UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO NOTIFICATION OF AN 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
Document: UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 10 June 2015
Document codes: WT/DS381/24
Complainant: Mexico
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Ecuador, EU, Guatemala, India, Japan, South Korea, New Zealand, Norway
Dispute stage: Implementation & Compliance
Agreements cited: Art. I:1, III:4  GATT 1994Art. 2.1, 2.2, 2.3, 2.4  Technical Barriers to Trade (TBT)

UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND
SALE OF TUNA AND TUNA PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO
NOTIFICATION OF AN 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 communication, dated 5 June 2015, from the delegation of the United States,
is being circulated to Members.

Settlement of Disputes ("DSU") and to 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 Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products: Recourse to Article 21.5 of the DSU by Mexico
() ("Panel Report") and certain legal interpretations developed by the Panel.
2. The United States seeks review by the Appellate Body of the Panel's findings and conclusion
that the amended U.S. dolphin safe labeling measure is inconsistent with Article 2.1 of the
Agreement on Technical Barriers to Trade (the "TBT Agreement") because it accords less favorable
treatment to Mexico's tuna and tuna product exports.
1 This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations, including:
(a) the Panel's finding that the certificat ion requirements of the amended measure
modify the conditions of competition in the U.S. market to the detriment of like
Mexican tuna and tuna products because they impose a lighter burden on tuna and
tuna product caught outside the Eastern Tropical Pacific (ETP) large purse seine
fishery than on tuna and tuna product caught within it.
2

(b) the Panel's finding that the detrimental impact caused by the certification
requirements does not stem exclusively fr om legitimate regulatory distinctions
because the requirements for tuna caught outside the ETP large purse seine fishery
may result in inaccurate information being passed to consumers.3

1 See, e.g., Panel Report, paras. 7.233, 7.263, 8.2(b) (with respect to the certification requirements);
id. paras. 7.400, 8.2(c) (with respect to the tracking and verification requirements).
2 See, e.g., Panel Report, paras. 7.162, 7.170, 7.178-179, 7.454, 7.500, 8.2(b). The United States
considers that the Panel erred as a matter of law with respect to this finding. However, to the extent that the
Appellate Body considers the question of the meaning of municipal law in this instance to be a question of fact,
the Panel acted inconsistently with Article 11 of the DSU in concluding that the certification requirements apply
to all tuna and tuna product.
3 See e.g., Panel Report, paras. 7.233-7.234, 7.246, 7.598-7.602, 8.2(b).

(c) the Panel's finding that the detrimental impact caused by the certification
requirements does not stem exclusively from legitimate regulatory distinctions due
to the design of the determination provisions.
4

(d) the Panel's finding that the tracking and verification requirements of the amended
measure modify the conditions of competition in the U.S. market to the detriment
of like Mexican tuna and tuna products because they impose a lesser burden on
tuna and tuna product caught outside the ETP large purse seine fishery than on
tuna and tuna product caught within it.
5

(e) the Panel's finding that the detrimental impact caused by the tracking and
verification requirements does not stem exclusively from legitimate regulatory
distinctions.
6

3. The United States also seeks review by the Appellate Body of the Panel's findings and
conclusions that the amended U.S. dolphin safe labeling measure is inconsistent with Articles I:1
and III:4 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994")
7 a n d , i f t h e
Appellate Body should not reverse the Panel's finding with respect to either Article I:1 or
Article III:4, then the United States seeks revi ew of the Panel's findings that the amended
measure is not applied consistently with the Article XX chapeau. 8 These conclusions are in error
and are based on erroneous findings on issues of law and legal interpretations, including:
(a) the Panel's finding that the certification requirements of the amended measure are
inconsistent with Article I:1 of the GATT 1994 because they require observer
coverage for purse seine vessels in the ETP but not for vessels in other fisheries.9

(b) the Panel's finding that the tracking and verification requirements of the amended
measure are inconsistent with Article I:1 of the GATT 1994 because they impose a
lesser burden on vessels outside the ETP large purse seine fishery than on vessels
within it.10

(c) the Panel's finding that the certification requirements of the amended measure are
inconsistent with Article III:4 of the GATT 1994 because they impose a lighter
burden on tuna caught outside the ETP large purse seