Body Reports, China – Auto Parts, para. 171.
400As noted, the DPCIA is codified in Title 16, Section 1385 of the United States Code.

Federal Regulations .401 In other words, the DPCIA and th e implementing regulations constitute
legislative or regulatory acts of the US federal authorities.402
192. Before the Panel, the United States clarified th at the DPCIA establishes the conditions for use
of a "dolphin-safe" label on tuna products. 403 In addition, the United States referred to the
implementing regulations as the "DPCIA implementing regulations" and stated that "[t]he DPCIA and
implementing regulations are the source and aut hority for understanding the conditions on labelling
tuna products dolphin-safe". 404 The United States further explained that the regulations reflect the
conditions for the use of the "dolphin-safe" label a nd ensure that tuna caught by certain vessels is
labelled "dolphin-safe" only if the conditions set out in the DPCIA have been met.405
193. Taken together, the DPCIA, the implementing re gulations, and the Hogarth ruling set out the
requirements for when tuna products sold in the United States may be labelled as "dolphin-safe".
More specifically, they condition eligibility for a "dolphin-safe" label upon certain documentary
evidence that varies depending on the area where the tuna contained in the tuna product is harvested
and the type of vessel and fishing method by which it is harvested. They also prohibit any reference
to dolphins, porpoises, or marine mammals on the label for tuna products if the tuna contained in such
products does not comply with the labelling conditi ons spelled out in the DPCIA. Other labelling
schemes that do not satisfy the specific requirements in the US measure are therefore prohibited by
virtue of the measure at issue. Consequently , the US measure establishes a single and legally
mandated set of requirements for making any st atement with respect to the broad subject of

401These regulations were promulgated in accordance with the DPCIA and are codified in Title 50,
Section 216, of the United States Code of Federal Regulations.
402Panel Report, para. 7.20.
403Panel Report, para. 7.22 (referring to United States' response to Panel Question 3, paras. 3-6).
405More specifically, the United States argued that:
Regulations pertaining to the use of dolphin safe label are set out in the U.S.
Code of Federal Regulations (CFR). Mexico challenges the provisions set
out at 50 CFR 216.91 and 216.92. These provisions reflect the conditions
for use of the dolphin safe label on tuna products set out in the DPCIA.
Consistent with the DPCIA, section 216.91 sets out the conditions for use of
the dolphin safe label based on whether the tuna was caught in a fishery
where there is a regular and signif icant association between tuna and
dolphins or regular and significant mortalities or serious injury of dolphins.
Section 216.91 also clarif ies that these conditions only apply to vessels in
the ETP that have a carrying capacity greater than 362.8 metric tons, and
section 216.92 contains provisions to ensure that tuna caught by such
vessels is labeled dolphin safe only if the conditions set out in the DPCIA
have been met. Section 216.92 sets out the provisions applicable to
domestic and imported tuna separately, although the basic requirements are
the same and seek to ensure that clai ms that tuna is dolphin safe comply
with U.S. law.
(Panel Report, footnote 194 to para. 7.22 (quoting United States' first written submission to the Panel, para. 31))
(footnotes omitted by the Panel)

"dolphin-safety" of tuna products in the United St ates. As the Panel found, the US "dolphin-safe"
labelling provisions set out "certain requirements that must be complied with in order to make any
claim relating to the manner in which the tuna cont ained in [a] tuna product was caught, in relation to
dolphins".
406 The US measure thus covers the entire field of what "dolphin-safe" means in relation to
tuna products in the United States. We attach im portance to these characteristics of the measure at
issue in assessing whether it can properly be charact erized as a "technical regulation" within the
meaning of the TBT Agreement.
194. We further note that the US measure provi des for specific enforcement mechanisms.407 Thus,
under the DPCIA, it is "a violation of section 45 of title 15 for any producer, importer, exporter,
distributor, or seller of any tuna product … to include on the label of that product the term
'dolphin-safe' or any other term or symbol that falsely claims or suggests that the tuna contained in the
product were harvested using a method of fi shing that is not harmful to dolphins." 408 In addition, the
measure at issue sets out active su rveillance mechanisms to guarant ee compliance with its norms and
imposes sanctions in case of wrongful labelling.409
195. The United States submits that whether the measu re at issue is legally enforceable does not
provide a basis for drawing a distinction be tween technical regulations and standards. 410 T h e
United States explains, for example, that "labe lling requirements" may be subject to enforcement
regardless of whether they are set forth in a standard or in a technical regulation. It is true that
"labelling requirements" in a standard or in a tech nical regulation may be subject to enforcement.
However, the US measure not only sets out certain cond itions for the use of a label, but, in addition, it
enforces a prohibition against the use of any ot her label containing the terms "dolphin-safe",
"dolphins", "porpoises", or "marine mammals" on a tuna product that does not comply with the

406Panel Report, para. 7.143. (original emphasis)
407We note that, in EC – Asbestos, the Appellate Body attached importance to the fact that the measure
was legally enforceable. The Appellate Body added that the measure included "applicable administrative
provisions", with which compliance was mandatory fo r products with certain objective characteristics.
(Appellate Body Report, EC – Asbestos, paras. 72-74)
408Subsection 1385(d)(1) of the DPCIA.
409The Panel noted in this regard that:
… if a product is found to be wrongfully labelled during a spot check, the
product will most likely be seized as evidence. Later on the US authorities
may decide to forfeit, destroy or in the case of imports, have the product re-
exported, depending on the facts and circ umstances of the case. Moreover,
sanctions for offering for sale or export tuna products falsely labelled
"dolphin-safe" may be assessed against any producer, importer, exporter,
distributor or seller who is subject to the jurisdiction of the United States.
Violators may also be prosecuted directly under the DPCIA provisions or
under federal provisions establishing false statement or smuggling
prohibitions or federal labelling standards.

requirements set out in the measure. Moreover, th e enforcement of the US measure does not require
proving that a given conduct is deceptive under a law against deceptive practices. Rather, the
measure at issue establishes that including on the label of a tuna product the term "dolphin-safe", or
even using any label or mark that refers to dol phins, porpoises, or marine mammals without meeting
the conditions set forth in the measure, is, in itself, a violation of Section 45 of Title 15 of the
United States Code.411 In effect, the measure at issue establis hes a single definition of "dolphin-safe"
and treats any statement on a tuna product regard ing "dolphin-safety" that does not meet the
conditions of the measure as a deceptive practice or act.
196. The United States contends that compliance w ith a labelling requireme nt is "mandatory"
within the meaning of Annex 1.1 only "if there is al so a requirement to use the label in order to place
the product for sale on the market". 412 By contrast, in the United States' view, compliance with a
labelling requirement is not mandatory in situations where producers retain the option of not using the
label but nevertheless are able to sell the produc t on the market. The text of Annex 1.1 to the
TBT Agreement does not use the words "market" or "terr itory". Nor does it indicate that a labelling
requirement is "mandatory" only if there is a requirement to use a particular label in order to place a
product for sale on the market. To us, the mere fact that there is no requirement to use a particular
label in order to place a product for sale on the market does not preclude a finding that a measure
constitutes a "technical regulation" within the meani ng of Annex 1.1. Instead, in the context of the
present case, we attach significance to the fact that, while it is possible to sell tuna products without a
"dolphin-safe" label in the United States, any "producer, importer, exporter, distributor or seller"
413 of
tuna products must comply with the measure at issue in order to make any "dolphin-safe" claim.
197. The United States suggests that the Panel's alle gedly erroneous interp retation of Annex 1.1
was "largely based on its reading of the Appellate Body report in EC – Sardines".414 According to the
United States, the Panel's reliance on that Appellate Body report was incorrect for two reasons. First,
in that dispute, neither the panel nor the Appella te Body considered whether compliance with the
measure at issue was mandatory. Second, EC – Sardines involved a requirement that products
marketed as "preserved sardines" be prepared ex clusively from a certain type of sardines. The
United States maintains that this is a product ch aracteristic "intrinsic to" preserved sardines, and
unless preserved sardines met this product characteristic, they were prohibited from being marketed as
such. By contrast, the measure in the present case do es not relate to product characteristics that tuna

411Subsections 1385(d)(1) and 1385(d)(3)(C) of the DPCIA. In response to questioning at the oral
hearing, the United States indicated that the law referred to in the DPCIA is the US law against deceptive acts or
practices.
413Subsection 1385(d)(1) of the DPCIA.
414United States' appellant's submission, footnote 92 to para. 61.

products must meet to be sold on the US market . Rather, tuna products can be sold in the
United States as tuna products either with or without a "dolphin-safe" label.
415
198. The measure at issue in EC – Sardines was a regulation setting out a number of prescriptions
for the sale of "preserved sardines", including the requirement that they contain only one named
species of sardines, to the exclusion of others. U nder the facts of that case, it was possible to sell
these other species of sardines on the EC market, pr ovided that such sardines were not sold under the
appellation "preserved sardines". The fact that the Appellate Body characterized the measure at issue
in EC – Sardines as a "technical regulation" appears to suppor t the notion that the mere fact that it is
legally permissible to sell a product on the market without using a particular label is not determinative
when examining whether a measure is a "technical regulation" within the meaning of Annex 1.1.
199. As noted, a determination of whether a partic ular measure constitutes a technical regulation
must be made in the light of the characteristics of the measure at issue and the circumstances of the
case. In this case, we note that the US measure is composed of legislative and regulatory acts of the
US federal authorities and includes administrative pr ovisions. In addition, the measure at issue sets
out a single and legally mandated definition of a " dolphin-safe" tuna product and disallows the use of
other labels on tuna prod ucts that do not satisfy this defi nition. In doing so, the US measure
prescribes in a broad and exhaustive manner the cond itions that apply for making any assertion on a
tuna product as to its "dolphin-safety", regardless of the manner in which that statement is made. As a
consequence, the US measure covers the entire field of what "dolphin-safe" means in relation to tuna
products. For these reasons, we find that the Panel did not err in characterizing the measure at issue as
a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement.
416
VI. Article 2.1 of the TBT Agreement
200. We turn next to address Mexico's appeal of the Panel's finding that Mexico failed to
demonstrate that the US "dolphin-safe" labelling prov isions are inconsistent with Article 2.1 of the
TBT Agreement.
201. Article 2.1 of the TBT Agreement provides that, with respect to their central government
bodies:
Members shall ensure that in respect of technical regulations,
products imported from the territory of any Member shall be
accorded treatment no less favourable than that accorded to like

415United States' appellant's submission, footnote 92 to para. 61.
416Having found that the measure at issue constitutes a technical regulation, we need not address
Mexico's alternative argument that the US measure is de facto mandatory.

products of national origin and to like products originating in any
other country.
202. Article 2.1 of the TBT Agreement consists of three elements that must be demonstrated in
order to establish an inconsistency with this prov ision, namely: (i) that the measure at issue
constitutes a "technical regulation" within the meani ng of Annex 1.1; (ii) that the imported products
must be like the domestic product and the products of other origins; and (iii) that the treatment
accorded to imported products must be less favourable than that accorded to like domestic products
and like products from other countries. 417 Mexico's appeal concerns only the Panel's finding in
respect of the third element, namely, the "treat ment no less favourable" standard in Article 2.1. 418 We
further note that the United States ha s not appealed the Panel's finding that Mexican tuna products are
"like" tuna products of United States' origin and tu na products originating in any other country within
the meaning of Article 2.1 of the TBT Agreement.
A. The Panel's Findings regarding "Treatment No Less Favourable"
203. On the basis of its reading of Article 2.1 of the TBT Agreement , the Panel found that less
favourable treatment would arise in respect of technical regulations:
… if imported products originating in any Member were placed at a
disadvantage, compared to lik e domestic products and imported
products originating in any othe r country, with respect to the
preparation, adoption or application of technical regulations.419
204. The Panel observed that the essence of the measures covered under Article 2.1 of the
TBT Agreement is to set out certain product characteristics or their related processes and production
methods or, for example, labelling requirements as they apply to products or processes and production
methods that must be complied with. The Panel adde d that "[d]istinctions in treatment may therefore
arise … but they must not be designed or applied to the detriment of imports or imports of certain
origins".420 The Panel further emphasized that the question of what is less favourable treatment within
the meaning of Article 2.1 is also "informed by the terms of the preamble [of the TBT Agreement],
which makes it clear that measures covered by the TBT Agreement must not be 'applied in a manner
which would constitute a means of arbitrary or un justifiable discrimination between countries where
the same conditions prevail'."421

417Appellate Body Report, US – Clove Cigarettes, para. 87.
418We recall that, earlier in our analysis, we found that the Panel did not err in characterizing the
measure at issue as a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement.
419Panel Report, para. 7.273.
420Panel Report, para. 7.276.
421Panel Report, para. 7.276.

205. In its analysis of less favourable treatment, the Panel examined first the regulatory distinction
upon which the US measure was based, that is, the di stinction between the treatment of tuna products
containing tuna caught by setting on dolphins and the treatment of tuna pr oducts containing tuna
caught by other fishing methods, and found that this distinction, in itself, does not place "Mexican
tuna products at a disadvantage compared to US and other imported tuna products".
422 The Panel
reasoned that denying the "dolphin-safe" label to tuna caught by setting on dolphins does not
necessarily imply that less favourable treatment is afforded to Mexican tuna products, because "any
fleet operating anywhere in the world must comply with the requirement". 423 For the Panel, even
assuming "that tuna of Mexican origin might more like ly not be eligible for the label because it would
be caught in the ETP by setting on dolphins, this would not necessarily imply that products processed
in Mexico would be less likely to qualify for the label". 424 In the Panel's view, this is because
"Mexican processors could choose to make their pr oducts from tuna of other origins meeting the
requirements of the label".425
206. The Panel then considered whether less fa vourable treatment nonetheless arises from the
"application" of the US measure, due to the prac tices followed by Mexican and other fishing fleets. 426
The Panel observed that "at least two thirds of Mexico's purse seine tuna fleet fishes in the ETP by
setting on dolphins (therefore fishing for tuna th at would not be eligible to be contained in a
'dolphin-safe' tuna product under the US dolphin-safe labelling provisions)". 427 The Panel further
noted that the US fishing fleet currently did not appear to practise setting on dolphins in the ETP. 428
Based on its analysis, the Panel found that "as the practices of the US and Mexican tuna fleets
currently stand, most tuna caught by Mexican vessels, being caught in the ETP by setting on dolphins,
would not be eligible for inclusion in a dolphi n-safe product under the US dolphin-safe labelling
provisions".
429 By contrast, "most tuna caught by US v essels is potentially eligible for the label,
provided that it otherwise complies with the requirements of the measures". 430 However, the Panel
was "not persuaded that it follows from these f acts that the United States affords Mexican tuna
products 'less favourable treatment' than that afforded to tuna products originating in the United States
or in any other country".431 The Panel explained that, as of 1990, when the first version of the DPCIA
was enacted, "the United States and Mexico were in a comparable position with regard to their fishing

422Panel Report, paras. 7.304 and 7.311.
423Panel Report, para. 7.305.
424Panel Report, para. 7.310.
425Panel Report, para. 7.310.
426Panel Report, para. 7.311.
427Panel Report, para. 7.314.
428Panel Report, para. 7.316.
429Panel Report, para. 7.317.
430Panel Report, para. 7.317.
431Panel Report, para. 7.319.

practices in the ETP, in that both of them had th e majority of their fleet operating in the ETP
composed of purse seine vessels potentially setting on dolphins". 432 While US vessels "gradually
discontinued setting on dolphins to catch tuna, and abandoned the practice entirely in 1994, four years
after the enactment of the measures" 433, the Mexican fleet "concentrated its efforts on complying with
the AIDCP requirements on observer coverage and fishing gear and equipment" rather than
abandoning setting on dolphins.434 As a result, the Mexican fleet a nd other fishing fleets that chose to
continue to set on dolphins "were not eligib le for dolphin-safe labelling under the existing
US measures, while tuna caught without setting on dolphins remained eligible." 435 The Panel was
therefore not persuaded that "any current discrepancy in the[ ] relative situations [of the Mexican and
other fishing fleets]" was a result of the US "dolphi n-safe" labelling provisions rather than the result
of the choices of private actors.436 The Panel added that the existence of adaptation costs, in itself, did
not establish less favourable treatment. 437 The Panel further remarked that the decisions by major
processors of tuna products not to purchase tuna caught by setting on dolphins predated the adoption
of the first version of the DPCIA in 1990, which first defined "dolphin-safe" tuna harvested by a
vessel using purse seine nets in the ETP as tuna that is not caught on a trip involving intentional
deployment on, or encirclement of, dolphins.
438 Based on its analysis, the Panel was therefore not
convinced that access to the principal US distribut ion channels was being denied to Mexican tuna
products by the measure at issue. Nor was the Panel persuaded that both retailers and consumers
would purchase Mexican tuna products if they were eligible for a "dolphin-safe" label, as Mexico had
argued.
207. On this basis, the Panel concluded that Mexico had failed to demonstrate that the
US "dolphin-safe" labelling provisions afford less favourable treatment to Mexican tuna products
within the meaning of Article 2.1 of the TBT Agreement. Instead, the Panel found that the
US "dolphin-safe" labelling provisions "do not inherently discriminate on the basis of the origin of the
products", and "do not make it impossible for Mexican tuna products to comply with" the requirement
not to set on dolphins.439 Rather, it considered significant the fact that "the impact of the US dolphin-
safe provisions on different operators on the market and on tuna products of various origins depends

432Panel Report, para. 7.324.
433Panel Report, para. 7.327.
434Panel Report, para. 7.331.
435Panel Report, para. 7.331.
436Panel Report, para. 7.334. In support of its pos ition, the Panel referred to the Appellate Body's
finding in Korea – Various Measures on Beef that "where it is the decision of private actors rather than the
governmental measure that results in the segregation of imported and domestic like products, this would not be a
breach of Article III:4 insofar as what is addressed by this provision is merely the governmental intervention
that affects the conditions under which like goods, dome stic and imported, compete in the market." (Panel
Report, para. 7.334 (referring to Appellate Body Report, Korea – Various Measures on Beef, para. 149))
437Panel Report, para. 7.342.
438Panel Report, para. 7.361.
439Panel Report, para. 7.377.

on a number of factors that are not related to the nationality of the product, but to the fishing and
purchasing practices, geographical location, relative in tegration of different segments of production,
and economic and marketing choices."
440 The Panel concluded therefore that "any particular adverse
impact felt by Mexican tuna products on the US market" was "primarily the result of 'factors or
circumstances unrelated to the foreign origin of the product', including the choices made by Mexico's
own fishing fleet and canners".
441
B. Mexico's Appeal regarding "Treatment No Less Favourable"
208. On appeal, Mexico argues that the Panel erred in its interpretation and application of the
phrase "treatment no less favourable" in Article 2.1 of the TBT Agreement. According to Mexico, the
Panel failed to "fully consider the context of Article 2.1 and the object and purpose of the
TBT Agreement."442 Mexico submits that the "applicable test" under Article 2.1 of the
TBT Agreement is to assess "whether a measure modifies th e conditions of competition in the relevant
market to the detriment of the imported products in question." 443 Mexico considers, however, that
technical regulations that meet the criteria of the sixth recital of the preamble of the TBT Agreement444
"should not be prohibited by Article 2.1 even if they modify the conditions of competition in the
relevant market to the detriment of the imported product in question." 445 Mexico reasons that the
preamble "modifies the meaning of the substantive obligation in Article 2.1 so that discrimination that
is prohibited in that Article does not extend to measures meeting the criteria of the preamble." 446 In
addition to challenging the Panel's in terpretation and application of Ar ticle 2.1, Mexico also claims

440In support of its approach, the Panel pointed to the Appellate Body's statement in Dominican
Republic – Import and Sale of Cigarettes that the "existence of a detrimental effect on a given imported product
resulting from a measure does not necessarily imply that this measure accords less favourable treatment to
imports if the detrimental effect is explained by factors or circumstances unrelated to the foreign origin of the
product". (Panel Report, paras. 7.375 and 7.378 (referring to Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 96))
441Panel Report, para. 7.378.
442Mexico's other appellant's submission, para. 86.
443Mexico's other appellant's submission, para. 99.
444The sixth recital reads as follows:
Recognizing that no country should be prevented from taking measures
necessary to ensure the quality of its exports, or for the protection of human,
animal or plant life or health, of the environment, or for the prevention of
deceptive practices, at the levels it co nsiders appropriate, subject to the
requirement that they are not applied in a manner which would constitute a
means of arbitrary or unjustifiable discrimination between countries where
the same conditions prevail or a disguised restriction on international trade,
and are otherwise in accordance with the provisions of this Agreement.
445Mexico's other appellant's submission, para. 109.
446Mexico's other appellant's submission, para. 109.

that the Panel acted inconsistently with its obligatio n to make an objective assessment of the matter in
accordance with Article 11 of the DSU.447
209. The United States considers that the Panel properly interpreted Article 2.1 of the
TBT Agreement and rightly found that the US "dolphin- safe" labelling provisions do not accord
Mexican tuna products "less favourable treatment" than it accords to US tuna products and tuna
products originating in other countries. 448 In the United States' view, an inquiry into whether a
measure provides "less favourable treatment" requir es a determination of whether the "measure
accords different treatment to importe d products versus domestic products and whether it does so
based on origin". 449 That such different treatment must be based on origin de jure or de facto , as
opposed to origin-neutral criteria, is, according to the United States, evident from Article 2.1 and the
relevant context provided by the TBT Agreement and Article III of the GATT 1994. Regarding the
question of how to assess whether th e treatment accorded to imported products is less favourable, the
United States observes that the covered agreements do not specify a "precise approach to this
question". In previous cases on Article III of th e GATT 1994, panels and th e Appellate Body have
"typically" assessed whether, if a measure provides different treatment to imported and like products,
it modifies the conditions of competition to the detr iment of imported products. However, for the
United States, the emphasis is on whether a measure modifies the conditions of competition based on
the origin of the imported product.450
210. We begin our analysis by examining the legal standard of the "treatment no less favourable"
requirement in Article 2.1 of the TBT Agreement . We then turn to Mexico's appeal regarding the
Panel's interpretation and application of this requirement.
C. "Treatment No Less Favourable" under Article 2.1 of the TBT Agreement
211. Article 2.1 of the TBT Agreement applies "in respect of technical regulations". A technical
regulation is defined in Annex 1.1 as a "[d]ocumen t which lays down product characteristics or their
related processes and production methods … with which compliance is mandatory". As such,
technical regulations are measures that, by their ve ry nature, establish distinctions between products

447Mexico's other appellant's submission, para. 188.
449United States' appellee's submission, para. 32 (referring to Panel Report, Brazil – Retreaded Tyres ,
paras. 7.420 and 7.421; Panel Report, Canada – Autos , paras. 7.179-7.182; Panel Report, Canada – Wheat
Exports and Grain Imports , para. 6.164; Appellate Body Reports, China – Auto Parts , paras. 192-195;
Appellate Body Report, Korea – Various Measures on Beef, paras. 143 and 144; Panel Report, Mexico – Taxes
on Soft Drinks, paras. 8.120-8.122; Panel Report, India – Autos , paras. 7.199-7.202; Panel Report, US – FSC
(Article 21.5 – EC), paras. 8.154-8.157; and Panel Report, US – Gasoline, para. 6.10). (original emphasis)
450United States' appellee's submission, para. 35 (referring to Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 96; and Panel Report, EC – Approval and Marketing of Biotech
Products, paras. 7.2514 and 7.2515).

according to their characteristics or their rela ted processes and production methods. Article 2.1
should not be read therefore to mean that any distinctions, in particular ones that are based exclusively
on particular product characteristics or on par ticular processes and production methods, would per se
constitute "less favourable treatment" within the meaning of Article 2.1.
451
212. The context provided by Article 2.2 452 supports a reading that Article 2.1 does not operate to
prohibit a priori any restriction of international trade. 453 The question of what is "less favourable
treatment" within the meaning of Article 2.1 is al so informed by a consideration of the context
provided by the preamble of the TBT Agreement.454
213. The sixth recital of the preamble recognizes that a WTO Member may take measures
necessary for, inter alia , the protection of animal or plant life or health, or for the prevention of
deceptive practices, at the levels it considers appr opriate, subject to the requirement that such
measures "are not applied in a ma nner which would constitute a means of arbitrary or unjustifiable
discrimination" or a "disguised restriction on in ternational trade" and are "otherwise in accordance
with the provisions of this Agreement". Althou gh the sixth recital does not explicitly set out a
substantive obligation, we consider it nonetheless sheds light on the meaning and ambit of the
"treatment no less favourable" requirement in Article 2.1, by making clear, in particular, that technical
regulations may pursue legitimate objectives but mu st not be applied in a manner that would
constitute a means of arbitrary or unjustifiable discrimination.455
214. Regarding the context provided by other cove red agreements, we further note that the
expression "treatment no less favourable" can be found in Article III:4 of the GATT 1994. 456 In the
context of that provision, the Appellate Body has in dicated that whether or not imported products are

451Appellate Body Report, US – Clove Cigarettes, para. 169.
452Article 2.2 of the TBT Agreement provides:
Members shall ensure that technical regulations are not prepared, adopted or
applied with a view to or with the effect of creating unnecessary obstacles to
international trade. For this purpose, technical regulations shall not be more
trade-restrictive than necessary to fu lfil a legitimate objective, taking
account of the risks non-fulfilment would create.
453Appellate Body Report, US – Clove Cigarettes, para. 171.
454Article 31.2 of the Vienna Convention states, in relevant part, that "[t]he context for the purpose of
the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes".
455Appellate Body Report, US – Clove Cigarettes, para. 173.
456Article III:4 of the GATT 1994 reads:
The products of the territory of any Member imported into the territory of
any other Member shall be accorded tr eatment no less favourable than that
accorded to like products of nationa l origin in respect of all laws,
regulations and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. The provisions of this
paragraph shall not prevent the application of differential internal
transportation charges which are ba sed exclusively on the economic
operation of the means of transport and not on the nationality of the product.

treated "less favourably" than like domestic products should be assessed "by examining whether a
measure modifies the conditions of competition in the relevant market to the detriment of imported
products.457 We consider these previous findings by the Appellate Body to be instructive in assessing
the meaning of the expression "treatment no less fa vourable", provided that the specific context in
which the term appears in Article 2.1 of the TBT Agreement is taken into account.458
215. As the Appellate Body has previously expl ained, when assessing claims brought under
Article 2.1 of the TBT Agreement , a panel should therefore seek to ascertain whether the technical
regulation at issue modifies the conditions of compet ition in the relevant market to the detriment of
the group of imported products vis-à-vis the group of like domestic products or like products
originating in any other country. 459 The existence of such a detrimental effect is not sufficient to
demonstrate less favourable treatment under Article 2.1. 460 Instead, in US – Clove Cigarettes , the
Appellate Body held that a "panel must further analyze whether the detrimental impact on imports
stems exclusively from a legitimate regulatory distin ction rather than reflecting discrimination against
the group of imported products."461
216. With respect to the burden of showing that a technical regulation is inconsistent with
Article 2.1 of the TBT Agreement, we recall that it is well-established "that the burden of proof rests
upon the party, whether complaining or defending, w ho asserts the affirmative of a particular claim or
defence".462 Where the complaining party has met the burden of making its prima facie case, it is then
for the responding party to rebut that showing. The nature and scope of arguments and evidence
required to establish a prima facie case will necessarily vary according to the facts of the case. In the
context of Article 2.1 of the TBT Agreement, the complainant must prove its claim by showing that
the treatment accorded to imported products is "l ess favourable" than that accorded to like domestic
products or like products originating in any othe r country. If it has succeeded in doing so, for
example, by adducing evidence and arguments sufficient to show that the measure is not even-handed,
this would suggest that the measure is inconsistent with Article 2.1. 463 If, however, the respondent

457Appellate Body Report, Korea – Various Measures on Beef , para. 137. (original emphasis) In
Thailand – Cigarettes (Philippines) , the Appellate Body further clarified that there must be in every case a
"genuine relationship" between the measure at issue itself "and its adverse impact on competitive opportunities
for imported versus like domestic products to support a finding that imported products are treated less
favourably". (Appellate Body Report, Thailand – Cigarettes (Philippines), para. 134)
461Appellate Body Report, US – Clove Cigarettes, para. 182. See also para. 215. The Appellate Body
also stated that a panel must exam ine, in particular, whether the tech nical regulation is even-handed. ( Ibid.,
para. 182)
462Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:1, 323, at 335.

shows that the detrimental impact on importe d products stems exclusively from a legitimate
regulatory distinction, it follows that the challenged measure is not inconsistent with Article 2.1.
217. With this in mind, we turn to review the Panel's interpretation of Article 2.1 of the
TBT Agreement and the analytical approach adopted by the Panel.
1. The Panel's Approach to Assessing "Treatment No Less Favourable"
218. Mexico argues that the Panel correctly cons idered the ordinary meaning of the phrase
"treatment no less favourable". Yet, in Mexico's vi ew, the Panel failed to "fully consider the context
of Article 2.1 and the object and purpose of the TBT Agreement".464 Mexico recalls that although the
TBT Agreement does not include a substantive equivalent to the general exceptions found in, for
example, Article XX of the GATT 1994, the sixth recital of the preamble of the TBT Agreement does
include similar language. Referring to the text of the sixth recital, Mexico submits that "technical
regulations that meet all the criteria of the recital should not be prohibited by Article 2.1 even if they
modify the conditions of competition in the relevant market to the detriment of the imported product
in question."465 Mexico asserts, however, that the US " dolphin-safe" labelling provisions do not meet
these criteria.
219. As explained above, we consider that the preamble of the TBT Agreement informs the
meaning of Article 2.1. However, we do not agr ee with Mexico's argument that compliance with
Article 2.1 must be assessed by examining first wh ether a technical regulation satisfies each of the
criteria of the sixth recital, and then, as a second step, examining whether it modifies the conditions of
competition in the relevant market to the detrimen t of the imported products. Mexico appears, in
effect, to be suggesting that the preamble sets out a test that is separate and independent from
Article 2.1. This, in our view, does not find support in the text of Article 2.1. Moreover, the approach
suggested by Mexico would appear to contradict Me xico's own view that language in the preamble is
not substantive.466
220. Mexico argues that the Panel departed from th e way in which the phrase "treatment no less
favourable" has been examined in previous di sputes under Article III:4 of the GATT 1994 and erred
by conducting a detailed analysis of whether "Mexican tuna products could somehow get access to the
label", suggesting that this reflects an erroneous interpretation of Article 2.1. 467 Mexico faults the
Panel in particular for imposing a standard under wh ich a measure could be f ound to be inconsistent

464Mexico's other appellant's submission, para. 86.
465Mexico's other appellant's submission, para. 109.
466Mexico's other appellant's submission, para. 104.
467Mexico's other appellant's submission, paras. 143 and 144.

with Article 2.1 of the TBT Agreement only if it imposed an "absolute prohibition" on imports. 468
Mexico recognizes that, under the facts of this case, there was no "absolute prohibition" or bar "to the
use of the label by Mexican tuna products because th e label was available to Mexican tuna products if
the Mexican tuna fleet and Mexican canneries ac cepted the conditions of access to the label and
modified their practices to comply with those conditions." 469 However, Mexico emphasizes that the
question was not whether there was such a prohibitio n. Instead, argues Mexico, the phrase "treatment
no less favourable" in Article 2.1 of the TBT Agreement must be interpreted and applied with
reference to whether imported products are provi ded equal competitive opportunities as compared to
like domestic products and like products from other countries.470
221. An enquiry into whether a measure comports with the "treatment no less favourable"
requirement in Article 2.1 does not hinge on wh ether the imported products could somehow get
access to an advantage, for example, by complyi ng with all applicable conditions. Rather, as
explained above, a determination of whether im ported products are accorded "less favourable
treatment" within the meaning of Article 2.1 of the TBT Agreement calls for an analysis of whether
the contested measure modifies the conditions of co mpetition to the detriment of imported products.
Contrary to what the Panel appears to have assume d, the fact that a complainant could comply or
could have complied with the conditions imposed by a contested measure does not mean that the
challenged measure is therefore consistent with Article 2.1 of the TBT Agreement.
222. Mexico submits that the Panel erred in relyin g on the findings of the Appellate Body Report
in Dominican Republic – Import and Sale of Cigarettes because the facts of this dispute are different
from those in that case. 471 In particular, Mexico points out that in this dispute the discriminatory
effect is not between certain producers and importers but between the group of Mexican tuna products
overall compared to the group of like tuna pro ducts from the United States and, in the case of
Mexico's MFN claim, between the group of Mexica n tuna products and the group of tuna products
from other countries.472 Mexico adds that a measure that is "origin neutral" on its face can still violate
the national treatment obligation if it has the effect "of modifying the conditions of competition to the
detriment of the imported product by denying the imported product an equality of competitive
opportunities with a like domestic product in th e marketplace of the importing WTO Member." 473

468Mexico's other appellant's submission, para. 143.
469Mexico's other appellant's submission, para. 143.
470Mexico's other appellant's submission, paras. 97 and 99.
471Mexico's other appellant's submission, paras. 170-172 (referring to Panel Report, para. 7.375, in turn
quoting Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 96).
472Mexico's other appellant's submission, para. 172.
473Mexico's other appellant's submission, para. 174.

According to Mexico, "[i]t is only when the re levant facts are examined as a whole that the de facto
discrimination becomes apparent."
474
223. The United States counters that it is not the Pane l, but Mexico, that misconstrues the findings
of the Appellate Body in Dominican Republic – Import and Sale of Cigarettes .475 The United States
also disagrees with Mexico's assertion that the Pane l's interpretation is "somehow at odds with the
notion that discrimination may be de facto as well as de jure".476 According to the United States, the
Panel fully understood the notion and ambit of de facto discrimination. Yet, "the fact that some
imported products may fall within the group of like products that are subject to different treatment
that may be less favourable alone is not evidence th at a measure accords less favourable treatment to
imported products as compared to like domestic products, particularly where there is evidence that the
basis for the different treatment is not in fact origin." 477 Finally, although the United States agrees
with Mexico that the measure at issue restri cts the option of selling tuna products labelled
"dolphin-safe" that contain tuna caught by setting on dolphins, it argues that this is not evidence that
the US measure "establishes competitive conditions that are less favourable for imported products".478
Instead, the United States submits that "any ch ange the U.S. measure introduced regarding the
conditions under which tuna products compete is not one that modified the conditions of competition
to the detriment of imported tuna products originating in some countries as compared to others", since
"all tuna products compete under the same conditions", irrespective of their origin.479
224. In finding that Mexico had failed to dem onstrate that the US "dolphin-safe" labelling
provisions afford "less favourable treatment" to Mexican tuna products within the meaning of
Article 2.1 of the TBT Agreement , the Panel reasoned, inter alia , that "the measures at issue, in
applying the same origin-neutral requirement to all tuna products, do not inherently discriminate on
the basis of the origin of the products".480 The Panel added that it appears that:
… the impact of the US dolphin-safe provisions on different
operators on the market and on t una products of various origins
depends on a number of factors that are not related to the nationality
of the product, but to the fishing and purchasing practices,
geographical location, relative inte gration of different segments of
production, and economic and marketing choices. In this context,
any particular adverse impact fe lt by Mexican tuna products on the
US market is, in our view, primarily the result of "factors or

474Mexico's other appellant's submission, para. 175.
476United States' appellee's submission, para. 87 (referring to Mexico's other appellant's submission,
para. 174).
480Panel Report, para. 7.377.

circumstances unrelated to the foreign origin of the product",
including the choices made by Mexico's own fishing fleet and
canners.
481
225. In its analysis, the Panel appears to juxtapose f actors that "are related to the nationality of the
product" with other factors such as "fishing and purchasing practices, geographical location, relative
integration of different segments of production, and economic and ma rketing choices." In so doing,
the Panel seems to have assumed, incorrectly in our view, that regulatory distinctions that are based
on different "fishing methods" or "geographi cal location" rather than national origin per se cannot be
relevant in assessing the consistency of a par ticular measure with Article 2.1 of the TBT Agreement.
The Panel's approach is difficult to reconc ile with the fact that a measure may be de facto inconsistent
with Article 2.1 even when it is origin-neutral on its face. As the Appella te Body explained in
US – Clove Cigarettes , in making a determination of whether a measure is de facto inconsistent with
Article 2.1, "a panel must 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." 482 The Panel failed to conduct
such an analysis in the present case. Contrary to the Panel, we consid er that in an analysis of "less
favourable treatment" under Article 2.1, any adverse impact on competitive opportunities for imported
products vis-à-vis like domestic products that is caused by a particular measure may potentially be
relevant.483
226. Mexico also faults the Panel for failing to find th at the US measure is "discriminatory" in that
it uses a market access restriction to "pressure" Me xico and the Mexican fleet to adopt essentially the
same "dolphin-safe" regime as in force in the United States, thereby per se targeting the origin of the
tuna products. 484 As noted, technical regulations inheren tly establish distinctions between products
according to their characteristics or their related processes and production methods. Thus, Article 2.1
should not be read to mean that any distinction would per se accord "less favourable treatment" within
the meaning of that provision. At the same time, we have noted that any adverse impact on
competitive opportunities for imported products vis-à-vis like domestic products that is caused by a
technical regulation may potentially be relevant for an assessment of "less favourable treatment". It
may thus have been pertinent for the Panel to c onsider, along with other factors, the question of
whether the US measure had the effect of exerting pressure on Mexico to modify its practices. This
alone, however, would not be sufficient to establish a breach of Article 2.1.

481Panel Report, para. 7.378.
482Appellate Body Report, US – Clove Cigarettes, para. 182.
483Appellate Body Report, US – Clove Cigarettes, footnote 372 to para. 179.
484Mexico's other appellant's submission, paras. 178 and 179 (referring to Appellate Body Report,
US – Shrimp, para. 164).

227. In sum, we consider that the Panel applie d an incorrect approach to assessing whether the
measure at issue is inconsistent with Article 2.1 of the TBT Agreement.
D. Whether the US Measure Is Inconsistent with Article 2.1 of the TBT Agreement
228. Based on our interpretation of Article 2.1 of the TBT Agreement set out above, we now
consider whether the US "dolphin-safe" labelling prov isions are inconsistent with this provision, as
Mexico contends.
229. As noted above, Article 2.1 of the TBT Agreement consists of three elements each of which
must be demonstrated in order to establish inconsis tency with this provision, namely: (i) that the
measure at issue constitutes a technical regulation w ithin the meaning of Annex 1.1; (ii) that the
imported products must be "like" the domestic product and the products of other origins; and (iii) that
the treatment accorded to imported products must be less favourable than that accorded to like
domestic products and like products from other countries.
485
230. Earlier in our analysis, we found that the Pane l did not err in characterizing the measure at
issue as a technical regulation within the meani ng of Annex 1.1. We further note that the
United States has not appealed the Panel's finding th at Mexican tuna products are "like" tuna products
of US origin and tuna products originating in any other country within the meaning of Article 2.1 of
the TBT Agreement.486 This brings us to the question of whether, in the light of the findings of fact
made by the Panel and uncontested facts on the record, it can be concluded that Mexico has
established that the US "dolphin-safe" labelling provisions accord "less favourable treatment" to
Mexican tuna products than that accorded to tuna products of the United States and tuna products
originating in other countries.
231. Our analysis of this issue proceeds in two parts. First, we will assess whether the measure at
issue modifies the conditions of competition in the US market to the detriment of Mexican tuna
products as compared to US tuna products or tu na products originating in any other Member. 487
Second, we will review whether any detrimental im pact reflects discriminat ion against the Mexican
tuna products.
232. Our analysis will scrutinize, in particular, whether, in the light of the factual findings made by
the Panel and undisputed facts on the record, the US measure is even-handed in the manner in which

485Appellate Body Report, US – Clove Cigarettes, para. 87.
486See Panel Report, para. 7.251.

it addresses the risks to dolphins arising from different fishing methods in different areas of the
ocean.488
1. Whether the Measure Modifies the Conditions of Competition in the
US Market to the Detriment of Mexican Tuna Products
233. The Panel found that the "dolphin-safe" labe l has "significant commercial value on the
US market for tuna products". 489 The Panel further found that Mexico had presented evidence
concerning retailers' and final cons umers' preferences regarding tuna products, which, in the Panel's
view, confirmed the value of the "dolphin-safe" label on the US market. 490 On this basis, the Panel
agreed with Mexico that access to the "dolphi n-safe" label constitutes an "advantage" on the
US market.491 These findings have not been appealed.
234. The Panel further found that: (i) "the Mexican t una cannery industry is vertically integrated,
and the major Mexican tuna products producers and canneries own their vessels, which operate in the
ETP"492; (ii) "at least two thirds of Mexico's pur se seine tuna fleet fishes in the ETP by setting on
dolphins" and is "therefore fishing for tuna that would not be eligible to be contained in a
'dolphin-safe' tuna product under the US dolphin-safe labelling provisions" 493; (iii) "the US fleet
currently does not practice setting on dolphins in the ETP" 494; (iv) "as the practices of the US and
Mexican tuna fleets currently stand, most tuna caught by Mexican vessels, being caught in the ETP by
setting on dolphins, would not be eligible fo r inclusion in a dolphin-safe product under the
US dolphin-safe labelling provisions", while "most t una caught by US vessels is potentially eligible
for the label".495
235. In our view, the factual findings by the Panel clearly establish that the lack of access to the
"dolphin-safe" label of tuna products containing tu na caught by setting on dolphins has a detrimental
impact on the competitive opportunities of Mexican tuna products in the US market.
236. Mexico and the United States disagree as to wh ether any detrimental impact on Mexican tuna
products results from the measure itself rather than from the actions of private parties. In assessing
whether there is a genuine relationship between th e measure at issue and an adverse impact on
competitive opportunities for imported products, the relevant question is whether governmental action

489Panel Report, para. 7.289.
490Panel Report, para. 7.290 (referring to Panel Exhibit MEX-58 (BCI)).
491Panel Report, para. 7.291.
492Panel Report, para. 7.310.
493Panel Report, para. 7.314.
494Panel Report, para. 7.316.
495Panel Report, para. 7.317. See also paras. 7.344, 7.357, and 7.533.

"affects the conditions under which like goods, domestic and imported, compete in the market within
a Member's territory".
496 In Korea – Various Measures on Beef, the Appellate Body reasoned that:
… the dramatic reduction in numbe r of retail outlets for imported
beef followed from the decisions of individual retailers who could
choose freely to sell the domestic product or the imported product.
The legal necessity of making a choice was, however, imposed by the
measure itself. The restricted natu re of that choice should be noted.
The choice given to the meat retailers was not an option between
remaining with the pre-existing unified distribution set-up or going to
a dual retail system. The choice was limited to selling domestic beef
only or imported beef only. Thus , the reduction of access to normal
retail channels is, in legal contempla tion, the effect of that measure.
In these circumstances, the intervention of some element of private
choice does not relieve Korea of responsibility under the GATT 1994
for the resulting establishment of competitive conditions less
favourable for the imported product than for the domestic product.
497
(original emphasis)
237. The relevant question is thus whether the governmental intervention "affects the conditions
under which like goods, domestic and imported, co mpete in the market within a Member's
territory".498 In this regard, we recall that it is the me asure at issue that establishes the requirements
under which a product can be labelled "dolphin-safe" in the United States. As noted by the Panel:
… access to the label is controlled by compliance with the terms of
the measures. Therefore, to the exte nt that access to the label is an
advantage on the marketplace, this advantage is provided by the
measures themselves. The exact va lue of the advantage provided by
access to the label on the marketplac e will depend on the commercial
value attributed to it by operators on the market, including retailers
and final consumers.
499
238. Moreover, while the Panel agreed with the United States that "US consumers' decisions
whether to purchase dolphin-safe tuna products are the result of their own choices rather than of the
measures", it noted that:
… it is the measures themselves that control access to the label and
allow consumers to express their preferences for dolphin-safe tuna.
An advantage is therefore afforded to products eligible for the label
by the measures, in the form of access to the label.
500

496Appellate Body Report, Korea – Various Measures on Beef, para. 149.
497Appellate Body Report, Korea – Various Measures on Beef, para. 146.
498Appellate Body Report, Korea – Various Measures on Beef, para. 149.
499Panel Report, para. 7.285.
500Panel Report, para. 7.287.

239. These findings by the Panel suggest that it is th e governmental action in the form of adoption
and application of the US "dolphin-safe" labelling provisions that has modified the conditions of
competition in the market to the detriment of Mexi can tuna products, and that the detrimental impact
in this case hence flows from the measure at issue. Moreover, it is well established that WTO rules
protect competitive opportunities, not trade flows. 501 It follows that, even if Mexican tuna products
might not achieve a wide penetration of the US mark et in the absence of the measure at issue due to
consumer objections to the method of setting on dolphins, this does not change the fact that it is the
measure at issue, rather than private actors, that denies most Mexican tuna products access to a
"dolphin-safe" label in the US market. The fact th at the detrimental impact on Mexican tuna products
may involve some element of private choice does not, in our view, relieve the United States of
responsibility under the TBT Agreement , where the measure it adopts modifies the conditions of
competition to the detriment of Mexican tuna products.502
240. In the light of the above, we consider that it is the measure at issue that modifies the
competitive conditions in the US market to the detrim ent of Mexican tuna products. We turn next to
the issue of whether this detrimental impact reflects discrimination.
2. Whether the Detrimental Impact Reflects Discrimination
241. Mexico's claim of discrimination may be summarized as follows:
The U.S. dolphin-safe labelling provisions are discriminatory.
Imports of tuna products produced from tuna harvested outside the
ETP – in other words, virtually all of the tuna products currently sold
in the U.S. market – can be labelled as dolphin-safe under relaxed
compliance standards even though there are no protections for
dolphins outside the ETP. Meanwh ile, tuna products from Mexican
producers – who have taken extens ive and demonstratively highly
successful measures to protect dolphins – are prohibited from using
the label.
503
242. The Panel found that the US measure pursues th e following objectives: (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 US market is not used to encour age fishing fleets to catch tuna in a manner that
adversely affects dolphins". 504 The Panel accepted these objectives as legitimate within the meaning

501Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III
(Article 21.5 – US), para. 469 (referring to Appellate Body Report, EC – Bananas III, para. 252, in turn referring
to GATT Panel Report, US – Superfund, para. 5.1.9).
502See Appellate Body Report, Korea – Various Measures on Beef, para. 146.
503Mexico's other appellant's submission, para. 129.
504Panel Report, para. 7.401.

of Article 2.2 of the TBT Agreement .
505 The Panel further noted that "as described by the
United States itself, its measures seek to address a range of adverse effects of fishing techniques on
dolphins", including "situations in which dolphins are killed or seriously injured."506
243. The Panel made factual findings and reviewed a fair amount of evidence and arguments in the
context of its analysis under Article 2.2 that are relevant to the issue of whether the detrimental impact
to Mexican tuna products reflects discrimination and thus are pertinent to our assessment of the
measure at issue under Article 2.1. We begin by re viewing the uncontested facts on the record of the
Panel proceedings, and factual findings by the Panel that are not challenged on appeal, before turning
to other findings made by the Panel which are subj ect to claims brought by the United States under
Article 11 of the DSU.
(a) Uncontested Findings by the Panel
244. First, regarding the issue of dolphin mortality as a result of setting on dolphins in the ETP, the
Panel found that:
[i]t is undisputed, in particular, that the fishing method known as
setting on dolphins may result in a substantial amount of dolphin
mortalities and serious injuries, especially when used without
applying certain fishing gear and procedures designed to reduce
dolphin bycatch. The number of dolphins killed in the ETP before
the adoption of the controls established by the AIDCP*, and the
ensuing degradation of the dolphi ns stocks in this area, are
illustrative of the potentially devastating consequences that tuna
fishing activities may have on dolphins.
507
* [original footnote 635] Mexico's first written submission, para. 50.
245. The Panel also noted that "both parties r ecognize that setting on dolphins may adversely
affect dolphins".508 It stated that the "number of dolphins killed in the ETP before the adoption of the
controls established by the AIDCP, and the ensuing degradation of dolphin stocks in this area, are
well-documented", adding that "Mexico does not deny that dolphins may be killed or seriously injured
during purse-seine net fishing manoeuvres."509 The Panel further stated:
We also agree with the United Stat es that the existence of the DMLs
["dolphin mortality limits"] established by the AIDCP shows that

505Panel Report, para. 7.444. As we explain in the following section of our Report, a panel adjudicating
a claim under Article 2.2 of the TBT Agreement is required to objectively ascer tain a measure's objective. A
panel must also determine whether the objective of the measure is "legitimate".
506Panel Report, para. 7.550.
507Panel Report, para. 7.438.
508Panel Report, para. 7.493 (referring to Mexico 's second written submission to the Panel; and
United States' first written submission to the Panel, para. 52).
509Panel Report, para. 7.493 (referring to Mexico's oral statement at the first Panel meeting).

setting on dolphins, even in controlled conditions, may result in some
dolphin mortality.* In 2008, observed dolphin mortality in the ETP
amounted to 1,168 dolphins, whereas in 2009, 1,239 dolphins were
observed killed or seriously injured when set upon to catch tuna in
the ETP.** The parties to the AIDCP agreed to limit total incidental
dolphin mortality in the purse-seine tuna fishery in the ETP to no
more than five thousand dolphins annually.*** These limits have
remained the same in recent years.****
 510
* [original footnote 686] Although Mexico argues that the number of
dolphins being killed annually in the ETP (around 1000) does not have a
significant adverse effect on dolphins from a population recovery
perspective, it does not deny that se tting on dolphins even according to the
AIDCP may still result in observed dolphin mortality or serious injury,
Mexico's second written submission, para. 204.
** [original footnote 687] Exhibit US-24, p. 50; Exhibit US-66, p. 3.
*** [original footnote 688] Exhibit MEX-11, Article V.
**** [original footnote 689] Panel Exhibit US-50, p. 1.
246. The Panel further remarked that "there is a degr ee of uncertainty in relation to the extent to
which setting on dolphins may have an adverse im pact on dolphins beyond observed mortality." 511
Nonetheless, the Panel determined "that sufficient ev idence has been put forward by the United States
to raise a presumption that genuine concerns exist in this respect". 512 The Panel also found that the
United States had put forward sufficient evidence to raise a presumption "that the method of setting
on dolphins 'has the capacity' of resulting in observed and unobserved adverse effects on dolphins".513
247. With respect to dolphin mortality arising from tuna fishing outside the ETP , the Panel noted
that "information is lacking to evaluate the existe nce and extent of the threats faced by different
species of dolphins in different areas around the globe, especially outside the ETP." 514 The Panel
explained that its analysis of the existence of dolphin bycatch during tuna fishing operations outside
the ETP was therefore "based on the evidence contained in a limited amount of ad hoc studies".515
While the Panel noted that there are "no records of consistent or widespread fishing effort on

510Panel Report, para. 7.493.
511Panel Report, para. 7.504.
512Panel Report, para. 7.504.
513Panel Report, para. 7.737. See also Panel Report , para. 7.560 ("as we have accepted earlier, setting
on dolphins may result in observed and unobserved harmful effects on dolphins"). In response to questioning at
the oral hearing, Mexico indicated that it did not contest this finding by the Panel.
514Panel Report, para. 7.518 (referring to Panel Exhibit MEX-02, supra, footnote 118 ("suggesting
more research 'on behaviour of tuna and dolphins' in the ETP"); Panel Exhibit MEX-05, supra, footnote 115,
p. vii ("recommending research globally"); and M.A. Donahue and E.F. Edwards, "An annotated bibliography
of available literature regarding cetacean interactions w ith tuna purse-seine fisheries outside of the eastern
tropical Pacific Ocean", Southwest Fisheries Science Center, NOAA Administrative Report LJ-96-20 (1996)
(Panel Exhibit US-10), p. 38 ("stating that 'data collection by objective scientific agencies may be the only route
to a truly unbiased picture of dolphin mortality incidental to purse-seine operations' in the western Pacific
Ocean"). (Panel Report, footnote 726 to para. 7.518) In contrast, the Panel noted th at detailed information was
available regarding dolphin mortalities resulting from tuna-fishing activities in the ETP. (Panel Report,
para. 7.519)
515Panel Report, para. 7.519.

tuna-dolphin associations anywhere other than in the ETP", it found, as a matter of fact, that there
were "clear indications that the us e of certain tuna fishing techniques other than setting on dolphins
may also cause harm to dolphins".
516 This finding by the Panel is uncontested.517
248. Regarding the tuna-dolphin association outside the ETP, the Panel found that the limited
evidence before it suggested "that the associati on between schools of tunas and dolphins does not
occur outside the ETP as frequently as it does within the ETP." 518 The Panel further found that,
"although there are indications that intentional se tting on dolphins occurs outside the ETP", there are
"no records of consistent or widespread fishing effort on tuna-dol phin associations anywhere other
than in the ETP".519 The Panel noted, however, that "even assuming that the United States' contention
that certain environmental conditions in the ET P (such as the intensity of the tuna-dolphin
association) are unique" is correct, the eviden ce submitted to the Panel suggests that "the risks faced
by dolphin populations in the ETP are not."520 The Panel further found, and the participants do not
contest, that where "tuna is caught outside the ETP, it would be eligible for the US official label, even
if dolphins have in fact been caught or seriously injured during the trip, since there is, under the
US measures as currently applied, no requirement for a certificate to the effect that no dolphins have
been killed or seriously injured outside the ETP."
521 Again, these facts are uncontested.522
249. Regarding the use of fishing methods other than setting on dolphins , the Panel further noted
that:
… the United States has explained th at the techniques currently used
by US and foreign vessels to catch tuna for products sold on the US
market include "purse seine sets on dolphins, unassociated purse
seine sets (sets on floating objects such as FADs and free swimming
schools), longline, troll, pole and line, gillnet, harpoon and handline"
(emphasis added [by the Panel]). The United States has also stated
that "most tuna products sold in th e United States are eligible to be
labelled dolphin safe", and that for instance, "98.5% of total
US imports (by volume) of canned tuna products were eligible to be
labelled dolphin safe in 2009". This means the vast majority of tuna
products containing tuna caught in the western Pacific Ocean by
using, for instance, FADs, trolls or gillnets, sold in the US market are
eligible to be labelled dolphin safe. Based on this information, the
Panel considers that Mexico has sufficiently demonstrated that tuna
caught during a trip where dolphins were killed or seriously injured

516Panel Report, para. 7.520 (referring to Panel Exhibit US-10, supra, footnote 514, p. 38; and Panel
Exhibit MEX-02, supra, footnote 118, pp. 37 and 98). (original emphasis)
517Mexico's and United States' responses to questioning at the oral hearing.
518Panel Report, para. 7.520. (original emphasis)
519Panel Report, para. 7.520.
520Panel Report, para. 7.552. (original emphasis)
521Panel Report, para. 7.532.
522Mexico and the United States confirmed this in response to questioning at the oral hearing.

using a method of fishing other than setting on dolphins outside the
ETP may be contained in the tuna pr oducts sold in the US market
under the dolphin safe label. This is particularly true considering that
no determination of existence of regular and significant tuna-dolphin
association or regular and significant mortality has been made for any
fishery outside the ETP, which means that under the DPCIA
provisions that are currently applicable [to] all tuna products
containing tuna caught in a non-ETP fishery using a method other
than setting on dolphins are elig ible to be labelled dolphin safe
without certifying that no dolphin was killed or seriously injured in
the set.
523 (original emphasis; footnotes omitted)
250. At the oral hearing, the United States accepted that "under the DPCIA provisions that are
currently applicable all tuna products containing tuna caught in a non-ETP fishery using a method
other than setting on dolphins are eligible to be labelled dolphin-safe without certifying that no
dolphin was killed or seriously injured in the set". 524 The United States also confirmed that it did not
contest the Panel's finding, in paragraph 7.544 of the Panel Report, that:
… the US dolphin-safe labelling provisions, as currently applied,
address observed and unobserved mortality resulting from setting on
dolphins, in any fishery, as well as observed mortality from other
fishing methods within the ETP. However, they do not address
mortality (observed or unobserved) arising from fishing methods
other than setting on dolphins outside the ETP.525
251. In sum, the participants do not contest the following findings by the Panel. First, setting on
dolphins within the ETP may result in a substantia l amount of dolphin mortalities and serious injuries
and has the capacity of resulting in obser ved and unobserved effects on dolphins. 526 Further, the use
of certain fishing techniques other than setting on dolphins causes harm to dolphins. 527 With respect
to tuna fishing outside the ETP, the participants do no t contest that the vast majority of tuna caught in
the western Pacific Ocean is caught with FADs, trolls , or gillnets, and that US and foreign vessels use
these fishing techniques. 528 It is also uncontested that the tuna-dolphin association does not occur
outside the ETP as frequently as it does within the ETP, and that there are no records of consistent and
widespread fishing effort on tuna-dolphin associations anywhere other than in the ETP.529 Finally, the
participants do not contest that, as currently ap plied, the US measure does not address mortality
(observed or unobserved) arising from fishing me thods other than setting on dolphins outside the

523Panel Report, para. 7.534.
524Panel Report, para. 7.534. (original emphasis)
525Panel Report, para. 7.544.
526Panel Report, paras. 7.438 and 7.49 3 (referring to Mexico's second written submission to the Panel;
and United States' first written submission to the Panel, para. 52). Mexico confirmed that it did not contest this
fact in response to questioning at the oral hearing.
527Panel Report, para. 7.520.
528Panel Report, para. 7.534.
529Panel Report, para. 7.520.

ETP
530, and that tuna caught in this area would be eligible for the US official label, even if dolphins
have in fact been killed or seriously injured during the trip.531
252. In addition to the findings listed above, the Pa nel made several other findings which have
been appealed by the United States under Article 11 of the DSU. We address them below to the
extent they are relevant to our analysis of whethe r the US "dolphin-safe" labelling provisions reflect
discrimination.
(b) Findings by the Panel subject to the United States' Appeal under
Article 11 of the DSU
253. As noted, the United States challenges several aspects of the Panel's analysis under Article 2.2
as inconsistent with the Panel's duty, pursuant to Article 11 of the DSU, to "make an objective
assessment of the matter before it, including an obj ective assessment of the facts of the case." We
will examine these claims here to the extent that they are relevant to our determination of whether the
measure accords "less favourable treatment" to Me xican tuna products. In particular, the
United States challenges the Panel's findings with respect to the relative harm to dolphins from
different fishing methods as internally contradictory and inconsistent with the evidence before it. The
United States also takes issue with the Panel's appreciation and weighing of the evidence regarding
the adverse effects on dolphins from tuna fishing and the depletion status of dolphin stocks outside the
ETP, as well as the unobserved adverse effects from setting on dolphins and th e depletion of dolphin
stocks inside the ETP.
254. As the Appellate Body has pointed out on several occasions, Article 11 of the DSU requires a
panel to "consider all the evidence presented to it, assess its credibility, determine its weight, and
ensure that its factual findings have a proper basis in that evidence." 532 At the same time, panels "are
not required to accord to factual evidence of the parties the same meaning and weight as do the
parties".533 In this respect, "the Appellate Body will no t 'interfere lightly' with a panel's fact-finding
authority, and will not 'base a finding of inconsiste ncy under Article 11 simply on the conclusion that
[it] might have reached a different factual finding'." 534 Instead, for a claim under Article 11 to
succeed, the Appellate Body must be satisfied that the panel has exceeded its authority as the initial
trier of facts. As the initial trier of facts, a pa nel must provide "reasoned a nd adequate explanations

530Panel Report, para. 7.544. We note that the measure at issue does address driftnet fishing in the high
seas.
531Panel Report, para. 7.532.
532Appellate Body Report, Philippines – Distilled Spirits , para. 135 (quoting Appellate Body Report,
Brazil – Retreaded Tyres , para. 185, in turn referring to Appellate Body Report, EC – Hormones , paras. 132
and 133).
534Appellate Body Report, Philippines – Distilled Spirits , para. 136 (quoting Appellate Body Report,
US – Wheat Gluten, para. 151).

and coherent reasoning"535, and must base its finding on a sufficient evidentiary basis. 536 Moreover, a
participant claiming that a panel disregarded certa in evidence must explain why the evidence is so
material to its case that the panel's failure to addr ess such evidence has a bear ing on the objectivity of
the panel's factual assessment.537
255. With these parameters in mind, we turn to review the particular findings by the Panel that the
United States has challenged under Article 11 of the DSU.
256. The United States alleges, first, that the Panel acted inconsistently with Article 11 of the DSU
by making contradictory findings. The United States argues that "the Panel's conclusion that the risk
to dolphins from other fishing techniques is not lower than the risk from setting on dolphins"
538
contradicts the Panel's findings tha t: (i) "certain fishing techniques seem to pose greater risks to
dolphins than others"; and (ii) "setting on dolph ins may result in a substantial amount of dolphin
mortalities and serious injuries". 539 This contradiction itself, says the United States, constitutes a
violation of Article 11 of the DSU.
257. The United States does not provide a reference for the alleged Panel finding that "the risk to
dolphins from other fishing techniques is not lower than the risk from setting on dolphins". 540 From
the context of the submission, we understand this allegation to relate to paragraphs 7.562 and 7.617 of
the Panel Report, which the United States mentions in paragraph 93 of its a ppellant's submission.
Paragraph 7.562 of the Panel Report reads, in relevant part, as follows:
… in light of the evidence presente d in these proceedings, the Panel
is not persuaded that the threats arising from the use of fishing
methods other than setting on dolphins to catch tuna outside the ETP
are insignificant, as the United States suggests, be it in terms of
observed mortality or serious injury, or even, in at least some cases,
in terms of sustainability of the populations. Nor are we persuaded
that they are demonstrated to be lower than the similar threats faced
by dolphins in the ETP.
541
258. The Panel stated that it was not "persuaded" that risks arising from fishing methods other than
setting on dolphins to catch tuna outside the ETP "a re demonstrated to be lower than the similar
threats faced by dolphins in the ETP". 542 As we understand the Panel, the "similar threats" it is

535Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), footnote 618 to para. 293.
536Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 881 (referring to
Appellate Body Report, US – Continued Zeroing, para. 338).
537Appellate Body Report, EC – Fasteners (China), para. 442.
541Panel Report, para. 7.562.
542Panel Report, para. 7.562.

referring to in this excerpt are threats faced by dolphins in the ETP from the use of fishing methods
other than setting on dolphins. We see no contradicti on between this statement by the Panel and the
Panel's earlier findings that "certain fishing tec hniques seem to pose greater risks to dolphins than
others" and that "setting on dolphins may result in a substantial amount of dolphin mortalities and
serious injuries".
543
259. Paragraph 7.617 of the Panel Report in turn contains the following finding made by the Panel:
… we are not persuaded, based on the evidence presented to us, that
at least some of the dolphin populations affected by fishing
techniques other than setting on dolph ins are not facing risks at least
equivalent to those currently faced by dolphin populations in the ETP
under AIDCP monitoring.544
260. We do not see a contradiction between this finding and the Panel's earlier finding, in
paragraph 7.438 of the Panel Report, that "the fishing method known as setting on dolphins may result
in a substantial amount of dolphin mortalities and seri ous injuries". We note that the latter statement
is qualified by the statement "especially when u sed without applying certain fishing gear and
procedures designed to reduce dolphin bycatch", and it is made in the context of the Panel's discussion
of the risks of setting on dolphins " before the adoption of the controls established by the AIDCP
[Agreement on the International Dolphin Conservation Program]". 545 The Panel thus distinguished
between the unregulated practice of setting on dolphins and setting on dolphins under the conditions
of the AIDCP. Therefore, we see no contradicti on between, on the one hand, the Panel's finding that
the unregulated use of setting on dolphins to catch tuna poses greater risks to dolphins than other tuna
fishing methods and, on the other hand, the Panel's statement that it was not persuaded that "at least
some of the dolphin populations affected by fishing techniques other than setting on dolphins are not
facing risks at least equivalent to those curre ntly faced by dolphin po pulations in the ETP under
AIDCP monitoring."
546
261. The United States further asserts that the Pane l found that "harm to dolphins resulting from
setting on tuna [sic] is equivalent to that resulting from other fishing methods". 547 The United States
alleges that this finding is inconsistent with ev idence before the Panel suggesting that setting on
dolphins to catch tuna poses greater risks to dolph ins than other techniques. In particular, the
United States points to its arguments before the Pa nel that there is a regular and significant tuna-
dolphin association in the ETP but not in other ocea ns, and that dolphin popu lations in the ETP are

544Panel Report, para. 7.617.
545Panel Report, para. 7.438. (emphasis added)
546Panel Report, para. 7.617. (emphasis added)

depleted with abundance levels at less than 30 per cent of the levels they were at before the practice of
setting on dolphins began, and th at "outside the ETP, dolphin populations have not been depleted on
account of their exploitation to catch tuna and do not remain depleted on account of any such
exploitation".548 The United States argues that there was no evidence before the Panel suggesting that
the tuna-dolphin association outside the ETP is simila r to that within the ETP, and alleges that the
Panel failed to address evidence to the effect that th e levels of the tuna-dolphin association in the ETP
are unique, as well as evidence relating to the fishing methods used to catch tuna based on exploiting
that association, and "what that means in terms of risks to dolphins".549
262. We note that the United States does not provide a specific reference for the said finding by the
Panel. The structure of the submission suggests that the reference to "the Panel's finding" in
paragraphs 95-99 of the United Stat es' appellant's submission may be to the Panel's conclusions set
out in paragraph 93 of the United States' subm ission, namely, the Panel's conclusions in
paragraphs 7.562 and 7.617 of the Panel Report. W ith respect to the first finding, we do not see that
the Panel found that harm to dolphins resulting fro m setting on them is equivalent to harm resulting
from other fishing methods. Instead, as noted above, the Panel stated that it was not "persuaded" that
the risks arising from fishing methods other than setting on dolphins to catch tuna outside the ETP
"are demonstrated to be lower than the similar threats faced by dolphins in the ETP", which we
understand as referring to threats from fishing methods other than setting on dolphins in the ETP. 550
With respect to the second finding, we note that the Panel explicitly referred to the "evidence
presented to" it. 551 This evidence included "examples of ob served dolphin mortalities in the western
central Pacific …, which equate or exceed the number of dolphin observed mortalities in the ETP in
recent years (which amount to approxima tely 1000 to 1200 deaths per year)." 552 In the light of this
evidence, we do not see that the Panel exceeded its discretion when it stated that it was not
"persuaded" that "at least some of the dolphin popu lations affected by fishing techniques other than
setting on dolphins are not facing risks at least equivalent to those currently faced by dolphin
populations in the ETP under AIDCP monitoring".553
263. The United States argues that the Panel erred in finding, on the one hand, that the quantity and
the quality of the evidence of the risks faced by dolphin populations outside the ETP is less
comprehensive than that of the evidence about dol phin mortality resulting from tuna fishing within
the ETP, and in finding, on the ot her hand, based on the evidence be fore it, that "significant dolphin

548United States' appellant's submission, para. 96 (quoting United States' second written submission to
the Panel, para. 43).
550Panel Report, para. 7.562. (emphasis added)
551Panel Report, para. 7.617.
552Panel Report, para. 7.523.
553Panel Report, para. 7.617.

mortality also arises outside the ETP from the use of other techniques than setting on dolphins".
554
The United States alleges that the Panel leapt from what it acknowledges to be minimal evidence that
there may be some harm to dolphins outside th e ETP to concluding that "significant dolphin
mortality" occurs and that the Panel thus merely assumed that dolphin mortality stemming from tuna
fishing existed outside the ETP.555
264. In its analysis, the Panel acknowledged that, due in particular to the AIDCP On-Board
Observers Program and the AIDCP System for Trac king and Verifying Tuna, detailed information is
available concerning dolphin mortalities resulting from tuna fishing in the ETP, and that, by contrast,
evidence relating to dolphin bycatch outside th e ETP is contained in a "limited amount of ad-hoc
studies".556 Nonetheless, the Panel engaged with the av ailable evidence and found, based on a review
of numerous pieces of evidence listed in footnotes 733 to 743, that "there are clear indications that the
use of certain tuna fishing techniques other than setting on dolphins may also cause harm to
dolphins."557
265. The Panel also addressed the United States' argument that observer programmes outside the
ETP exist and that they have not reported signifi cant mortalities. The Panel reviewed evidence
submitted by the United States in this respect and c oncluded that it was "not persuaded that these
figures demonstrate, as the United States suggests, that there is no or only insignificant risk of dolphin
mortality or injury arising from tuna fishing opera tions outside the ETP or call into question the other
evidence referred to by Mexico and cited [in th e preceding paragraphs of the Panel Report]." 558 The
Panel stated that "[r]ather, the observations reflected in this report confirm the existence of interaction
outside the ETP between purse seine (and longline) tuna fisheries and marine mammals, including
dolphins, and the existence of some bycatch and mo rtality in this context in the WCPO [Western
Central Pacific Ocean]."559 Subsequently, the Panel concluded that:
… based on the evidence provided to us, we conclude that Mexico
has demonstrated that certain tuna fishing methods other than setting
on dolphins have the potential of adversely affecting dolphins, and
that the use of these other techni ques outside the ETP may produce
and has produced significant levels of dolphin bycatch, during the
period over which the US dolphin-safe provisions have been in
force.560

554United States' appellant's submission, para. 101 (referring to Panel Report, paras. 7.612 and 7.613).
555United States' appellant's submission, paras. 101 and 102.
557Panel Report, para. 7.520. (original emphasis)
558Panel Report, para. 7.529.
559Panel Report, para. 7.529.
560Panel Report, para. 7.531.

266. We recall, again, that the ev idence before the Panel included "examples of observed dolphin
mortalities in the western central Pacific, which equate or exceed the number of dolphin observed
mortalities in the ETP in recent years (which amount to approximately 1000 to 1200 deaths per
year)."561 We do not see that the Panel acted inconsistently with Article 11 of the DSU by interpreting
this as "strong evidence that regular and significant mortality and serious injury of dolphins also exists
outside the ETP".562
267. The United States further alleges that the evid ence cited by the Panel regarding harm to
dolphins caused by tuna fishing outside the ETP does not support the Panel's finding of significant
dolphin mortality outside the ETP. The United States argues that, in the Panel's analysis of the harm
from tuna fishing practices other than setting on do lphins outside the ETP, the Panel erroneously
relied on evidence which refers to fishing in genera l and which does not relate particularly to tuna
fishing.
563 The United States asserts that "[s]ources that refer to harms to dolphins from fishing
operations other than tuna fishing operations cannot be relied upon to support the Panel's
conclusion."564
268. Contrary to what the United States suggests, the Panel did not refer to sources that relate to
harm to dolphins from fishing operations "other than tuna fishing operations". Some of the evidence
taken into account by the Panel refe rs to tuna fishing along with fishi ng for other species, some refers
to fishing in general, and some refers specifically to fishing for tuna. In any event, as we see it, what
is decisive is whether the eviden ce relied on by the Panel addresses th e conditions of fishing for tuna,
and not whether, in addition to that, the evidence also addresses fishing for other species.565
269. Furthermore, the United States argues that many of the sources on which the Panel relies as
evincing harm to dolphins outside the ETP refer to driftnet fishing, a fishing technique that
disqualifies tuna products caught on the high seas from being labelled "dolphin-safe" under the
measure at issue. The United States argues that the possibility that dolphins may be harmed in
driftnet fishing does not support the conclusion that there is significant harm to dolphins outside the
ETP that is unaddressed under the measure at issue.
566
270. We note that while the measure at issue stipulat es that tuna caught using driftnets on the high
seas is not eligible for a "dolphin-safe" label, it gr ants access to the label to tuna products containing

561Panel Report, para. 7.523.
562Panel Report, para. 7.543.
563United States' appellant's submission, para. 103 (referring to Panel Report, paras. 7.520-7.523).
565We note in this respect that "albacore", to which the Panel refers on several occasions, is a
sub-species of tuna.

tuna caught with driftnets in exclusive economic zon es. Insofar as such tuna products are eligible for
a "dolphin-safe" label, the Panel's reliance on sources relating to driftnet fishing was not "mistaken".
271. Furthermore, the United States takes issue with th e value attached by the Panel to a report by
the Secretariat of the Pacific Community submitted to the Panel by Mexico as Panel Exhibit MEX-98.
The United States argues that the Panel erred in asc ribing little value to this report, based on the
consideration that the authors of the study considered that further analysis was required, given that the
evidence serving as the basis for the Panel's finding of significant harm to dolphins outside the ETP
from tuna-fishing operations similarly noted the need for further study.
567
272. This argument by the United States appears to be directed mainly at the weight that the Panel
ascribed to the evidence before it. The Appellate Body has consistent ly recognized that panels enjoy
a margin of discretion in their assessment of the facts. 568 This margin includes the discretion of a
panel to decide which evidence it chooses to utilize in making its findings 569, and to determine how
much weight to attach to the various items of evidence placed before it by the parties.570 A panel does
not err simply because it declines to accord to the ev idence the weight that one of the parties believes
should be accorded to it.571
273. The United States further asserts that the Panel acted inconsistently with Article 11 of the
DSU by failing to "fully consider" two st udies submitted by the United States "reporting the
unobserved impact on dolphins from being chased and encircled to catch tuna in the ETP". 572 The
United States also takes issue with the Panel's stat ement that other studies "question" the conclusions
suggested by those studies.573 The United States submits that in f act they did not, and could not have
done so, as the other studies referr ed to by the Panel largely pre-date the studies submitted by the
United States, and one of the studies cited by the Pa nel as "questioning" the conclusion that there are
unobserved harms from setting on dolphins was in fact among the studies that the Panel had
previously found did suggest that there was such harm.
574

568Appellate Body Reports, China – Raw Materials, para. 341; Appellate Body Report, EC – Asbestos,
para. 161; Appellate Body Report, EC – Hormones , para. 132; Appellate Body Report, EC – Sardines ,
para. 299; Appellate Body Report, Japan – Apples , para. 222; Appellate Body Report, Korea – Dairy ,
paras. 137 and 138; Appellate Body Report, US – Wheat Gluten, para. 151.
571Appellate Body Report, Australia – Salmon , para. 267; Appellate Body Report, Japan – Apples ,
572United States' appellant's submission, para. 108 (referring to Panel Exhibits US-21 and US-22,
supra, footnote 58).
574United States' appellant's submission, para. 109 (referring to Panel Exhibit US-21, supra,
footnote 58).

274. While an existing study may not directly or ex plicitly "question" a subsequent study, the
conclusions contained in an existing study may well contradict the conclusions contained in a
subsequent study. We understand the Panel's st atement in paragraph 7.500 that "other studies
question these conclusions" in this sense and therefore see no error in that statement. In any event, we
note that the Panel did rely on the two studies refe rred to by the United States in its discussion of
unobserved adverse effects from setting on dolphins 575, and ultimately found "that sufficient evidence
has been put forward by the United States to raise a presumption that genuine concerns exist in this
respect".576 Moreover, a panel does not err simply because it does not "fully consider" particular
exhibits in the record, in particular if these exhib its merely contain facts and arguments that the panel
has already discussed.
275. The United States also takes issu e with the Panel's statement that dolphin populations near
Ghana and Togo are "severely depleted", because ther e is "no indication in the source cited that the
dolphin stocks off the coast of Ghana and Togo are depleted because of tuna fishing activities."577
276. Contrary to what the United States suggests, th e Panel did not state that "dolphin stocks off
the coast of Ghana and Togo are depleted because of tuna fishing activities". 578 In any event, to the
extent that this statement was made by the Panel in the context of the Panel's assessment of adverse
effects of fishing activities, including fishing for tuna, on dolphins, it may suggest that tuna fishing
contributes to the depletion of dolphins in that re gion. Thus, we do not consider that the Panel's
statement would constitute an incorrect reflection of the content of the study.579

575Panel Report, footnote 690 to para. 7.495.
576Panel Report, para. 7.504.
[T]he study reports that the bycatch in this area "threatens the continued
existence of Atlantic humpback dolphins" and reports that populations of
this species of dolphin near the coast of Ghana and Togo are "severely
depleted".
579Panel Exhibit MEX-05 states, at the beginning of the relevant section with respect to dolphin
bycatch, that:
The largest catches, by far, are the re sult of deployment of large meshed
drift gillnets targeting tuna, sharks, billfish, manta rays, and dolphins.
(Panel Exhibit MEX-05, supra, footnote 115, p. 11)
The relevant excerpt in the same section of this study reads as follows:
In West Africa, bycatch threatens th e continued existence of Atlantic
humpback dolphins. While bycatch of humpback dolphins is well
documented in other West African countries, bycatch monitoring of coastal
fisheries in Ghana and Togo has failed to yield a single record because of
the severely depleted population. Research is needed to establish the range,
distribution, natural history, taxonomy, abundance, and fishery interactions
of Atlantic humpback dolphins. A high priority area for dedicated field
investigations is Ghana's Volta River region and western Togo.
(Panel Exhibit MEX-05, supra, footnote 115, p. 11 (footnote omitted))

277. The United States challenges the Panel's statem ent relating to serious depletion of the
population of Irrawaddy dolphins in parts of Thaila nd and the Philippines for the same reason. The
Panel noted that "the study reports that the Irrawa ddy dolphin populations are seriously depleted in
parts of Thailand and the Philippines."
580
278. We note that the United States does not explain th e allegation that the Panel "implies" that the
relevant dolphin stocks are depleted on account of tuna-fishing activities. The Panel may well have
regarded tuna fishing activities as one among several causes of dolphin depletion in the region. In any
event, however, in the light of th e evidence referenced by the Panel, we see no error in the Panel's
statement that "the study reports that the Irrawaddy dolphin populations are seriously depleted in parts
of Thailand and the Philippines." We therefore find no error in the Panel's assessment of the evidence
in this respect.
279. The United States also alleges that the Panel "n eglected to consider" evidence adduced by the
United States demonstrating that dolphin populations in the ETP are depleted, and that the most likely
reason for recovery rates below the expected rates was the continued tuna purse seine fishing in the
ETP, even under the AIDCP guidelines. 581 In particular, the United States refers to information
contained in Panel Exhibits US-4, US-20, US-21, US-27, and US-28.
280. We note that the Panel referenced, in paragr aph 7.438, the very Panel exhibits that the
United States alleges the Panel "neglected to cons ider". We therefore see no merit in the allegation
that the Panel acted inconsistently with the oblig ation to objectively assess the evidence before it. In
any event, we recall, also with respect to this allegation of error, that the Appellate Body has
consistently held that the Panel's margin of di scretion in its assessment of the facts includes the
discretion to decide which evidence it chooses to utilize in making its findings 582, and to determine
how much weight to attach to the various ite ms of evidence placed before it by the parties. 583 We do
not see that the Panel exceeded this margin here.

580Panel Report, para. 7.554. While the source given by the Panel (Panel Exhibit MEX-05, p. 27) refers
to fisheries in general and not to tuna fishing, it is clear from the context in which it appears that tuna-fishing
activities are a major concern in the region. On the previous page, the report states as follows:
Roughly 1,700 bottlenose dolphins and 1,000 spinner dolphins are
incidentally caught in gillnet, driftnet, and purse-seine fisheries in the
western central Pacific. Also at risk are Irrawaddy dolphins. This region's
fisheries are diverse and poorly documented. Nevertheless, coastal gillnets,
especially driftnets for tunas and mackerels, are widely used.
(Panel Exhibit MEX-05, supra, footnote 115, p. 26)
581United States' appellant's submission, para. 113 (referring to Panel Exhibits US-4, US-20, US-21,
US-27, and US-28, supra, footnotes 60 and 62).

281. For all these reasons, we find that the Panel acted consistently with it duties under Article 11
of the DSU in its analysis of the arguments and evidence before it. The Panel's factual findings
therefore stand and can assist us in determining whether the US "dolphin-safe" labelling provisions
are even-handed in the manner in which they a ddress the risks to dolphins arising from different
fishing methods in different areas of the ocean.
(c) Whether the Measure Is Calibrated
282. The United States argued before the Panel that to the extent that there are any differences in
criteria that must be satisfied in order to substantia te "dolphin-safe" claims, they are "calibrated" to
the risk that dolphins may be killed or seriously injured when tuna is caught. 584 In this regard, the
United States emphasized the uniqueness of the ETP in terms of the phenomenon of tuna-dolphin
association, which is used widely and on a commerc ial basis to catch tuna, and causes observed and
unobserved mortalities that, in the United States' view, are not comparable to dolphin mortalities
outside the ETP.
585 The United States further alleged that there is a clear relationship between the
objectives of the measure and the conditions under which tuna products may be labelled
"dolphin-safe".586 This clear relationship, the United St ates argued, does not support the conclusion
that the "dolphin-safe" labelling provisions are inconsistent with Article 2.1 of the TBT Agreement.587
283. As an initial matter, we note that, in Japan – Apples, the Appellate Body pointed out that "[i]t
is important to distinguish, on the one hand, the principle that the complainant must establish a
prima facie case of inconsistency with a provision of a covered agreement from, on the other hand,
the principle that the party that asserts a fact is responsible for providing proof thereof." 588 Although
the burden of proof to show that the US "dolphi n-safe" labelling provisions are inconsistent with
Article 2.1 of the TBT Agreement is on Mexico as the complainant, it was for the United States to
support its assertion that the US "dolphin-safe" labe lling provisions are "calibrated" to the risks to
dolphins arising from different fishing methods in different areas of the ocean.589
284. In the light of the findings of fact made by the Panel, we concluded earlier that the
detrimental impact of the measure on Mexican tuna pr oducts is caused by the fact that most Mexican
tuna products contain tuna caught by setting on dolphi ns in the ETP and are therefore not eligible for
a "dolphin-safe" label, whereas most tuna products from the United States and other countries that are

584Panel Report, paras. 7.258, 7.546, and 7.559.
585Panel Report, para. 7.559.
586Panel Report, para. 4.158.
587Panel Report, para. 7.258 (referring to United States' response to Panel Question 150).
588Appellate Body Report, Japan – Apples, para. 157 (referring to Appellate Body Report, US – Wool
Shirts and Blouses, p.14, DSR 1997:1, 323 at 335; and Appellate Body Report, EC – Hormones, para. 98).
589Panel Report, para. 7.546 (referring to United States' second written submission to the Panel,
paras. 39-47).

sold in the US market contain tuna caught by other fishing methods outside the ETP and are therefore
eligible for a "dolphin-safe" label. The aspect of the measure that causes the detrimental impact on
Mexican tuna products is thus the difference in la belling conditions for tuna products containing tuna
caught by setting on dolphins in the ETP, on the one hand, and for tuna products containing tuna
caught by other fishing methods outside the ETP, on th e other hand. The question before us is thus
whether the United States has demonstrated that this difference in labelling conditions is a legitimate
regulatory distinction, and hence whether the detr imental impact of the measure stems exclusively
from such a distinction rather than reflecting discrimination.
285. The Panel stated that it was "not persuaded" that "the United States has demonstrated that the
requirements of the US dolphin-safe labelling provisions are 'calibrated' to the likelihood of injury".
590
The Panel also stated that it was "not persuaded th at the requirements applicable in different fisheries
under the US dolphin safe measures are 'calibrated', as the United States suggests, to the likelihood of
dolphins being killed or seriously injured." 591 We note that the Panel made these statements in the
context of its analysis under Article 2.2 of the TBT Agreement. In particular, the Panel was examining
the extent to which the distinctions contained in the US "dolphin-safe" labelling provisions:
… allow consumers to accurately distinguish between tuna that was
caught in a manner that adversely affects dolphins and other tuna, by
ensuring that the label is available exclusively to products containing
tuna that was not caught "in a manner that adversely affects
dolphins".
592
286. The question examined by the Panel was thus different from the question of whether the
detrimental impact of the US "dolphin-safe" la belling provisions on Mexican tuna products stems
exclusively from a legitimate regulatory distincti on. The Panel's findings with respect to the
calibration of the measure at issue for the purposes of its analysis under Article 2.2 are thus not
necessarily dispositive of the question whether the measure is calibrated for the purposes of
Article 2.1. In particular, it would appear that in answering the question of whether the measure gives
accurate information to consumers, all distinctions drawn by the measure are potentially relevant. By
contrast, in an analysis under Article 2.1, we only need to examine the distinction that accounts for the
detrimental impact on Mexican tuna products as comp ared to US tuna products and tuna products
originating in other countries. Bearing the differe nt scope of these enquiries in mind, we need to
examine carefully to what extent the Panel's fi ndings under Article 2.2 bear on the question of
whether the difference in labelling conditions for tuna products containing tuna caught by setting on

590Panel Report, para. 7.559.
591Panel Report, para. 7.561.
592Panel Report, para. 7.490. The Panel found that the distinctions were drawn in a way that created a
"genuine risk that consumers may be misled about whether that tuna was caught by using a technique that does
not adversely affect dolphins." (Panel Report, para. 7.562)

dolphins in the ETP, on the one hand, and for tuna products containing tuna caught by other fishing
methods outside the ETP, on the other hand, are calib rated to the likelihood that dolphins would be
adversely affected in the course of tuna fishing operations in the respective conditions.
287. The United States has presented extensive evid ence and arguments, and the Panel has made
uncontested findings, to the effect that the fishi ng method of setting on dolphins causes observed and
unobserved adverse effects on dolphins. The Panel fu rther found that these ad verse effects are fully
addressed in the measure at issue, since the measure denies access to the label to products containing
tuna caught by setting on dolphins. 593 The measure at issue thus addresses the adverse effects on
dolphins resulting from the use of the fishing method that Mexico's fleet predominantly employs by
disqualifying all tuna products c ontaining tuna harvested with that method from access to the
"dolphin-safe" label.
288. The Panel also found, and the United States did not contest, that there are "clear indications
that the use of certain tuna fishing techniques other than setting on dolphins may also cause harm to
dolphins".
594 The United States argued, however, that these adverse effects are "not comparable" to
and are "fundamentally different" from the adverse effects resulting from setting on dolphins, and that
the situation in the ETP is unique. 595 The Panel agreed with the United States that "certain fishing
techniques seem to pose greater risks to dolphins than others." 596 However, it also stated that "even
assuming that … certain environmental conditions in the ETP (such as the intensity of tuna-dolphin
association) are unique, the evidence subm itted to the Panel suggests that the risks faced by dolphin
populations in the ETP are not."597 It further stated that it was "not persuaded" that "at least some of
the dolphin populations affected by fishing techni ques other than setting on dolphins are not facing
risks at least equivalent to those currently faced by dolphin populations in the ETP under AIDCP
monitoring."598 The United States has challenged these findings under Article 11 of the DSU.
However, as explained above, we found no error in th e Panel's analysis that would amount to an error
of law under Article 11.599
289. It appears, then, that the Panel accepted the Un ited States' argument that the fishing technique
of setting on dolphins is particularly harmful to dolph ins. However, the Panel did not agree with the
United States, based on the evidence that Mexico had placed before it, that th e risks to dolphins from

593Panel Report, para. 7.505.
594Panel Report, para. 7.520 (referring to Panel Exhibit MEX-02, supra, footnote 118, pp. 37 and 98).
(original emphasis)
595Panel Report, paras. 7.258, 7.512, and 7.559.
596Panel Report, para. 7.438.
597Panel Report, para. 7.552. (original emphasis)
598Panel Report, para. 7.617.
599These findings by the Panel therefore stand.

other fishing techniques are insignificant
600 and do not under some circumstances rise to the same
level as the risks from setting on dolphins. 601 These factual findings are the basis for the Panel's
concerns about the way in which the measure at issue addresses the potential adverse effects on
dolphins from the use of fishing techniques other th an setting on dolphins outside the ETP. As the
Panel noted, where "tuna is caught outside the ETP, it w ould be eligible for the US official label, even
if dolphins have in fact been caught or seriously injured during the trip, since there is, under the
US measures as currently applied, no requirement for a certificate to the effect that no dolphins have
been killed or seriously injured outside the ETP".602
290. The Panel emphasized that:
… under the DPCIA provisions that are currently applicable all tuna
products containing tuna caught in a non-ETP fishery using a method
other than setting on dolphins are e ligible to be labelled dolphin-safe
without certifying that no dolphin was killed or seriously injured in
the set.
603
291. The Panel concluded that:
… the US dolphin-safe provisions do not address observed mortality,
and any resulting adverse effects on dolphin populations, for tuna not
caught by setting on dolphins or high seas driftnet fishing outside the
ETP.
604
292. From the Panel's findings, it thus appears that the measure at issue does not address adverse
effects on dolphins resulting from the use of fishing methods predominantly employed by fishing
fleets supplying the United States' and other countries' tuna producers.
605 The Panel noted that the
only requirement currently applicable to purse seine vessels fishing outside the ETP is to provide a
certification by the captain that no purse seine net w as intentionally deployed on or used to encircle
dolphins during the fishing trip. This requirement, however, does not address risks from other fishing
methods, such as FADs. As the Panel stated, risk s to dolphins resulting from fishing methods other
than setting on dolphins "could only be monitored by imposing a different substantive requirement,
i.e. that no dolphins were killed or seriously injured in the sets in which the tuna was caught."606

600Panel Report, paras. 7.529, 7.531, and 7.562.
601Panel Report, para. 7.562.
602Panel Report, para. 7.532.
603Panel Report, para. 7.534. (original emphasis) We note that the measure at issue does address
driftnet fishing in the high seas.
604Panel Report, para. 7.621.
606Panel Report, para. 7.561.

293. Before the Panel and on appeal, the United St ates has argued that the US "dolphin-safe"
labelling provisions reflect the fact that the lowe r likelihood that a dolphin may be killed or seriously
injured in a fishery outside the ETP must be ba lanced against the additional burden imposed by
conditioning the use of a "dolphin-safe" label on a certification based on an independent observer's
statement.607 The United States further argues that the imposition of a condition that an observer
certify that no dolphins were killed or seriously in jured on a particular fishing trip outside the ETP
"would have significant monetary and infrastructure implications for most nations whose vessels fish
for tuna outside the ETP and export to the United States". 608 We understand the United States to
suggest that, at least in part due to such cost s, it does not impose a certification requirement with
respect to fisheries outside the ETP.
294. The Panel found these arguments unpersuasive. It noted that this argument was inconsistent
with the United States' own explanation that the me asure at issue already imposes a requirement that
no dolphins be killed or seriously injured if an alternative label is used.609 The Panel stated:
We fail to see, however, how the cost of demonstrating compliance
with the same requirement (i.e. that no dolphin was killed or
seriously injured) would justify that no such requirement be imposed
with respect to the use of an official label, while it would be imposed
for the same tuna caught in the same conditions in the same fisheries,
in the case of use of an alternative la bel. It is also not clear to us
what the imposition of this additi onal requirement means in practice
in respect of the alternative label, if it is assumed that it cannot be
verified and that this is a reason not to impose it for the use of the
official label.
610
295. The Panel further noted that the provisions of the DPCIA themselves envisage the possibility
that a fishery outside the ETP would be identified as one having a "regular and significant mortality,
or serious injury of dolphins", which would then lead to the application in such fishery of a
requirement to certify that no dolphin has been kille d or seriously injured on the trip on which the
tuna was caught.611
296. We see no error in the Panel's assessment. In addition, we note that nowhere in its reasoning
did the Panel state that imposing a requirement that an independent observer certify that no dolphins
were killed or seriously injured in the course of th e fishing operations in which the tuna was caught
would be the only way for the United States to calibrate its "dolphin-safe" labelling provisions to the

609Panel Report, para. 7.541.
610Panel Report, para. 7.541.
611Panel Report, para. 7.543.

risks that the Panel found were posed by fishing techniques other than setting on dolphins.
612 We
note, in this regard, that the measure at issue itsel f contemplates the possibility that only the captain
provide such a certification under certain circumstances.613
297. In the light of the above, we conclude that the United States has not demonstrated that the
difference in labelling conditions for tuna products containing tuna caught by setting on dolphins in
the ETP, on the one hand, and for tuna products c ontaining tuna caught by other fishing methods
outside the ETP, on the other hand, is "calibrated" to the risks to dolphins arising from different
fishing methods in different areas of the ocean. It follows from this that the United States has not
demonstrated that the detrimental impact of the US measure on Mexican tuna products stems
exclusively from a legitimate regulatory distinction. We note, in particular, that the US measure fully
addresses the adverse effects on dolphins resulti ng from setting on dolphins in the ETP, whereas it
does "not address mortality (observed or unobserved) arising from fishing methods other than setting
on dolphins outside the ETP". 614 In these circumstances, we are not persuaded that the United States
has demonstrated that the measure is even-handed in the relevant respects, even accepting that the
fishing technique of setting on dolphins is particularly harmful to dolphins.
3. Conclusion under Article 2.1 of the TBT Agreement
298. In the light of uncontested facts and factual fi ndings made by the Panel, we consider that
Mexico has established a prima facie case that the US "dolphin-safe" labelling provisions modify the
conditions of competition in the US market to th e detriment of Mexican tuna products and are not
even-handed in the way in which they address the risks to dolphins arising from different fishing
techniques in different areas of the ocean. We cons ider further that the United States has not met its
burden of rebutting this prima facie case. Since we are not persuaded that the Panel acted
inconsistently with Article 11 of the DSU in re viewing the evidence and arguments before it, we
accept the Panel's conclusions that the use of cert ain tuna fishing methods other than setting on

612We note, however, that such a requirement may be appropriate in circumst ances in which dolphins
face higher risks of mortality or serious injury.
613See DPCIA, subsection 1385(d)(1)(D):
(D) by a vessel in a fishery other than one described in
subparagraph (A), (B), or (C) that is identified by the Secretary as having a
regular and significant mortality or serious injury of dolphins, unless such
product is accompanied by a written st atement executed by the captain of
the vessel and an observer participating in a national or international
program acceptable to the Secretary that no dolphins were killed or
seriously injured in the sets or other gear deployments in which the tuna
were caught, provided that the Secretary determines that such an observer
statement is necessary. (emphasis added)
614Panel Report, para. 7.544. We note that the measure at issue does address driftnet fishing in the high
seas.

dolphins "outside the ETP may produce and has produced significant levels of dolphin bycatch" 615
and that "the US dolphin-safe provisions do not ad dress observed mortality, and any resulting adverse
effects on dolphin populations, for tuna not caught by setting on dolphins or high seas driftnet fishing
outside the ETP." 616 Thus, in our view, the United States has not justified as non-discriminatory
under Article 2.1 the different requirements that it a pplies to tuna caught by setting on dolphins inside
the ETP and tuna caught by other fishing methods outside the ETP for access to the US "dolphin-safe"
label. The United States has thus not demonstrated that the detrimental impact of the US measure on
Mexican tuna products stems exclusively from a legitimate regulatory distinction.
299. For these reasons, we reverse the Panel's finding, in paragra phs 7.374 and 8.1(a) of the Panel
Report, that the US "dolphin-safe" labelling provisions are not inconsistent with Article 2.1 of the
TBT Agreement . We find, instead, that the US "dolphin-safe" labelling provisions provide "less
favourable treatment" to Mexican tuna products th an that accorded to tuna products of the
United States and tuna products originating in ot her countries and are therefore inconsistent with
Article 2.1 of the TBT Agreement.
E. Mexico's Claims under Article 11 of the DSU
300. We note that Mexico also advances an appeal under Article 11 of the DSU in relation to the
Panel's assessment of Mexico's claims under Article 2.1 of the TBT Agreement. In particular, Mexico
alleges that Panel acted inconsistently with Article 11 of the DSU by failing to consider evidence put
forward by Mexico that it was impossible for the Mexican tuna industry to change its fishing practices
to adapt to the US "dolphin-safe" labelling provisions. 617 Mexico further contends that the Panel
acted inconsistently with Article 11 of the DSU in finding that it was not clear that the AIDCP label
had value to retailers and that retailers had similar perceptions to canneries.618 We have already found
that the Panel erred in finding that Mexico failed to establish that the measure at issue is inconsistent
with the United States' obligations under Article 2.1 of the TBT Agreement. Therefore, in order to
resolve this dispute, we need not determine whether, in assessing Mexico's claims under that
provision, the Panel also failed to satisfy its obligations under Article 11 of the DSU.

615Panel Report, para. 7.531.
616Panel Report, para. 7.621.
617Mexico's other appellant's submission, para. 149.
618Mexico's other appellant's submission, paras. 163 and 164 (referring to Panel Report, paras. 7.568,
2.1(c), 4.24, 7.13, and 7.23; and Declaration of John F. Turner, filed as exhibit to Federal Defendants'
Opposition to Plaintiffs' Motion for Preliminary Injunction, in Earth Island Institute v. Evans , Case No. C-99-
3892-TEH (Panel Exhibit MEX-34), MEX-58 (BCI), and MEX-100 (BCI)).

VII. Article 2.2 of the TBT Agreement
301. We turn next to the United States' appeal of the Panel's finding that the measure at issue is
more trade restrictive than necess ary to fulfil the legitimate objectiv es pursued by the United States,
and that, therefore, the measure is in consistent with Article 2.2 of the TBT Agreement . The
United States alleges that the Panel erred in its application of Article 2.2 of the TBT Agreement and
failed to make an objective assessment of the matter before it as required pursuant to Article 11 of the
DSU. Mexico raises a conditional other appeal with respect to the Panel's finding under Article 2.2 of
the TBT Agreement.
A. The Panel's Findings
302. The Panel concluded that the measure at issu e is inconsistent with Article 2.2 of the
TBT Agreement, because it is more trade restrictive than necessary to fulfil the legitimate objectives
pursued by the United States, taking account of the risks non-fulfilment would create. This
conclusion is based on a number of intermediate findings by the Panel. First, the Panel assessed the
United States' objectives based on the description of those objectives by both parties, as well as on the
basis of the design, structure, and characteristics of the measure at issue, and found the objectives to
be the following:
(a) "ensuring that consumers are not misled or deceived about whether tuna products
contain tuna that was caught in a manner that adversely affects dolphins"
619 (the
"consumer information objective"); and
(b) "contributing to the protection of dolphins, by ensuring that the US market is not used
to encourage fishing fleets to catch t una in a manner that adversely affects
dolphins"620 (the "dolphin protection objective").
303. The Panel then ascertained whether these objectiv es are "legitimate" within the meaning of
Article 2.2 of the TBT Agreement. The Panel noted that the elaboration of legitimate objectives is the
prerogative of the Member establishing a measure. The Panel also recalled the Appellate Body's
finding in US – Gambling that a panel is not bound by a Member's characterization of the objectives
of its own measures, but that a panel must make such characterization in an independent and objective
fashion, based on the ev idence in the record. 621 The Panel also recalled the Appellate Body's finding
in EC – Sardines that there must be an examination and a determination on the legitimacy of the

619Panel Report, paras. 7.401 and 7.413.
620Panel Report, paras. 7.401 and 7.425.

objectives of the measures.622 The Panel considered the list of le gitimate objectives in Article 2.2 and
found that the consumer information objective falls within the broader goal of preventing deceptive
practices, and that the dolphin protection objectiv e may be understood as intended to protect animal
life or health or the environment. 623 Accordingly, the Panel found "that the objectives of the
US dolphin-safe provisions, as described by the United States and ascertained by the Panel, are
legitimate" within the meaning of Article 2.2 of the TBT Agreement.624
304. The Panel then assessed whether the measure at is sue is more trade restrictive than necessary
to achieve the United States' objectives. The Panel stated that, in order to do so, it would assess "the
manner in which and the extent to which the meas ures at issue fulfil their objectives, taking into
account [the] Member's chosen level of protectio n, and compare this with a potential less trade
restrictive alternative measure, in order to de termine whether such alternative measure would
similarly fulfil the objectives pursu ed by the technical regulation at the Member's chosen level of
protection."625 The Panel further stated that, "[t]o the exte nt that a measure is capable of contributing
to its objective, it would be more trade-restrictive th an necessary if an alternative measure that is less
trade-restrictive is reasonably available, that w ould achieve the challenged measure's objective at the
same level."626
305. Turning to the measure at issue, the Panel assessed whether the US " dolphin-safe" labelling
provisions fulfil the consumer information objectiv e and whether, as Mexico claimed, this objective
could also be fulfilled by allowing the AIDCP label to coexist with the US "dolphin-safe" label in the
US market. The Panel found that the measure at issue could only partially fulfil the consumer
information objective, because, inter alia , under the US "dolphin-safe" label, consumers might be
misled into thinking that a tuna product did not in volve injury or killing of dolphins, even though this
may in fact have been the case. 627 The Panel considered that allowing compliance with the
"dolphin-safe" labelling requirements of the AIDCP in conjunction with the existing
US "dolphin-safe" label would be a less trade restri ctive alternative that would achieve a level of
protection equivalent to that of the measure at i ssue. Accordingly, the Panel concluded that the
measure at issue is more trade restrictive th an necessary to fulfil the consumer information
objective.628

623Panel Report, para. 7.437.
624Panel Report, para. 7.444.
625Panel Report, para. 7.465.
626Panel Report, para. 7.465.
627Panel Report, paras. 7.563 and 7.564.
628Panel Report, paras. 7.577 and 7.578.

306. The Panel subsequently considered whether the measure at issue fulfils the dolphin protection
objective and whether this objective could also be fulfilled by allowing the AIDCP label to coexist
with the US "dolphin-safe" label in the US market . The Panel concluded that the measure at issue
could "at best, only partially fulfil [its] stated obj ective of protecting dolphins". The Panel reasoned
that, although the measure was capable of protectin g dolphins within the ETP, in other fisheries the
measure was "capable of achieving [its] objective only in relation to the practices of setting on
dolphins and using high seas driftnets", and "in relation to all other fishing techniques used outside the
ETP" the measure is "not able to contribute to the protection of dolphins".
629
307. The Panel noted that significant dolphin morta lity arises outside the ETP from the use of
fishing techniques other than setting on dolphins. 630 The Panel considered that, "in some cases, the
risks arising from setting on dolphins under controlled circumstances may be lower than the risks
arising from other fishing techniques applied wit hout controlling for dolphin mortality or other
adverse impacts."631 The Panel considered that "the alternative suggested by Mexico does not seem to
create greater risks to dolphins in the ETP th an those accepted by the United States under the
challenged measures in relation to other fishing techniques used outside the ETP." 632 Thus, the Panel
found that "Mexico's alternative would achieve a le vel of protection equal to that achieved by the
US dolphin-safe provisions outside the ETP". 633 Recalling its earlier conclusion that Mexico's
alternative "is less trade-restrictive than the US dol phin-safe provisions", the Panel found that Mexico
had identified a reasonably available less trade-restri ctive alternative that would achieve the dolphin
protection objective at the same level as the measure at issue.634
308. Consequently, in relation to both the c onsumer information objective and the dolphin
protection objective, the Panel found the measure at issue to be more trade restrictive than necessary
to fulfil its legitimate objectives and thus inconsistent with Article 2.2 of the TBT Agreement.635
B. The United States' Appeal
309. On appeal, the United States requests the Appe llate Body to revers e this finding. The
United States claims that the Panel erred in its application of Article 2.2 of the TBT Agreement when
it found that the US "dolphin-safe" labelling provisions are more trade restri ctive than necessary to
fulfil their legitimate objectives. The United States also alleges that, in assessing the evidence relating

629Panel Report, para. 7.599.
630Panel Report, para. 7.613.
631Panel Report, para. 7.615.
632Panel Report, para. 7.618.
633Panel Report, para. 7.618.
634Panel Report, para. 7.619.
635Panel Report, para. 7.620.

to the extent to which the United States' measure fulfils the United States' objectives, the Panel failed
to make an objective assessment of the matter befo re it as required under Article 11 of the DSU. In
addition, the United States raises a claim under Article 11 of the DS U with respect to the Panel's
finding that the alternative measure proposed by Mexico would be a less trade-restrictive alternative.
310. In response, Mexico argues that the Appellate Body should uphold the Panel's finding that the
US "dolphin-safe" labelling provisions are more trade restrictive than necessary to fulfil their
legitimate objectives and are therefore inconsistent with Article 2.2 of the TBT Agreement. According
to Mexico, the Panel's finding is correct because th e United States' objectives can be fulfilled with a
less trade-restrictive alternative measure, namely, allowing the AIDCP label and the
US "dolphin-safe" label to coexist in the US market.
1. Article 2.2 of the TBT Agreement
311. We begin by considering the text of Article 2.2 of the TBT Agreement, which provides:
Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating
unnecessary obstacles to international trade. For this purpose,
technical regulations shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking account of the risks
non-fulfilment would create. Such legitimate objectives are,
inter alia: national security requirements; the prevention of
deceptive practices; protection of human health or safety, animal or
plant life or health, or the environment. In assessing such risks,
relevant elements of consideration are, inter alia: available scientific
and technical information, relate d processing technology or intended
end-uses of products.
312. The first sentence of Article 2.2 requires WTO Members to ensure that their technical
regulations are not prepared, adopted, or applied w ith a view to, or with the effect of, creating
unnecessary obstacles to international trade. The sec ond sentence explains that "[f]or this purpose,
technical regulations shall not be more trade restrict ive than necessary to fulfil a legitimate objective,
taking account of the risks non-fulfilment would creat e". We will address the different elements set
out in the text of Article 2.2 in turn below, in particular the meaning of the terms "legitimate
objective" and "fulfilment", as well as of the phrases "not … more trade-restrictive than necessary"
and "taking account of the risks non-fulfilment would create".
313. Considering, first, the meaning of the term "legitimate objective" in the sense of Article 2.2 of
the TBT Agreement, we note that the word "objective" describes a "thing aimed at or sought; a target,

a goal, an aim".
636 The word "legitimate", in turn, is de fined as "lawful; justifiable; proper". 637
Taken together, this suggests that a "legitimate objective" is an aim or target that is lawful, justifiable,
or proper. Furthermore, the use of the words " inter alia" in Article 2.2 suggests that the provision
does not set out a closed list of legitimate objectives, but rather lists several examples of legitimate
objectives. We consider that those objectives e xpressly listed provide a reference point for which
other objectives may be considered to be legitimate in the sense of Article 2.2. In addition, we note
that the sixth and seventh recitals of the preamble of the TBT Agreement specifically recognize several
objectives, which to a large extent overlap with the objectives listed in Article 2.2. Furthermore, we
consider that objectives recognized in the provisi ons of other covered agreements may provide
guidance for, or may inform, the analysis of what might be considered to be a legitimate objective
under Article 2.2 of the TBT Agreement.
314. Accordingly, in adjudicating a claim under Article 2.2 of the TBT Agreement, a panel must
assess what a Member seeks to achieve by means of a technical regulation. In doing so, it may take
into account the texts of statutes, legislative hist ory, and other evidence regarding the structure and
operation of the measure. A panel is not bound by a Member's characterizati on of the objectives it
pursues through the measure, but must independently and objectively assess them.
638 Subsequently,
the analysis must turn to the question of whether a particular objective is legitimate, pursuant to the
parameters set out above.
315. Next, we consider the meaning of the word "f ulfil" in the context of the phrase "fulfil a
legitimate objective" in Article 2.2 of the TBT Agreement . We note, first, that the word "fulfil" is
defined as "provide fully with what is wished for". 639 Read in isolation, the word "fulfil" appears to
describe complete achievement of something. But, in Article 2.2, it is used in the phrase "to fulfil a
legitimate objective" and, as described above, the word "objective" means "a target, goal, or aim". As
we see it, it is inherent in the notion of an "objec tive" that such a "goal, or aim" may be something
that is pursued and achieved to a greater or lesser degree. Accordingly, we consider that the question
of whether a technical regulation "fulfils" an objec tive is concerned with the degree of contribution
that the technical regulation makes toward the achievement of the legitimate objective.
316. We see support for this reading of the term "fulfil a legitimate objective" in the sixth recital of
the preamble of the TBT Agreement , which provides relevant context for the interpretation of

636Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 2, p. 1970.
637Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1577.
638See Appellate Body Report, US – Gambling, para. 304.
639Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1053.

Article 2.2. It recognizes that a Member shall not be prevented from taking measures necessary to
achieve its legitimate objectives "at the levels it considers appropriate", subject to the requirement that
such measures are not applied in a manner that woul d constitute a means of arbitrary or unjustifiable
discrimination between countries where the same c onditions prevail or a disguised restriction on
international trade, and are ot herwise in accordance with the TBT Agreement . As we see it, a
WTO Member, by preparing, adopting, and applyi ng a measure in order to pursue a legitimate
objective, articulates either implicitly or explicitly the level at which it seeks to pursue that particular
legitimate objective.
317. A panel adjudicating a claim under Article 2.2 of the TBT Agreement must seek to ascertain to
what degree, or if at all 640, the challenged technical regulati on, as written and applied, actually
contributes to the legitimate objective pursued by the Member. The degree of achievement of a
particular objective may be discerned from the desi gn, structure, and operation of the technical
regulation, as well as from evidence relating to the a pplication of the measure. As in other situations,
such as, for instance, when determining the cont ribution of a measure to the achievement of a
particular objective in the context of Article XX of the GATT 1994, a panel must assess the
contribution to the legitimate objective actually achieved by the measure at issue.641
318. We turn next to the terms "unnecessary obstacles to international trade" in the first sentence
and "not … more trade-restrictive than necessar y" in the second sentence of Article 2.2 of the
TBT Agreement. Both the first and second sentence of Article 2.2 refer to the notion of "necessity".
These sentences are linked by the terms "[f]or this purpose", which suggests that the second sentence
qualifies the terms of the first sentence and elaborates on the scope and meaning of the obligation
contained in that sentence. The Appellate Body h as previously noted that the word "necessary" refers
to a range of degrees of necessity, dependi ng on the connection in which it is used.
642 In the context
of Article 2.2, the assessment of "necessity" involves a relational analysis of the trade-restrictiveness
of the technical regulation, the degree of contributi on that it makes to the achievement of a legitimate
objective, and the risks non-fulfilment would create. We consider, therefore, that all these factors

640This may involve an assessment of whether the measure at issue is capable of achieving the
legitimate objective.
641Appellate Body Report, China – Publications and Audiovisual Products, para. 252.
642The Appellate Body further noted that: "[a]t one end of this continuum lies 'necessary' understood as
'indispensable'; at the other end, is 'necessary' taken to mean as 'making a contribution to.'" (Appellate Body
Report, Korea – Various Measures on Beef, para. 161)

provide the basis for the determination of what is to be considered "necessary" in the sense of
Article 2.2 in a particular case.
643
319. What has to be assessed for "necessity" is the trad e-restrictiveness of the measure at issue.
We recall that the Appellate Body has understood th e word "restriction" as something that restricts
someone or something, a limitation on action, a li miting condition or regulation. Accordingly, it
found, in the context of Article XI:2(a) of the GATT 1994, that the word "restriction" refers generally
to something that has a limiting effect.644 As used in Article 2.2 in co njunction with the word "trade",
the term means something having a limiting effect on trade. We recall that Article 2.2 does not
prohibit measures that have any trade-restrictive effe ct. It refers to "unnecessary obstacles" to trade
and thus allows for some trade-restrictiveness; mo re specifically, Article 2.2 stipulates that technical
regulations shall not be "more trade-restrictive than necessary to fulfil a legitimate objective".
Article 2.2 is thus concerned with restrictions on international trade that ex ceed what is necessary to
achieve the degree of contribution that a technical regulation makes to the achievement of a legitimate
objective.
320. The use of the comparative "more … than" in th e second sentence of Article 2.2 suggests that
the existence of an "unnecessary obstacle[] to inte rnational trade" in the first sentence may be
established on the basis of a comparative analysis of the above-mentioned factors. In most cases, this
would involve a comparison of the trade-restrictiveness and the degree of achievement of the
objective by the measure at issue with that of po ssible alternative measures that may be reasonably
available and less trade restrictive than the challenged measure, taking account of the risks
non-fulfilment would create.
645 The Appellate Body has clarified that a comparison with reasonably
available alternative measures is a conceptual tool for the purpose of ascertaining whether a
challenged measure is more trade restrictive than necessary.
321. Article 2.2 of the TBT Agreement further stipulates that the risks non-fulfilment of the
objective would create shall be taken into account, and that, in assessing such risks, relevant elements
of consideration are " inter alia : available scientific and technical information, related processing
technology or intended end-uses of products". As we see it, the obligation to consider "the risks
non-fulfilment would create" suggests that the comp arison of the challenged measure with a possible

643Similarly, in the context of Article XX of the GATT 1994 and Article XIV of the GATS, "necessity"
is determined on the basis of "weighing and balancing" a number of factors. (Appellate Body Report,
Brazil – Retreaded Tyres, para. 178; Appellate Body Report, US – Gambling, paras. 306-308)
644The Appellate Body addressed this question in the context of Article XI:2(a) of the GATT 1994 in
Appellate Body Reports, China – Raw Materials, para. 319.
645Similarly, the Appellate Body has held that in order to establish "necessity" in the context of
Article XX of the GATT 1994 and Article XIV of the GATS, a comparison of a measure found to be
inconsistent and reasonably available less trade-restrictiv e alternatives should be undertaken. (See, for instance,
Appellate Body Report, Korea – Various Measures on Beef, para. 166)

alternative measure should be made in the light of the nature of the risks at issue and the gravity of the
consequences that would arise from non-fulfilment of the legitimate objective. This suggests a further
element of weighing and balancing in the determin ation of whether the trade-restrictiveness of a
technical regulation is "necessary" or, alternatively, whether a possible alternative measure, which is
less trade restrictive, would make an equivalent contribution to the releva nt legitimate objective,
taking account of the risks non-fulfilment would create, and would be reasonably available.646
322. In sum, we consider that an assessment of whether a technical regulation is "more
trade-restrictive than necessary" with in the meaning of Article 2.2 of the TBT Agreement involves an
evaluation of a number of factors. A panel should begin by considering factors that include: (i) the
degree of contribution made by the measure to the legitimate objective at issue; (ii) the
trade-restrictiveness of the measure; and (iii) the nature of the risks at issue and the gravity of
consequences that would arise from non-fulfilment of the objective(s) pursued by the Member
through the measure. In most cases, a comparison of the challenged measure and possible alternative
measures should be undertaken.
647 In particular, it may be relevant for the purpose of this comparison
to consider whether the proposed alternative is less trade restrictive, whether it would make an
equivalent contribution to the relevant legitimat e objective, taking account of the risks non-fulfilment
would create, and whether it is reasonably available.
323. With respect to the burden of proof in showing that a technical regulation is inconsistent with
Article 2.2, the complainant must prove its clai m that the challenged measure creates an unnecessary
obstacle to international trade. 648 In order to make a prima facie case, the complainant must present
evidence and arguments sufficient to establish that the challenged measure is more trade restrictive
than necessary to achieve the contribution it makes to the legitimate objectives, taking account of the
risks non-fulfilment would create. In making its prima facie case, a complainant may also seek to
identify a possible alternative measure that is less tr ade restrictive, makes an equivalent contribution
to the relevant objective, and is reasonably availabl e. It is then for the respondent to rebut the
complainant's prima facie case, by presenting evidence and arguments showing that the challenged
measure is not more trade restrictive than necessary to achieve the contribution it makes toward the
objective pursued and by demonstrating, for example, that the alternative measure identified by the

646See also Appellate Body Report, US – Gambling, para. 307.
647We can identify at least two instances where a co mparison of the challenged measure and possible
alternative measures may not be required. For example, it would seem to us that if a measure is not trade
restrictive, then it may not be inconsistent with Article 2.2. Conversely, if a meas ure is trade restrictive and
makes no contribution to the achievement of the legitimate objective, then it may be inconsistent with
Article 2.2.
648Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335. See also
Appellate Body Report, EC – Sardines, paras. 277-280.

complainant is not, in fact, "reasonably available", is not less trade restrictive, or does not make an
equivalent contribution to the achievement of the relevant legitimate objective.
2. The Panel's Application of Article 2.2
324. We turn next to the review of the Panel's application of Article 2.2 of the TBT Agreement.
The United States alleges that the Panel erred in finding that the "coexistence" of the
US "dolphin-safe" label and the AIDCP label provid es a reasonably available, less trade-restrictive
means of achieving the objectives pursued by the Unite d States at its chosen level. According to the
United States, allowing the AIDCP label to coexis t with the US "dolphin-safe" label would not
address risks to dolphins outside the ETP, since by it s terms it only applies to tuna caught inside the
ETP. The United States further points out that the AIDCP label allows the practice of setting on
dolphins to catch tuna, which is harmful to dol phins, and would therefore frustrate the dolphin
protection objective.
649 Moreover, in the United States' view, coexistence of the two labels would be
confusing for consumers, because the AIDCP and the US official "dolphin-safe" label are virtually
identical, and consumers would have difficulty appreciating the difference in what each label signifies
so as to make an informed decision about the tuna they buy. 650 Finally, the United States alleges that
the Panel erred by implying that the United States is required to fulfil its objective to the same level
inside and outside the ETP, regardless of the co sts, and that this approach does not respect
"well-established approaches to policymaking", such as weighing costs and benefits, which are also
consistent with the TBT Agreement.651
325. In reviewing the Panel's application of Article 2.2 to the facts of this case, we recall its finding
that the objectives at issue are, first, "ensuring that consumers are not misled or deceived about
whether tuna products contain tuna that was ca ught in a manner that adversely affects dolphins" 652;
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".653
326. Before the Panel, Mexico argued that "a 'r easonably available alternative measure' for the
United States would be to permit the use in the US market of the AIDCP 'dolphin safe' label." 654 It
was for the Panel, therefore, in assessing Mexico 's claim that the US "dolphin-safe" labelling
provisions "are more trade-restrictive than necessary" within the meaning of Article 2.2, to examine,
inter alia , the contribution that the US measure makes to the achievement of its objectives; the

652Panel Report, paras. 7.413 and 7.401.
653Panel Report, paras. 7.425 and 7.401.
654Panel Report, para. 7.566 (referring to Mexico's response to Panel Question 134, para. 52).

trade-restrictiveness of the US "dolphin-safe" labelling provisions; whether Mexico had identified a
"reasonably available" and less trade-restrictive alte rnative measure, and to compare the degree of the
US measure's contribution with that of the alterna tive measure, which is reasonably available and less
trade restrictive, taking account of the risks non-fulfilment would create.
327. With respect to the degree to which the measu re at issue contributes to the United States'
consumer information objective, we recall the Pane l's finding that the measure at issue "can only
partially ensure that consumers are informed about wh ether tuna was caught by using a method that
adversely affects dolphins". 655 This conclusion is based on the Panel's finding that fishing methods
other than setting on dolphins or high-sea driftn et fishing outside the ETP may cause adverse effects
on dolphins, and that to the extent tuna caught under such circumstances may be labelled
"dolphin-safe" pursuant to the US "dolphin-safe" labelling provisions, consumers may be misled
about whether tuna was caught using a technique that does not adversely affect dolphins.656 Similarly,
regarding the question of the degree to which the measure at issue contributes to the United States'
dolphin protection objective, the Panel found that the US "dolphin-safe" labelling provisions are
capable of protecting dolphins by ensuring that th e US market is not used to encourage fishing
practices that may kill or seriously injure dolphins, only within the ETP. The Panel further found that,
in other fisheries, the measure at issue is capable of achieving its objective only in relation to the
fishing practices of setting on dolphi ns and of using high seas driftnets, and that, in relation to all
other fishing techniques used outside the ETP, the m easure at issue is not able to contribute to the
protection of dolphins. Accordingly, the Panel conc luded that US "dolphin-safe" labelling provisions
"may, at best, only partially fulfil their stated objec tive of protecting dolphins by ensuring that the
US market is not used to encourage fishing fleets to catch tuna in a manner that adversely affects
dolphins".657
328. The Panel then considered the extent to whic h the proposed alternative measure would fulfil
the United States' objectives and concluded, first, wi th respect to the consumer information objective,
that "the extent to which consumers would be misl ed as to the implications of the manner in which
tuna was caught would not be greater if the AI DCP label were allowed to co-exist with the
US dolphin-safe provisions". 658 Second, with respect to the dolphin protection objective, the Panel
found that "allowing compliance with the AIDCP la belling requirements to be advertised on the
US market would discourage observed dolphin mo rtality resulting from setting on dolphins to the
same extent as the existing US dolphin-safe provisions do and would involve no reduction in the level

655Panel Report, para. 7.563. (original emphasis)
656Panel Report, para. 7.562.
657Panel Report, para. 7.599.
658Panel Report, para. 7.573.

of protection in this respect."
659 It appears to us, however, that the Panel's analysis of whether Mexico
had demonstrated that the US "dolphin-safe" labe lling provisions are "more trade-restrictive than
necessary" within the meaning of Article 2.2 was based, at least in part, on an improper comparison.
With respect to the dolphin protection objectiv e, the Panel contrasted the AIDCP labelling
requirements with the US "dolphin-safe" labelling pr ovisions, stating that "allowing compliance" with
the former "to be advertised on the US market would discourage observed dolphin mortality resulting
from setting on dolphins to the same extent as the existing US dolphin-safe provisions do". 660
Similarly, with respect to the consumer information objective, the Panel noted, inter alia, that, "under
the US measures", it is possible that tuna caught du ring a trip where dolphins were in fact killed or
injured may be labelled "dolphin-safe". 661 The Panel compared that to the scenario "under the
AIDCP", where "a label would only be granted if no dolphins [were] killed, but where certain
unobserved adverse effects could nonethel ess have been caused to dolphins". 662 This comparison,
however, fails to take into account that the alternative measure identified by Mexico is not the AIDCP
regime, as such, but rather the coexistence of the AIDCP rules with the US measure.
329. In any event, it would appear that, in respect of the conditions for labelling as "dolphin-safe"
tuna products containing tuna harvested outside the ETP, there is no difference between the measure
at issue and the alternative measure identifie d by Mexico, namely, the coexistence of the
US "dolphin-safe" labelling provisions with the AIDC P rules. We recall that the geographic scope of
application of the AIDCP rules is limited to the ETP. Thus, the conditions for fishing outside the ETP
would be identical under the alternative measure proposed by Mexico, since only those set out in the
US measure would apply. Therefore, for fishing activities outside the ETP, the degree to which the
United States' objectives are achieved under the alternative measure would not be higher or lower than
that achieved by the US measure, it would be the same. Inside the ETP, however, the measure at
issue and the alternative measure set out different requirements. Under the alternative measure
identified by Mexico, tuna that is caught by setting on dolphins would be eligible for a "dolphin-safe"
label if the prerequisites of the AIDCP label have been complied with. By contrast, the measure at
issue prohibits setting on dolphins, and thus tuna ha rvested in the ETP would only be eligible for a
"dolphin-safe" label if it was caught by methods other than setting on dolphins.
330. It would seem, therefore, that the Panel's comparison of the degree to which the alternative
measure identified by Mexico contributes to the United States' objectives should have focused on the
conditions inside the ETP. In particular, for tuna harvested inside the ETP, the Panel should have

659Panel Report, para. 7.612.
660Panel Report, para. 7.612.
661Panel Report, para. 7.573.
662Panel Report, para. 7.573.

examined whether the labelling of tuna products co mplying with the requirements of the AIDCP label
would achieve the United States' objectives to an equi valent degree as the measure at issue. We note,
in this regard, the Panel's finding, undisputed by the participants, that dolphins suffer adverse impact
beyond observed mortalities from setting on dolphins 663, even under the restrictions contained in the
AIDCP rules.664 Since under the proposed alternative measure tuna caught in the ETP by setting on
dolphins would be eligible for the "dolphin-safe" labe l, it would appear, therefore, that the alternative
measure proposed by Mexico would contribute to both the consumer information objective and the
dolphin protection objective to a lesser degree than th e measure at issue, because, overall, it would
allow more tuna harvested in conditions that adversely affect dolphins to be labelled "dolphin-safe".665
We disagree therefore with the Panel's findings th at the proposed alternative measure would achieve
the United States' objectives "to the same exte nt" as the existing US "dolphin-safe" labelling
provisions, and that the extent to which consumers would be misled as to the implications of the
manner in which tuna was caught "would not be gr eater" under the alternative measure proposed by
Mexico.
331. For these reasons, we find that the Panel's co mparison and analysis is flawed and cannot
stand. Therefore, the Panel erred in concluding, in paragraphs 7.620 and 8.1( b) of the Panel Report,
that it has been demonstrated that the measure at issu e is more trade restrictive than necessary to fulfil
the United States' legitimate objectives, taking account of the risks non-fulfilment would create.

663In particular, the Panel considered cow-calf separation; potential muscle injury resulting from the
chase; immune and reproductive systems failures; and other adverse health consequences for dolphins, such as
continuous acute stress. (See Panel Report, paras. 7.491-7.506)
664Panel Report, para. 7.504. The Panel stated that:
… it appears that there is a degree of uncertainty in relation to the extent to
which setting on dolphins may have an adverse impact on dolphins beyond
observed mortality. Nonetheless, we consider that sufficient evidence has
been put forward by the United States to raise a presumption that genuine
concerns exist in this respect. The information presented to us in this
respect also suggests that this is a fi eld of research in which the collection
and analysis of information is inherently difficult, but that efforts have been
ongoing to better understand these issues, including in the context of the
implementation of the DPCIA. We further note that such effects would
arise as a result of the chase in itself, and would thus exist even if measures
are taken in order to avoid the taking and killing of dolphins in the nets, as is
the case under the AIDCP. (footnotes omitted)
665We also note in this regard the Panel's finding in the context of Mexico's claim under Article 2.4 of
the TBT Agreement. In particular, the Panel stated:
Therefore, with the AIDCP label alone, consumers will not be misled or
deceived about whether dolp hins were killed during the sets in which the
tuna is caught. However, to the extent that there might be other adverse
effects deriving from that fishing method, the AIDCP standard alone would
not address them. (Panel Report, para. 7.729); [and]
[T]he AIDCP standard, applied alone , would not be an effective or
appropriate means of fulfilling the US objective of ensuring that consumers
are not misled or deceived about whet her tuna products contain tuna that
was caught in a manner that adversely affects dolphins.
(Panel Report, para. 7.731)

Accordingly, we reverse the Panel's findings that the measure at issue is inconsistent with Article 2.2
of the TBT Agreement.
332. The United States has raised an additional clai m that the Panel acted inconsistently with
Article 11 of the DSU in its assessment of the evidence relating to the extent to which the US measure
fulfils a legitimate objective. In particular, the Un ited States takes issue with the Panel's finding that
the risks to dolphins outside the ETP from fishing methods other than setting on dolphins "are not
lower than similar risks f aced by dolphins in the ETP"
666, and the finding that the Panel was not
persuaded that "at least some of the dolphin populations affected by fishing techniques other than
setting on dolphins are not facing risks at least equivalent to those currently faced by dolphin
populations in the ETP under AIDCP monitoring."667
333. We have concluded that the Panel erred in fi nding that it has been demonstrated that the
US measure is more trade restrictive than necessa ry within the meaning of Article 2.2 of the
TBT Agreement. Having reversed this finding, we do not find it necessary to address the
United States' additional claim that the Panel acted inconsistently with its obligations under Article 11
of the DSU.668
C. Other Appeal by Mexico
334. Mexico raises two claims in its conditional a ppeal with respect to the Panel's finding under
Article 2.2 of the TBT Agreement . Each of these claims is conditional upon the Appellate Body
reversing the Panel's finding that the measure at issue is inconsistent with Article 2.2 of the
TBT Agreement. First, Mexico requests that we reverse the Panel's intermediate finding that the
United States' objective of 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 is a
legitimate objective, and that we find, instead, that it is not a legitimate objective within the meaning
of Article 2.2. 669 In the alternative, Mexico requests th at we find the measure at issue to be
inconsistent with Article 2.2 based on the Panel's earlier finding that the US measure did not entirely
fulfil the United States' objectives.670
335. With respect to its first claim, Mexico submits that the Panel erred in finding the
United States' dolphin protection objective to be a leg itimate objective. Mexico maintains that the list
of examples of legitimate objectives in Article 2.2 of the TBT Agreement informs the interpretation of

668See also Appellate Body Report, US – Upland Cotton, para. 695.
669Mexico's other appellant's submission, para. 278.
670Mexico's other appellant's submission, para. 284.

the term "legitimate objective" in that provision and points out that none of the listed objectives
include language similar to "by ensuring that the US market is not used to encourage" or other
language reflecting a "coercive an d trade-restrictive objective". 671 However, for Mexico, the
United States' dolphin protection objective is a "coe rcive objective" because its purpose is to "coerce"
another WTO Member to change its practices to comp ly with a unilateral policy of the United States.
Moreover, Mexico alleges that the dolphin protect ion objective is unnecessary, and constitutes a
means of arbitrary or unjustifiable discrimination or a disguised restriction on trade. Mexico asserts
that the situation in US – Gasoline is "closely analogous" to the s ituation in the present case, where
the United States has disregarded a multilateral agr eement that addresses the same subject matter as
the measure at issue.672
336. We have reversed the Panel's finding that the measu re at issue is inconsistent with Article 2.2
of the TBT Agreement. Thus, the condition of Mexico's other appeal with respect to the Panel's
findings under Article 2.2 is fulfilled and, accordingl y, we consider Mexico's arguments with respect
to the Panel's findings under Article 2.2 of the TBT Agreement.
337. At the outset, we recall that the United States' dolphin protection objective is phrased as
follows: "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". 673 Mexico does
not claim that "contributing to the protection of dolphins" is an illegitimate objective; instead,
Mexico argues that it is illegitimate to pursue this objective "by ensuring that the US market is not
used to encourage" certain fishing practices. It thus appears to us that Mexico does not take issue
with the United States' dolphin protection objective per se, but with the means used in pursuance of
this objective.
338. Article 2.2 of the TBT Agreement recognizes that a technical regulation shall not create
"unnecessary obstacles" to international trade. The provision thus envisages that some
trade-restrictiveness may arise from a technical regul ation. However, the technical regulation would
not be inconsistent with Article 2.2 unless it is found to constitute an "unnecessary obstacle[] to
international trade". Hence, the mere fact that a WTO Member adopts a measure that entails a burden
on trade in order to pursue a particular objective cannot per se provide a sufficient basis to conclude
that the objective that is being pursued is not a "legitimate objective" within the meaning of
Article 2.2.

671Mexico's other appellant's submission, para. 271.
672Mexico's other appellant's submission, para. 275 (referring to Appellate Body Report,
US – Gasoline, p. 25, DSR 1996:1, 3, at 23).
673Panel Report, paras. 7.401 and 7.425.

339. We note Mexico's argument that the United States' dolphin protection objective is
unnecessary, and constitutes a means of arbitrary or unjustifiable discrimination or a disguised
restriction on trade
674, and is therefore inconsistent with the sixth recital of the preamble of the
TBT Agreement.675 According to the sixth recital, what mu st not be applied in a manner that would
constitute a means of arbitrary or unjustifiabl e discrimination between countries where the same
conditions prevail or a disguised rest riction on international trade is a measure, and not the objective
pursued by the technical regulation.
340. We now turn to Mexico's second ground of app eal. Mexico alleges that the Panel erred in
proceeding to examine whether there was a less trade- restrictive alternative measure after it had found
that the measure at issue could, at best, only pa rtially fulfil the two United States' objectives. For
Mexico, it is not possible to find that there is a less trade-restrictive alternative measure that fulfils the
objectives when the measure at issue itself does not fulfil the objectives. In addition, it would be
impossible to take "account of the risks non-fulfilment would create" if, in fact, non-fulfilment already
exists with the measure at issue. Mexico argues that, upon concludi ng that the US "dolphin-safe"
labelling provisions did not fulfil the two United St ates' objectives, the Panel's analysis should have
ended and it should have found that the US "dolphin-safe" labelling provisions were inconsistent with
Article 2.2.676
341. Mexico's allegation of error is based on its cont ention that it is not possible to find that there
is a less trade-restrictive alternative measure th at fulfils the United States' objectives when the
measure at issue itself does not fulfil the objectives. 677 We note, however, that the Panel found, with
respect to the United States' consumer informatio n objective, that the measure at issue "can only
partially ensure that consumers are informed about wh ether tuna was caught by using a method that
adversely affects dolphins". 678 Similarly, with respect to the United States' dolphin protection
objective, the Panel found that the US "dolphin-safe" labelling provisions "may, at best, only partially
fulfil their stated objective".679 The Panel did not find that the US "dolphin-safe" labelling provisions
do not fulfil their objectives or are not "capable" of fulfilling the United States' objectives 680, but that
the US measure did fulfil the United States' objectives to a certain extent. We have stated above that

674Mexico's other appellant's submission, para. 272.
675Mexico submits that the situation in the present dispute is similar to the factual situation in
US – Shrimp, in that the US "dolphin-safe" labelling provisions have created a "rigid and unbending standard",
and that the purpose of the measure at issue is to "unilaterally and extraterritorially impose U.S. fishing method
requirements" as a condition for access to the principal distribution channels in the US tuna products market.
(Mexico's appellee's submission, paras. 178-186)
676Mexico's other appellant's submission, paras. 279-284.
677Mexico's other appellant's submission, para. 282.
678Panel Report, para. 7.563. (original emphasis)
679Panel Report, para. 7.599.
680Mexico's other appellant's submission, para. 282.

the question of whether a technical regulation "fulfi ls" an objective is concerned with the degree of
contribution that the technical regulation makes towa rd the achievement of the legitimate objective.
An assessment of the necessity of a measure's trad e-restrictiveness under Article 2.2 therefore focuses
on the extent to which a measure contributes to the objective pursued.
342. In sum, therefore, we reject Mexico's claim that the Panel erred in finding the United States'
dolphin protection objective to be a legitimate objective and we also reject Mexico's request to find
the measure at issue inconsiste nt with Article 2.2 of the TBT Agreement based on the Panel's finding
that the measure did not entirely fulfil its objectives.
VIII. Article 2.4 of the TBT Agreement
A. Introduction
343. The United States and Mexico each appeal differe nt elements of the Panel's findings under
Article 2.4 of the TBT Agreement . The United States appeals the Panel's finding that the "AIDCP
dolphin-safe definition and certification" constitute a "relevant international standard" within the
meaning of Article 2.4 of the TBT Agreement.681 In particular, the United States appeals the Panel's
intermediate finding that the AIDCP constitutes an "international standardizing organization" for the
purposes of Article 2.4 of the TBT Agreement.682 Mexico appeals the Panel's conclusion that Mexico
failed to demonstrate that the AIDCP standard 683 is an effective and appropriate means to fulfil the
objectives pursued by the United States.684
344. The Panel interpreted the term "international standard" in Article 2.4 of the TBT Agreement to
mean a "standard that is adopted by an interna tional standardizing/standards organization and made
available to the public". 685 The Panel in turn interpreted th e term "international standardizing
organization" to refer to "a legal or administrativ e entity based on the membership of other bodies or
individuals that has an established constitution and its own administration, has recognized activities in
standardization, and whose membership is open to the relevant national body of every country." 686

681Panel Report, para. 7.707.
682Panel Report, para. 7.693.
683In our discussion, we use the term "AIDCP standard" to describe what the Panel referred to as the
"AIDCP dolphin-safe definition and certification", the AIDCP "dolphin-safe definition", the "AIDCP standard",
and the "AIDCP dolphin-safe standard". The question of what the Panel found to be the AIDCP standard was
contested among the parties on appeal. Our use of the term "AIDCP standard" is without prejudice to the
substantive issue of whether the term "AIDCP standard" refers merely to the AIDCP "dolphin-safe" definition
or to the "system" for the tracking and "dolphin-safe" certification of tuna and tuna products established under
the AIDCP. (See Mexico's other appellant's submission, paras. 237 and 238; and United States' appellee's
submission, para. 120. For the Panel's findings, see Panel Report, paras. 7.673-7.677)
684Panel Report, para. 7.740.
685Panel Report, para. 7.663.
686Panel Report, para. 7.680.

The Panel found that the "AIDCP dolphin-safe defi nition and certification" constitute a "standard"
687,
that the AIDCP is an "interna tional standardizing organization" 688, and that the AIDCP standard was
made available to the public.689
345. The Panel further found that the AIDCP sta ndard is "relevant" for the purpose of the
US "dolphin-safe" labelling provisions 690 and that the United States failed to base its "dolphin-safe"
labelling provisions on the AIDCP standard. 691 However, the Panel concluded that Mexico had
"failed to demonstrate that the [AIDCP standard] is an effective and appropriate means to fulfil the
US objectives at the United States' chosen level of protection".692
346. The United States appeals the Panel's conclusi on that the "AIDCP dolphin-safe definition and
certification" constitute a "relevant international sta ndard", and in particular the Panel's intermediate
finding that the AIDCP is an "inter national standardizing organization". 693 The United States argues
that the parties to the AIDCP are parties to an international agreement, not to a body or an
organization, that the AIDCP does not have "recogn ized activities in standardization", and that the
AIDCP is not "international" within the meaning of the TBT Agreement because its membership was
not, and is not, open to all WTO Members. 694 Mexico responds that the Panel properly addressed and
rejected the United States' arguments, and requests the Appellate Body to uphold the Panel's finding
that the AIDCP standard is a "relevant international standard" within the meaning of Article 2.4.695
347. Mexico appeals the Panel's finding that Mexi co failed to demonstrate that the AIDCP
standard is an effective and appropriate means to fulfil the legitimate objectives pursued by the
United States.696 Mexico argues that the Panel erred in not evaluating whether the AIDCP standard
would be effective and appropria te in fulfilling the United States' objectives outside the ETP. 697
Mexico further submits that the Panel correctly id entified, but then misapplied, the legal test for
assessing whether the AIDCP standard would be eff ective and appropriate for the fulfilment of the
objectives pursued by the United States.698 The United States responds that, once the Panel had found
that the AIDCP standard was ineffective or inap propriate for achieving the United States' objectives
within the ETP, there was no need for it to cons ider the hypothetical application of the AIDCP

687Panel Report, para. 7.677.
688Panel Report, para. 7.693.
689Panel Report, para. 7.695.
690Panel Report, para. 7.707.
691Panel Report, para. 7.716.
692Panel Report, para. 7.740.
696Mexico's other appellant's submission, para. 260.
697Mexico's other appellant's submission, para. 250.
698Mexico's other appellant's submission, paras. 233 and 251.

standard outside the ETP. 699 The United States further claims that Mexico does not challenge the
Panel's finding that the AIDCP standard would not m eet all of the United States' objectives, and that
the Panel's conclusion that Mexico had failed to demonstrate that the AIDCP standard is an effective
and appropriate means to fulfil the United States' objectives must therefore stand.700
348. Before turning to our analysis, we note that th e United States' appeal requires us to decide
what constitutes an "international standard" for the purposes of the TBT Agreement. This question is
important because, by virtue of Article 2.4, if a standard is found to constitute a "relevant international
standard", WTO Members are required to use it, or its relevant parts, as a basis for their technical
regulations, except when such standard would be an ineffective or inappropriate means for the
fulfilment of the legitimate objectives pursued by the Member in question. 701 Moreover, pursuant to
Article 2.5 of the TBT Agreement , technical regulations that are in accordance with relevant
international standards are rebuttably presumed not to create unnecessary obstacles to international
trade.
B. The United States' Appeal
1. The Meaning of the Term "International Standard"
349. The text of Article 2.4 of the TBT Agreement reads as follows:
Where technical regulations are re quired and relevant international
standards exist or their completion is imminent, Members shall use
them, or the relevant parts of them, as a basis for their technical
regulations except when such international standards or relevant parts
would be an ineffective or inappr opriate means for the fulfilment of
the legitimate objectives pursued, for instance because of
fundamental climatic or geogra phical factors or fundamental
technological problems.
350. The composite term "international sta ndard" is not defined in Annex 1 of the
TBT Agreement. However, Annex 1.2 to the TBT Agreement defines a "standard" as follows:
Document approved by a recognized body, that provides, for
common and repeated use, rules, guidelines or characteristics for
products or related processes and production methods, with which
compliance is not mandatory. It may also include or deal exclusively
with terminology, symbols, packaging, marking or labelling

701This point is emphasized by the United States and by a number of third participants. (See
United States' appellant's submission, paras. 144-146; Brazil's third participant's submission, para. 47;
European Union's third participant's submission, para. 84; and Japan's third participant's submission, para. 28)

requirements as they apply to a product, process or production
method.
Explanatory note
The terms as defined in ISO/IEC Guide 2 cover products, processes
and services. This Agreement deals only with technical regulations,
standards and conformity assessment procedures related to products
or processes and production methods . Standards as defined by
ISO/IEC Guide 2 may be mandatory or voluntary. For the purpose of
this Agreement standards are defined as voluntary and technical
regulations as mandatory documents . Standards prepared by the
international standardization comm unity are based on consensus.
This Agreement covers also documents that are not based on
consensus.
351. Moreover, Annex 1.4 to the TBT Agreement defines an "international body or system" as
follows:
Body or system whose membership is open to the relevant bodies of
at least all Members.
352. The TBT Agreement thus establishes the characteristics of a standard and of an international
body. The Explanatory Note to Annex 1.2 states that "[s]tandards prepared by the international
standardization community are based on consensus."
353. The introductory clause of Annex 1 to the TBT Agreement provides that terms used in the
TBT Agreement that are also "presented" in the ISO/IE C Guide 2: 1991, General Terms and Their
Definitions Concerning Standard ization and Related Activities
702 (the "ISO/IEC Guide 2: 1991")
"shall … have the same meaning as given in th e definitions in the said Guide". The term
"international standard" is defined in the ISO/IEC Gu ide 2: 1991 as a "standard that is adopted by an
international standardizing/standards orga nization and made available to the public." 703 T h i s
definition suggests that it is primarily the characteris tics of the entity approving a standard that lends
the standard its "international" character. By cont rast, the subject matter of a standard would not
appear to be material to the determination of whether the standard is "international". The definition of
"international standard" in the ISO/IEC Guide 2: 1991 and the Explanatory Note to the definition of
"standard" in the TBT Agreement also suggest that there may be additional procedural conditions that
have to be met for a standard to be cons idered "international" for the purposes of the TBT Agreement.
Since the United States' appeal is limited to the characteristics of the entity approving an
"international" standard, we do not need to address in this appeal the question of whether, in order to

702International Organization for Standardization (ISO) / International Electrotechnical Commission
(IEC) Guide 2, General Terms and Their Definitions Concerning Standardization and Related Activities,
sixth edition (1991).
703ISO/IEC Guide 2: 1991, 3.2.1. See also Panel Report, para. 7.663.

constitute an "international standard", a standard mu st also be "based on consensus". Nor do we have
to address whether it has to be "made available to the public".704
354. The introductory clause of Annex 1 to the TBT Agreement also stipulates that: "[f]or the
purpose of this Agreement, however, the following de finitions shall apply". The use of the word
"however" indicates that the definitions contained in Annex 1 to the TBT Agreement prevail to the
extent that they depart from the definitions set out in the ISO/IEC Guide 2: 1991. 705 A panel must
therefore carefully scrutinize to what ex tent the definitions in Annex 1 to the TBT Agreement depart
from the definitions in the ISO/IEC Guide 2: 1991.
355. With respect to the type of entity approving an "international" standard, the
ISO/IEC Guide 2: 1991 refers to an "o rganization", whereas Annex 1.2 to the TBT Agreement
stipulates that a "standard" is to be approved by a "body". According to the ISO/IEC Guide 2: 1991, a
"body" is a "legal or administrative entity that has specific tasks and composition", whereas an
"organization" is a "body that is based on the me mbership of other bodies or individuals and has an
established constitution and its own administration". 706 The answer to the question of whether an
"international" standard has to be approved by a "body" or an "organization" thus determines whether
the entity can be a "legal or administrative entity that has specific tasks and composition", or whether
the entity must also be "based on the membership of other bodies or individuals" and must have "an
established constitution and its own administration".
356. Annex 1.2 to the TBT Agreement refers to a "body", not to an "organization", and Annex 1.4
defines an "international body or system", but not an "international organization". This suggests that,
for the purposes of the TBT Agreement, "international" standards are adopted by "bodies", which may,
but need not necessarily, be "organizations". This is also supported by the context provided by other
provisions of the TBT Agreement. For example, Articles 2.6, 10.1.4, 11.2, 12.5, and 12.6, as well as
Annexes 3.G and 3.H to the TBT Agreement envisage that international standards are prepared by
"international standardizing bodies".707 Since the definitions in Annex 1 to the TBT Agreement
prevail over the definitions in the ISO/IEC Guide 2: 1991, we find that, in order to constitute an
"international standard", a standard has to be adopted by an "international standardizing body" for the
purposes of the TBT Agreement.

704We note that the Panel in this dispute analyzed whether the AIDCP standard had been adopted by
consensus. (Panel Report, para. 7.676) The Panel also examined whether the AIDCP standard had been "made
available to the public". (Panel Report, para. 7.695)
705See Appellate Body Report, EC – Sardines, paras. 224 and 225.
706ISO/IEC Guide 2: 1991, 4.1 and 4.2. See also Panel Report, para. 7.679.
707Emphasis added.

357. With respect to other necessary features of a body that can approve an "international"
standard, the ISO/IEC Guide 2: 1991 stipulates that it must be a "standardizing/standards"
organization. A "standardizing body" is defi ned as a "body that has recognized activities in
standardization", whereas a "standards body" is a "sta ndardizing body recognized at national, regional
or international level, that has as a principal func tion, by virtue of its statutes, the preparation,
approval or adoption of standards that are made available to the public."
708 Annex 1.2 to the
TBT Agreement provides that a "standard" must be approve d by a "recognized body". As we see it,
the definition of "standardizing body" in the ISO/IEC Guide 2: 1991 does not conflict with the
definition in the TBT Agreement. Instead, the definition in the IS O/IEC Guide 2: 1991 adds to and
complements the definition in the TBT Agreement, specifying that a body must be "recognized" with
respect to its "activities in standardization".
358. With regard to the requirement that only a document approved by an "international"
standardizing body can be an "international" standard, the ISO/IEC Guide 2: 1991 stipulates that a
standardizing organization is "inter national" if its "membership is open to the relevant national body
from every country", whereas Annex 1.5 to the TBT Agreement defines an "international body" as a
body "whose membership is open to the relevant bodies of at least all Members".
359. We consider, therefore, that a required element of the definition of an "international" standard
for the purposes of the TBT Agreement is the approval of the standard by an "international
standardizing body", that is, a body that has re cognized activities in standardization and whose
membership is open to the relevant bodies of at least all Members.
709 A s w e s e e i t , t h e d i f f e r e n t
components of this definition inform each other. The interpretation of the term "international
standardizing body" is therefore a holistic exercise in which the components of the definition are to be
considered together.
360. As noted above, the ISO/IEC Guide 2: 1991 defines a "body" as a "legal or administrative
entity that has specific tasks and composition". Wi th respect to the specific tasks, the definition
specifies that an international standardizing body must have "activities in standardization". "Activity"
is defined in the dictionary as the "state of being active". 710 The term "activity" thus may refer to an
instance of action, as well as a state. As a result, the use of the pl ural "activities" does not necessarily
imply that a body is, or has been, involved in the de velopment of more than one standard. As we see
it, a body simply has to be "active" in standardizati on in order to have "activities in standardization".

708ISO/IEC Guide 2: 1991, 4.3 and 4.4. A Note specifies that "a standards body may also have other
principal functions." (Ibid.)
709As noted above, we do not address any additio nal procedural conditions that may apply for a
standard to be "international" within the meaning of the TBT Agreement.
710Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. I, p. 23.

The word "standardization" is defined in the ISO/ IEC Guide 2: 1991 as the "[a]ctivity of establishing,
with regard to actual or potential problems, provi sions for common and repeated use, aimed at the
achievement of the optimum degree of order in a given context". 711 With respect to the "provisions"
that are established through standardization, we recall that the definition of a standard in the
TBT Agreement refers to a "document … that provides … rules, guidelines or characteristics for
products or related processes and production methods" and "may also include or deal exclusively with
terminology, symbols, packaging, marking or la belling requirements as they apply to a product,
process or production method".
361. Moreover, the definition of "international st andardizing body" provides that the body's
activities in standardization must be "recognized". The term "recognize" is defined as "[a]cknowledge
the existence, legality, or validity of, [especially] by formal approval or sanction; accord notice or
attention to; treat as worthy of consideration". 712 These definitions fall along a spectrum that ranges
from a factual end (acknowledgement of the ex istence of something) to a normative end
(acknowledgement of the validity or legality of so mething). In interpreting "recognized activities in
standardization", we will therefore bear in mind bot h the factual and the normative dimension of the
concept of "recognition".
362. The definition of a "standards body" in the ISO/IEC Guide 2: 1991 sheds light on the question
of what it means for a body to have "recognized activities in standardization". We recall that a
"standards body" is a "standardizing body recognized at national, regional or in ternational level, that
has as a principal function, by virtue of its statutes, the preparation, approval or adoption of standards
that are made available to the public." 713 By implication, a "standardizing body", that is, a body with
"recognized activities in standardization", does not need to have standardization as its principal
function, or even as one of its principal functions. 714 At the same time, we note that the factual
dimension of the concept of "recognition" would appear to require, at a minimum, that
WTO Members are aware, or have reason to expect, that the international body in question is engaged
in standardization activities.
363. With respect to the question of who has to r ecognize a body's activities in standardization, we
note that Articles 2.6, 11.2, and 12.6 of the TBT Agreement contemplate that "Members" participate in
international standardizing activities. Artic le 12.5, Annex 3.G, and Annex 1.4 to the TBT Agreement,

711ISO/IEC Guide 2: 1991, 1.1.
712Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. II, p. 2489. See also Panel Report, para. 7.686.
713ISO/IEC Guide 2: 1991, 4.4.
714We recall that the definition of "standards body" in the ISO/IEC Guide 2: 1991 is accompanied by a
Note that specifies that "a standards body may also have other principal functions." (ISO/IEC Guide 2: 1991,
4.4)

in turn, foresee the involvement of the "relevant bodies" or "standardizing bodies" of Members in the
development of international standards.
715 We further note that, under the SPS Agreement, "relevant
international organizations" are identified by the SPS Committee, which is composed of all
WTO Members.716 This context suggests that, in examining whether an international body has
"recognized activities in standardization", eviden ce of recognition by WTO Members as well as
evidence of recognition by national standardizing bodies would be relevant.
364. With respect to the composition of the body, th e definition specifies that membership in an
international standardizing body must be "open to the relevant bodies of at least all Members". The
term "open" is defined as "accessible or available without hindrance", "not confined or limited to a
few; generally accessible or available".717 Thus, a body will be open if membership to the body is not
restricted. It will not be open if membership is a priori limited to the relevant bodies of only some
WTO Members.
365. We also note that the TBT Agreement distinguishes international bodies, "whose membership
is open to the relevant bodies of at least all Members", and regional bodies, "whose membership is
open to the relevant bodies of only some of the Members". 718 The TBT Agreement thus explicitly
stipulates that not all transnati onal standardizing bodies are "international" for the purposes of the
TBT Agreement.
366. We further note, as did the Panel, that both th e United States and Mexico have referred in
their arguments to the TBT Committee Decision on Principles for the Development of International
Standards, Guides and Recommendations with Re lation to Articles 2, 5, and Annex 3 to
the Agreement (the "TBT Committee Decision"). 719 This Decision sets out principles and procedures
that standardizing bodies should observe when developing international standards.
367. Before the Panel, the United States relied on the TBT Committee Decision in support of its
interpretation of the term "internati onal standard" as a standard that is, inter alia, adopted by a body

715In addition, Article 10.1.4 of the TBT Agreement refers to "membership and participation of the
Member, or of relevant central or local government bodies within its territory, in international and regional
standardizing bodies".
716See SPS Agreement, Annex A.3(d).
717Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. II, p. 2007.
718TBT Agreement, Annexes 1.4 and 1.5.
719Decision of the Committee on Principles for the Development of International Standards, Guides and
Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement, in WTO document
G/TBT/1/Rev.10, Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to
Trade since 1 January 1995, 9 June 2011, pp. 46-48. This document is a revised version of G/TBT/1/Rev.9.
The text of the Decision is identical in both documents. (See also Panel Report, para. 7.665)

whose membership is open to the relevant bodies of at least all WTO Members. 720 The United States
argued that the principles enshrined in the Decision "reflect Members' shared views inter alia that …
international standardizing bodies 'should be open on a non-discriminatory basis to relevant bodies of
at least all WTO Members'". 721 The United States also acknowledged a suggestion by Canada that a
body may be "recognized" because it develops standa rds or engages in standardizing activities "in
accordance with certain recognized principles, for example, those in the Committee Decision".722 The
United States considered this view as one possi ble interpretation of the term "recognized body". 723
Mexico claimed that the "AIDCP system operates in conformity with" the TBT Committee
Decision.
724
368. Before the Panel, several third parties argued th at the Panel should interpret the concept of an
"international standardizing organization" in th e light of the TBT Committee Decision. Canada
submitted that the evaluation of whether a body c onstitutes a "recognized body" should take place "in
accordance with the six principles for the developm ent of international standards espoused in the
TBT Committee's Decision on Principles for the Deve lopment of International Standards, Guides and
Recommendations."725 Similarly, Japan argued that the Panel should "take into account" and "draw
on the guidance provided by" the principles contained in the TBT Committee Decision. 726 Moreover,
referring to the Decision, New Zealand noted that "[t]he TBT Committee has provided a clear
indication of the type of bodies that it considers to be international standardizing bodies and the
principles that such bodies should embrace."
727 Argentina and Brazil similarly relied on the principles
enunciated in the TBT Committee Decision in their su bmissions, particularly with respect to the
question whether the AIDCP is "open" to the relevant bodies of at least all Members.728
369. On appeal, the United States as well as Braz il and Japan reiterate their view that the
TBT Committee Decision should inform the interpreta tion of the concept "international standardizing
organization".729 Japan emphasizes that the Appellate Body's interpretation of Article 2.4 "should

720Panel Report, para. 7.642. See also United States' response to Panel Question 59, para. 136.
721United States' response to Panel Question 59, para. 136.
722Panel Report, para. 7.648.
723Panel Report, para. 7.648. See also United States' response to Panel Question 62, paras. 139
and 140.
724Panel Report, para. 7.645.
725Panel Report, para. 5.92.
726Panel Report, paras. 5.144 and 5.145.
727Panel Report, para. 5.179.
728Panel Report, paras. 5.25-5.30 (Argentina) and para. 5.75 (Brazil).
729United States' appellant's submission, paras. 139 and 146; Brazil's third participant's submission,
paras. 50 and 55.

apply" the principles of the Decision, and that "no purported international standard should be
recognized as such if these six principles were disregarded in its elaboration."
730
370. The TBT Committee Decision sets out several pr inciples that WTO Members have decided
"should be observed" when international standards, guides, and recommendations are elaborated "to
ensure transparency, openness, impartiality and con sensus, effectiveness and relevance, coherence,
and to address the concerns of developing countries". 731 The Panel considered it "appropriate to take
into account the principles contained in this deci sion where they may inform [its] understanding of
certain aspects of the ISO/IEC Guide defi nitions such as the terms 'international
standardizing/standards organization' and 'made available to the public' in the definition of
'international standard'." 732 The Panel did not explicitly comment on the legal status of the
TBT Committee Decision. However, it noted the statement of the panel in EC – Sardines that the
TBT Committee Decision "is a policy statement of preference and not the controlling provision in
interpreting the expression 'relevant internationa l standard' as set out in Article 2.4 of the
TBT Agreement".733
371. Pursuant to Article 3.2 of the DSU, panels and the Appellate Body are to "clarify" the
provisions of the covered agreements "in accordance with customary rules of interpretation of public
international law". This raises the question on what basis we can take into account the
TBT Committee Decision in the interpretation and application of Article 2.4 of the TBT Agreement.
In particular, the issue is whether the Decision can qualify as a "subsequent agreement between the
parties regarding the interpretation of the treaty or the application of its provisions" within the
meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties 734 (the
"Vienna Convention"). In this respect, we note that the Decision was adopted by the TBT Committee
in the context of the Second Triennial Review of the Operation and Implementation of the
TBT Agreement, which took place in the year 2000. 735 It was thus adopted subsequent to the

730Japan's third participant's submission, paras. 21 and 23.
731TBT Committee Decision, para. 1.
732Panel Report, para. 7.665.
734Vienna Convention on the Law of Treaties , done at Vienna, 23 May 1969, 1155 UNTS 331;
8 International Legal Materials 679.
735Committee on Technical Barriers to Trade, Se cond Triennial Review of the Operation and
Implementation of the Agreement on Technical Barriers to Trade, in WTO Document G/TBT/9, 13 November
2000.

conclusion of the TBT Agreement. We further note that the membership of the TBT Committee
comprises all WTO Members and that the Decision was adopted by consensus.736
372. With respect to the question of whether the terms and content of the Decision express an
agreement between Members on the interpretation or application of a provision of WTO law, we note
that the title of the Decision expressly refers to "Principles for the Development of International
Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of
the Agreement".737 We further note that the TBT Committee undertook the activities leading up to the
adoption of the Decision "[w]ith a view to de veloping a better understa nding of international
standards within the Agreement" 738 and decided to develop the principles contained in the Decision,
inter alia, "to ensure the effective application of the Agreement" and to "clarify and strengthen the
concept of international standards under the Agreement". 739 We therefore consider that the
TBT Committee Decision can be considered as a "s ubsequent agreement" within the meaning of
Article 31(3)(a) of the Vienna Convention . The extent to which this Decision will inform the
interpretation and application of a term or provision of the TBT Agreement in a specific case,
however, will depend on the degree to which it "bears specifically" 740 on the interpretation and
application of the respective term or provision. In the present dispute, we consider that the
TBT Committee Decision bears directly on the interpre tation of the term "open" in Annex 1.4 to the
TBT Agreement , as well as on the interpretation and application of the concept of "recognized
activities in standardization".
373. The TBT Committee Decision clarifies the temporal scope of the requirement that a body be
"open". It states, in relevant part:

736See also Brazil's third participant's submission, pa ra. 55, noting with reference to the Decision:
"WTO Members agreed that participation in the formulation of international standards should be available to all
those who wish to engage therein."; and Japan's third participant's submission, para. 23: "The 2000 Decision
reflects a consensus observation that if the TBT Agreement is to accord special status to the international
standards, guidelines and recommendations made by some organizations, then the membership of these
organizations must, for instance, be open on a non-discriminatory basis to relevant bodies of at least all WTO
Members—including non-discriminatory and impartial acce ss to participation at the policy development level,
and at every stage of standards development."
737Emphasis Added. In the deliberations leading up to the adoption of the Decision, the
TBT Committee noted: "that international standards, gui des and recommendations were important elements of
the Agreement and played a si gnificant role in its implementation. Articles 2.4, 2.5, 5.4, and Paragraph F of
Annex 3 of the Agreement placed an emphasis on th e use of international standards, guides and
recommendations as a basis for domestic standards, technical regulations and conformity assessment
procedures, with the objective of reducing trade barriers. Articles 2.6, 5.5, and Paragraph G of Annex 3
emphasized the importance of Members' participation in in ternational standardization activities, with a view to
harmonizing technical regulations, conformity assessment procedures and standards on as wide a basis as
possible." (G/TBT/9, supra, footnote 735, para. 17)
738G/TBT/9, supra, footnote 735, para. 18.
739G/TBT/9, supra, footnote 735, para. 20; G/TBT/1/Rev.10, p. 12.
740See Appellate Body Report, US – Clove Cigarettes , para. 265 (quoting Appellate Body Reports,
EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 390).

Membership of an international st andardizing body should be open
on a non-discriminatory basis to relevant bodies of at least all WTO
Members. This would include openness without discrimination with
respect to the participation at the policy development level and at
every stage of standards development … .
741
374. Thus, in order for a standardizing body to be considered "international" for the purposes of
the TBT Agreement, it is not sufficient for the body to be open, or have been open, at a particular point
in time. Rather, the body must be open "at every stage of standards development".
375. Moreover, the TBT Committee Decision clarifies th at a standardizing body must be open "on
a non-discriminatory basis". Thus, provisions for accession that de jure or de facto disadvantage the
relevant bodies of some Members as compared to other Members would tend to indicate that a body is
not an "international" standardizing body for the purposes of the TBT Agreement.
376. In addition, the TBT Committee Decision assist s in the determination of whether an
international body has "recognized activities in standardization". As an initial matter, we note that the
TBT Committee Decision establishes principles a nd procedures that WTO Members have decided
"should be observed" in the development of interna tional standards. Evidence that an international
body has followed the principles and procedures of the TBT Committee Decision in developing a
standard would therefore be relevant for a de termination of whether the body's activities in
standardization are "recognized" by WTO Members. More specifically, we recall that the word
"recognize" is defined as "[a]cknowle dge the existence, legality, or validity of, [especially] by formal
approval or sanction; accord notice or atten tion to; treat as worthy of consideration" 742 and that the
concept of "recognition" has a factual and a normative dimension. From a factual perspective, we
note that the standardizing activities of a body that disseminates information about its standardization
activities, as envisaged by the transparency procedures of th e TBT Committee Decision, would
presumably be acknowledged to exist, accorded notice or attention, and treated worthy of
consideration by all WTO Members that make a good faith effort to follow international
standardization activities. In terms of the norma tive connotation of the concept of "recognition", we
observe that, to the extent that a standardizing b ody complies with the principles and procedures that

741TBT Committee Decision, para. 6.
742Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. II, p. 2489. See also Panel Report, para. 7.686.

WTO Members have decided "should be observed" in the development of international standards, it
would be easier to find that the body has "recognized activities in standardization".743
377. We further note that the objectives expressed in the TBT Committee Decision with respect to
the development of international standard s are similar to the objectives that the Code of Good
Practice for the Preparation, Adoption and Application of Standards contained in Annex 3 to the
TBT Agreement pursues with respect to standards adopted by local, national, and regional
governmental and non-governmental standardizi ng bodies. Pursuant to Article 4.2 of the
TBT Agreement, "[s]tandardizing bodies that have accepted and are complying with the Code of Good
Practice shall be acknowledged by the Members as comp lying with the principles of this Agreement."
As we see it, this provision lends contextual s upport to our interpretation that evidence of a body's
compliance with procedural and substantive saf eguards formulated by WTO Members would be
relevant for the question of whether its standa rdizing activities are "recognized" for the purposes of
the TBT Agreement.
378. In sum, the TBT Committee Decision clarifies the temporal scope of the requirement that an
international standardizing body be open to the relevant bodies of at least all WTO Members, and
specifies that the body should be open on a non-discriminatory basis. By setting out principles and
procedures that WTO Members have decided "should be observed" by international standardizing
bodies, the TBT Committee Decision also assists in th e determination of whether an international
body's activities in standardization are "recognized" by WTO Members.
379. Finally, we consider how the object and purpose of the TBT Agreement informs the
interpretation of the term "international standardizing body". We note that the TBT Agreement
explicitly encourages the development of interna tional standards. Thus, the preamble of the
TBT Agreement states, in relevant part: " Recognizing the important contribution that international
standards … can make … by improving efficiency of production and f acilitating the conduct of
international trade; Desiring therefore to encourage the development of such international standards".
Moreover, contrary to the SPS Agreement , which defines "international standards, guidelines and
recommendations" by reference to specific organizations744, the TBT Agreement does not contain a list
of international standardizing orga nizations. This suggests that the TBT Agreement also aims to
encourage the development of international standa rds by bodies that were not already engaged in

743With regard to the importance of the normative dimension, we note the European Union's view that
"recognition gives documents issued by [international standardizing organizations] the necessary legitimacy to
justify their potentially far-reaching effects under Article 2.4 of the TBT Agreement." (European Union's third
participant's submission, para. 85) (original emphasis)
744SPS Agreement, Annex A.3(a)-(c). The SPS Agreement also refers to standards developed by other
"relevant international organizations open for membersh ip to all Members, as identified by the Committee".
(SPS Agreement, Annex A.3(d)) However, the SPS Committee has not identified any such organizations.

standardizing activities at the time of the adoption of the TBT Agreement. At the same time, other
elements of the TBT Agreement , as well as the TBT Committee Decision, reflect the intent of
WTO Members to ensure that the development of in ternational standards take place transparently and
with wide participation.
745 The obligations and privileges asso ciated with international standards
pursuant to Articles 2.4 and 2.5 of the TBT Agreement further underscore the imperative that
international standardizing bodies ensure representative participa tion and transparency in the
development of international standards. In an alyzing whether an entity is an "international
standardizing body", a panel needs to balance these considerations.
380. We now turn to review the Panel's interpreta tion of the term "international standardizing
organization".
(a) The Panel's Interpretation of the Term "International"
381. The United States takes issue with the Panel's in terpretation of the term "international" in
Article 2.4. The United States submits that th e Panel's conclusion was based on an "incorrect
understanding of what is required fo r an organization to be 'open'". 746 The United States points out
that both Annex 1 to the TBT Agreement and the ISO/IEC Guide 2: 1991 refer to the openness of a
body in the present tense ("a body that is open"). On this basis, the United States argues that the
organization must be open to all Members during the period during which the standard in question
was developed and it must remain open thereafter. Mexico does not disagree with the United States'

745See TBT Agreement, Article 2.6: "With a view to harmonizing technical regulations on as wide a
basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by
appropriate international standardizing bodies of interna tional standards for products for which they either have
adopted, or expect to adopt, technical regulations."; and Article 12.5: "Members shall take such reasonable
measures as may be available to th em to ensure that international standardizing bodies … are organized and
operated in a way which facilitates active and representativ e participation of relevant bodies in all Members,
taking into account the special problems of developing country Members". See also TBT Agreement ,
Annex 3.G. We note that WTO Members see representativ e participation and the observance of due process in
the development of international standards as essential to the achievement of the trade facilitating objectives of
the TBT Agreement . As the Second Triennial Review of the Operation and Implementation of the
TBT Agreement has noted:
Adverse trade effects might aris e from standards emanating from
international bodies as defined in the Agreement which had no procedures
for soliciting input from a wide range of interests. Bodies operating with
open, impartial and transparent procedures, that afforded an opportunity for
consensus among all interested parties in the territories of at least all
Members, were seen as more likel y to develop standards which were
effective and relevant on a global basis and would thereby contribute to the
goal of the Agreement to prevent unnecessary obstacles to trade.

interpretation, but argues that the AIDCP was open when the AIDCP definition of "dolphin-safe" was
developed.747
382. As noted above, we are of the view that th e TBT Committee Decision clarifies the temporal
scope of the requirement that a body be "open" to the relevant bodies of at least all WTO Members.
Specifically, the body must be open "at every stage of standards development".
383. The United States further argues that the fact that all States whose vessels fished for tuna in
the Agreement area during the signature period were e ligible to join the AIDCP, and that there were
no prohibitions of fishing in the Agreement area at the time, does not mean that the AIDCP was open
to all Members, since Members who may have an in terest in the AIDCP's activities other than fishing
(such as consumer or conservation interests) were ineligible to become parties to the AIDCP. Mexico
responds that it is presumably understandable that an y State or regional organization that has interest
in the AIDCP regulation of tuna fishing techniques can accede today by a simple invitation of the rest
of Members.
384. We agree with the United States that an intern ational standardizing body must not privilege
any particular interests in the development of interna tional standards. In this respect, we note that the
TBT Committee Decision states, under the heading "Impartiality and Consensus", that:
All relevant bodies of WTO Members should be provided with
meaningful opportunities to contribu te to the elaboration of an
international standard so that th e standard development process will
not give privilege to, or favour the interests of, a particular supplier/s,
country/ies or region/s.
748
385. With respect to the Panel's finding that the AIDCP remains open to all Members on a non-
discriminatory basis since any State or regional eco nomic integration organiza tion can be invited to
accede to the Agreement on the basis of a decision by the parties, the United States asserts that a body
in which Members may participate by invitation only is not a body that is open. The United States
stresses that becoming a party to the AIDCP is not an option available to at least all Members; it is an
option available only to those Members invited. For the United States, it follows therefore that not all
Members have the ability to participate in review or revision of the definitions at issue. Mexico
responds that being invited to accede to the AIDCP is a "formality".749
386. The question whether a body is "open" if all WTO Members or th eir relevant bodies can
accede pursuant to an invitation has to be decided on a case-by-case basis. It is conceivable that an

748TBT Committee Decision, para. 8.

invitation might indeed be a "formality". In our view, this would be the case if the invitation occurred
automatically once a Member or its relevant body h as expressed interest in joining a standardizing
body. A panel must therefore carefully scrutini ze the provisions, procedures, and practices governing
accession to a standardizing body before concluding th at it is "open to the relevant bodies of at least
all Members".
(b) The Panel's Interpretation of the Concept of "Recognized Activities
in Standardization"
387. The United States also takes issues with th e Panel's interpretation of the concept of
"recognized activities in standardization". We reca ll the Panel's finding that "the term 'recognized'
refers to the body's activities in standards developmen t, and that the participation in these activities of
the countries that are parties to the Agre ement is evidence of their recognition."
750 The Panel added
that "such recognition may also be inferred from the recognition of the resulting standard, i.e. when its
existence, legality and validity has been acknowledged."751
388. On appeal, the United States submits that the first criterion articulated by the Panel for
assessing whether activities are "recognized" is flawed. According to the United States, by suggesting
that participation in standardizing activities is evidence of the recognition of those activities, the Panel
effectively reads the term "recognized" out of the de finition. The United States suggests that, if the
act of creating a standard was at the same time an act of recognition by the creators, there would be no
need to specify that standardization activity need to be recognized, since the existence of a standard
would, in itself, establish that recognition occurred.
389. Mexico agrees with the Panel that participati on by countries in the development of a standard
is sufficient evidence of their recognition. Mexi co further submits that the elaboration of the
"dolphin-safe" definition was one of the main reasons for many Members to participate in the AIDCP.
Mexico suggests that this is a "clear signal of acknowledgement".752
390. We see no reason why participation in a body's standardizing activities could not constitute
evidence suggesting that a body is engaged in "rec ognized" activities. In our view, the United States'
concern that this interpretation "effectively r ead[s] the term 'recognized' out of the definition" 753 of an
"international standard" may have arisen because the Panel was silent on who must recognize a body's
standardizing activities for the purposes of the TBT Agreement. We have already noted above that, in
examining whether an international body has rec ognized activities in standardization, evidence of

750Panel Report, para. 7.686.
751Panel Report, para. 7.686.

recognition by WTO Members, as well as evidence of recognition by national standardizing bodies,
would be relevant. As we see it, the recognition of those who participate in the development of a
standard would not necessarily be sufficient to find that a body has recognized activities in
standardization, since the obligations and privileg es associated with international standards pursuant
to the TBT Agreement apply with respect to all WTO Members, not merely those who participated in
the development of the respective standard. Neverthel ess, it seems to us that the larger the number of
countries that participate in the development of a standard, the more likely it can be said that the
respective body's activities in standardization are "recognized".
391. The United States agrees with the Panel that r ecognition of standardizing activity may occur
"through acknowledgment of a body's standards", but alleges that the Panel did not properly apply this
concept.754 In response, Mexico notes that the fact that the United States does not allow the use of the
AIDCP "dolphin-safe" label does not mean that the AIDCP does not have "standardizing activities" or
that the AIDCP "dolphin-safe" label is not currently being used.
392. We agree with the Panel that recognition of a body's standardization activities may "be
inferred from the recognition of the resulting standard , i.e. when its existence, legality and validity
[have] been acknowledged". 755 While we regard the recognition of a body's standards by WTO
Members and national standardizing bodies as highl y pertinent evidence that a body has recognized
activities in standardization, we do not consider th at only a body whose standards are widely used can
have recognized activities in standardization for the purposes of the TBT Agreement.
393. The United States further submits that, in any event, recognition of a single standard would
not amount to recognition of a body's "standardizing activities". For the United States, the plural
"activities" implies that the body h as been involved in the developmen t of more than one standard.
Restricting the concept of "recognized activities in st andardization" to bodies with a track record of
developing standards would also ensure that Members were aware whether a standard being
developed in a particular body would trigger the corresponding obligations in the TBT Agreement.
756
394. We disagree with this argument. As noted above , the term "activity" may refer to an instance
of action, as well as a state. Moreover, we find it difficult to see why an international organization
that develops a single standard could not have "recognized activities in standardization" if other
evidence suggests that the body's standardization activities are recognized, for example, if a large
number of WTO Members participate in the develo pment of the standard, acknowledge the validity

755Panel Report, para. 7.686.

and legality of the standard, or the body follo ws the principles contained in the TBT Committee
Decision.
(c) The Panel's Interpretation of the Term "Organization"
395. As we understand it, the United States' appeal of the Panel's finding that the AIDCP is an
"organization" is not directed at the Panel's interp retation of that term, but is limited to the Panel's
application of the term to the facts of the case, as well as the factual basis for the Panel's conclusion.
In any event, we recall that, for the purposes of the TBT Agreement, international standards need to be
adopted by "international standardizing bodies", which may, but need not necessarily, be
"international standardizing organizations". The Panel thus erred in finding that it had to consider
whether the AIDCP standard was adopted by an "organization", rather than by a "body".
2. Whether the Panel Erred in Finding that the AIDCP Standard Is A "Relevant
International Standard" within the Meaning of Article 2.4 of the
TBT Agreement
396. We now proceed to evaluate whether the Panel e rred in finding that the AIDCP standard is a
"relevant international standard" within the meaning of Article 2.4 of the TBT Agreement. As noted,
the Panel's finding is based on its intermediate conclusions that the AIDCP "dolphin-safe" definition
and certification c onstitute a standard 757, that the AIDCP is an "international standardizing
organization"758, and that the AIDCP standard was made available to the public.759
397. We begin by considering whether the Pane l erred in concluding that the AIDCP is
"international", that is, that membership in the AIDCP is open to the relevant bodies of at least all
Members.
398. Mexico suggests that being invited to accede to the AIDCP is a "formality".
760 Mexico also
states that "[n]o additional countries or regional economic integration orga nizations have expressed
interest in joining the AIDCP" and that "it is common that during the AIDCP meetings, Parties to the
Agreement invite observer countries that regularly attend such meetings with the intention in the
future to become Parties."
761 We have stated above that, in order to show that an invitation to accede
to the AIDCP is a "formality", Mexico would have to prove that the issuance of an invitation occurs
automatically once a WTO Member has expressed interest in joining. This Mexico has not shown. It
is uncontested that the parties to the AIDCP have to take the decision to issue an invitation by

757Panel Report, para. 7.677.
758Panel Report, para. 7.693.
759Panel Report, para. 7.695.

consensus.762 Overall, we are not persuaded that be ing invited to join the AIDCP is a mere
"formality". In the light of the provisions for acce ssion to the AIDCP, it therefore appears that the
AIDCP is not an "international" body for the purposes of the TBT Agreement.
399. In the light of the above, we conclude that the Panel erred in finding, in paragraph 7.693 of
the Panel Report, that the AIDCP is "open to the re levant body of every country and is therefore an
international standardizing orga nization" for the purposes of the TBT Agreement . Instead, we find
that the AIDCP is not open to the relevant bo dies of at least all Members and thus not an
"international standardizing body" for purposes of the TBT Agreement .763 It follows that the Panel
also erred in finding, in paragraph 7.707 of the Panel Report, that the "AIDCP dolphin-safe definition
and certification" constitute a "relevant intern ational standard" within the meaning of the
TBT Agreement.
C. Mexico's Appeal
400. Mexico appeals the Panel's finding, in paragr aph 7.740 of the Panel Report, that Mexico
failed to demonstrate that the AI DCP standard is an effective a nd appropriate means to fulfil the
United States' objectives at the United States' chosen level of protection. Since we have found that the
Panel erred in finding that the AIDCP standard is a "relevant international standard" within the
meaning of Article 2.4 of the TBT Agreement, we do not need to address this issue.
D. Conclusion
401. In the light of the above, we reverse the Panel's finding, in paragraph 7.693 of the Panel
Report, that the AIDCP is "open to the relevant body of every country and is therefore an international
standardizing organization" for the purposes of Article 2.4 of the TBT Agreement. We also reverse
the Panel's finding, in paragraph 7.707 of the Pa nel Report, that the "AIDCP dolphin-safe definition
and certification" constitute a "relevant intern ational standard" within the meaning of the
TBT Agreement. In the light of this, the Panel's finding, in paragraph 8.1(c) of the Panel Report, that
the measure at issue is not inconsistent with Article 2.4 of the TBT Agreement stands.

762As pointed out by the United States at the oral h earing, Mexico itself has encountered difficulties in
joining another fisheries management organization, the Western and Central Pacific Fisheries Commission
(WCPFC). (See Panel Report, footnote 505 to para. 7.327)
763Having found that the AIDCP is not "international" for the purposes of the TBT Agreement, we do
not need to address the question of whether the AIDCP is a "body" and has "recognized activities in
standardization".

IX. Mexico's Claims under Articles I:1 and III:4 of the GATT 1994
402. Mexico submits that the Panel erred in exerci sing judicial economy with respect to Mexico's
claims under Articles I and III of the GATT 1994, ther eby acting inconsistently with its obligations
under Article 11 of the DSU, and requests the Appellate Body to complete the legal analysis by ruling
on these claims.
764 The United States counters that the Panel "addressed 'all aspects of Mexico's
claims, including non-discrimination aspects under Artic le 2.1, and other aspects under Article[s] 2.2
and 2.4', such that it was not 'necessary for it to c onsider separately and additionally Mexico's claims
under Articles I:1 and III:4 of the GATT 1994.'"765 The United States further submits that Mexico has
not explained why the use of judicial economy by th e Panel is a failure to assist the DSB in making
recommendations and rulings that would help settle the dispute.766
403. We recall that the principle of judicial economy "allows a panel to refrain from making
multiple findings that the same measure is inconsistent with various provisions when a single, or a
certain number of findings of inconsistency, would suffice to resolve the dispute." 767 Consequently,
"[a] panel need only address those cl aims which must be addressed in order to resolve the matter in
issue in the dispute."768 Nonetheless, the Appellate Body also cautioned that:
[t]he principle of judicial economy has to be applied keeping in mind
the aim of the dispute settlement system. This aim is to resolve the
matter at issue and "to secure a positive solution to a dispute". To
provide only a partial resolution of the matter at issue would be false
judicial economy. A panel has to address those claims on which a
finding is necessary in order to enable the DSB to make sufficiently
precise recommendations and rulings so as to allow for prompt
compliance by a Member with those recommendations and rulings
"in order to ensure effective resolution of disputes to the benefit of all
Members."
769 (footnotes omitted)
404. Accordingly, "panels may refrain from ruling on every claim as long as it does not lead to a
'partial resolution of the matter'."770
405. To us, it seems that the Panel's decision to exercise judicial economy rested upon the
assumption that the obligations under Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of
the GATT 1994 are substantially the same. This assump tion is, in our view, incorrect. In fact, as we
have found above, the scope and content of these provi sions is not the same. Moreover, in our view,

764Mexico's other appellant's submission, paras. 206 and 211.
767Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 133. (original emphasis)
768Appellate Body Report, US – Wool Shirts and Blouses, p. 19, DSR 1997:I, 323, at 340.
770Appellate Body Report, US – Upland Cotton, para. 732.

the Panel should have made additional findi ngs under the GATT 1994 in the event that the
Appellate Body were to disagree with its view that the measure at issue is a "technical regulation"
within the meaning of the TBT Agreement. As a result, it would have been necessary for the Panel to
address Mexico's claims under the GATT 1994 give n that the Panel foun d no violation under
Article 2.1 of the TBT Agreement. By failing to do so, the Panel engaged, in our view, in an exercise
of "false judicial economy" and acted inconsisten tly with its obligations under Article 11 of the
DSU.771
406. In response to questioning at the oral hearing in this appeal, Mexico explained that it was not
requesting that we complete the legal analysis by ruling on Mexico's claims under the GATT 1994 if
we were to find the US measure to be inconsistent with Article 2.1 of the TBT Agreement. As we
have found the US "dolphin-safe" labelling provisions to be inconsistent with Article 2.1, we consider
it not necessary for us to complete the legal analysis in this case. Accordingly, we make no finding in
relation to Mexico's separate claims that the US "dolphin-safe" labelling prov isions are inconsistent
with Article I:1 and Article III:4 of the GATT 1994.
X. Findings and Conclusions
407. For the reasons set out in this Report, the Appellate Body:
(a) finds that the Panel did not err in characterizing the measure at issue as a "technical
regulation" within the meaning of Annex 1.1 to the TBT Agreement;
(b) finds that the Panel erred in its interpreta tion and application of the phrase "treatment
no less favourable" in Article 2.1 of the TBT Agreement; reverses the Panel's finding,
in paragraphs 7.374 and 8.1(a) of the Panel Report, that the US "dolphin-safe"
labelling provisions are not incons istent with Article 2.1 of the TBT Agreement; and
finds instead that the US "dolphin-safe" labelling provisions are inconsistent with
Article 2.1 of the TBT Agreement;
(c) finds that the Panel erred in concluding, in paragraphs 7.620 and 8.1(b) of the Panel
Report, that it has been demonstrated th at the measure at issue is more trade
restrictive than necessary to fulfil the Un ited States' legitimate objectives, taking
account of the risks non-fulfilment would create; and therefore reverses the Panel's
finding that the measure at issue is in consistent with Article 2.2 of the
TBT Agreement;

(d) rejects Mexico's claim that the Panel erred in finding that the United States' objective
of "contributing to the protection of dolphins , by ensuring that the US market is not
used to encourage fishing fl eets to catch tuna in a manner that adversely affects
dolphins" is a legitimate objective within the meaning of Article 2.2 of the
TBT Agreement;
(e) rejects Mexico's request to find the measure at issue inconsistent with Article 2.2 of
the TBT Agreement based on the Panel's finding that the measure did not entirely
fulfil its objectives;
(f) reverses the Panel's finding, in paragraph 7.707 of the Panel Report, that the "AIDCP
dolphin-safe definition and certification" constitute a "relevant international standard"
within the meaning of Article 2.4 of the TBT Agreement . In the light of this, the
Panel's finding, in paragraph 8.1(c) of the Panel Report, that the measure at issue is
not inconsistent with Article 2.4 of the TBT Agreement stands; and
(g) finds that the Panel acted inconsistently with Article 11 of the DSU in deciding to
exercise judicial economy with respect to Mexico's claims under Articles I:1 and III:4
of the GATT 1994.
408. The Appellate Body recommends that the DSB request the United States to bring its measure,
found in the Panel Report, as modified by this Report, to be inconsistent with the TBT Agreement, into
conformity with its obligations under that Agreement.

Signed in the original in Geneva this 1st day of May 2012 by:

Yuejiao Zhang
Presiding Member

 _________________________ _________________________
 Ujal Singh Bhatia Thomas R. Graham
 Member Member

ANNEX I

24 January 2012
 (12-0452)
 Original: English

Notification of an Appeal by the United States 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 20 January 20 12, from the Delegation of the United States,
is being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the Report of the Panel in United States – Measures C oncerning the Importation,
Marketing and Sale of Tuna and Tuna Products (WT/DS381/R) ("Panel Report") and certain legal
interpretations developed by the Panel.

1. The United States seeks review by the Appella te Body relating to the Panel's findings and
legal conclusion that the U.S. dolphin safe labeling provisions
1 constitute technical regulations within
the meaning of the Agreement on Technical Barriers to Trade ("TBT Agreement"). This conclusion
is in error and is based on erroneous findings on issues of law and legal interpretations of the
TBT Agreement, including:

(a) the Panel's interpretation and applicati on of the term "with which compliance is
mandatory" in the definition of a techni cal regulation in Annex 1.1 of the TBT
Agreement2; and

1See Panel Report, para. 2.2. The U.S. dolphin safe labeling provisions include the Dolphin Protection
Consumer Information Act ("DPCIA"), regulations promulgated in accordance with the DPCIA, as codified in
Title 50, Section 216 of the Federal Regulations, and the ruling in Earth Island Institute v. Hogarth, 494 F.3d
757 (9th Cir. 2007).
2See Panel Report, paras. 7.100-7.111.

(b) the Panel's finding that U.S. dolphin safe labeling provisions are mandatory within
the meaning of Annex 1.1 of the TBT Agreement.
3

As a result of the foregoing errors, the United Stat es requests the Appellate Body also to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

2. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures
may only partially ensure that consumers are in formed about whether tuna was caught by using a
method that adversely affects dolphins.
4 The Panel drew this conclusion based on factual findings
that were without a sufficient evidentiary basis, without assessing the totality of the evidence, and
without adequate explanation, including:

(a) the Panel's conclusion that Mexico h as demonstrated that the use of fishing
techniques other than setting on dolphins outside of the Eastern Tropical Pacific
("ETP") may produce and has produced significant levels of dolphin bycatch
5;

(b) the Panel's finding that the U.S. provisions do not allow the consumer to accurately
distinguish between tuna caught in a manner that adversely affects dolphins and other
tuna6;

(c) that the threats faced by dolphins outsi de the ETP are not demonstrated to be lower
than similar threats faced by dolphins in the ETP7;

(d) that the differences with respect to the de pletion status of the dolphin stocks at issue
inside and outside of the ETP are not su fficient to justify the differences in
certification requirements under the U.S. provisions8; and

(e) that the requirements applicable in diffe rent fisheries under the U.S. provisions are
not calibrated to the likelihood of dolphins being killed or seriously injured.9

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

3. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures
may only partially fulfill their stated objective of contributing to the protection of dolphins by
ensuring that the U.S. market is not used to encour age fishing fleets to catch tuna in a matter that
adversely affects dolphins.
10 The Panel drew this conclusion based on factual findings that were
without a sufficient evidentiary basis, without asses sing the totality of the evidence, and without
adequate explanation, including:

3See Panel Report, paras. 7.113-7.145.
4See Panel Report, paras. 7.592, 7.599.
5See Panel Report, paras. 7.517-7.531.
6See Panel Report, paras. 7.542-7.545.
7See Panel Report, para. 7.562.
8See Panel Report, paras. 7.550.
9See Panel Report, paras. 7.559-7.561.
10See Panel Report, paras. 7.592, 7.599.

(a) the Panel's conclusions and findings as set forth in paragraphs 2(a)-(e) above11; and

(b) that the U.S. provisions do not calibrate the dolphin safe certification requirements to
the likelihood of interaction and harmful effects to dolphins.
12

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

4. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's legal conclusion Mexico identified a
reasonably available, less trade-restrictive alte rnative that would achieve a level of protection
equivalent to that achieved by the U.S. provisions.
13 This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations of the TBT Agreement, including:

(a) the conclusion that the ex tent to which consumer would be misled or deceived would
be no greater under the proposed alternative than under the U.S. measures14;

(b) that the proposed alternative would not create greater risks to dolphins in the ETP
than the U.S. provisions, and would fulfill the U.S. objectives at a level equivalent to
the U.S. provisions15;

(c) that significant dolphin mortality arises outside of the ETP from fishing techniques
other than setting on dolphins16;

(d) that the U.S. provisions do not address adverse impacts from fishing techniques other
than setting on dolphins outside the ETP17; and

(e) that at least some of the dolphin populations affected by fishing techniques other than
setting on dolphins are facing risks at least equivalent to those currently faced by
dolphin populations in the ETP under Agreement on International Dolphin
Conservation Program ("AIDCP") monitoring.
18

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

5. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's legal conclusion that U.S. dolphin
safe labeling provisions are more trade-restrictive than necessary to fulfill th eir legitimate objectives,
taking account of the risks non-fulfilment would create. This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations of the TBT Agreement, including:

(a) the Panel's conclusions as set forth in paragraph 4; and

11See Panel Report, para. 7.590.
12See Panel Report, para. 7.600.
13See Panel Report, para. 7.578.
14See Panel Report, paras. 7.573-7.574, 7.577, 7.618-7.619.
15See Panel Report, para. 7.614, 7.617.
16See Panel Report, para. 7.613.
17See Panel Report, para. 7.613.
18See Panel Report, para. 7.617.

(b) that the proposed alternative would be less trade-restrictive than the U.S. provisions,
in that it would allow greater competitive opportunities on the U.S. market to
products with access to the AIDCP label.
19

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

6. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that Mexico had identified
an alternative that is less trade restrictive than the U.S. provisions. The Panel drew this conclusion
based on factual findings that were without a sufficient evidentiary basis, without assessing the
totality of the evidence, and without adequate e xplanation, including that the proposed alternative
would allow greater competitive opportunities on the U.S. market to products with access to the
AIDCP label.
20 As a result of the foregoing errors, the United States also requests the Appellate Body
to reverse the Panel's legal conclusion in paragraph 8.1(b) of the Panel Report and its recommendation
in paragraph 8.3 of the Panel Report.

7. If the Appellate Body were to reject the U. S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's finding that the AIDCP dolphin safe
definition and certification constitute a "relevant international standard" within the meaning of
Article 2.4 of the TBT Agreement. This conclusion is in error and is based on erroneous findings on
issues of law and legal interpretations of the TB T Agreement, including the Panel's finding that the
AIDCP is an international standardizing organiza tion for the purpose of Article 2.4 of the TBT
Agreement.
21 The United States requests the Appellate B ody find that the Panel failed to make an
objective assessment of the matter before it as called for by Article 11 of the DSU by concluding that
there are "institutional links" between the AI DCP and the Inter-American Tropical Tuna
Commission.22

19See Panel Report, para. 7.568.
20See Panel Report, para. 7.568.
21See Panel Report, paras. 7.678-7.693.
22See Panel Report, para. 7.684.

ANNEX II

27 January 2012
 (12-0568)
 Original: English

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 (WT/DS381/R) ("Panel Report"),
certain legal interpretations develope d by the Panel in this dispute, a nd the Panel's failure to make an
objective assessment of the matter as required by Article 11 of the DSU.

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

I. A
PPEAL OF THE PANEL'S CONCLUSION THAT THE U.S. DOLPHIN SAFE LABELLING
PROVISIONS ARE NOT INCONSISTENT WITH ARTICLE 2.1 OF THE TBT AGREEMENT AND
THE PANEL'S FAILURE TO MAKE AN OBJECTIVE ASSESSMENT OF THE MATTER BEFORE
IT AS REQUIRED BY ARTICLE 11 OF THE DSU
3. Mexico seeks review by the Appellate Body of the Panel's findings that the U.S. dolphin-safe
labeling provisions are not 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.

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

6See Panel Report, paras. 8.1(c) and 7.717-7.740.
7See Panel Report, paras, 7.717-7.740.
8See Panel Report, paras. 7.400-7.444.
9Panel Report, paras. 7.445-7.623.
10See, e.g., Panel Report, paras. 7.563 and 7.599.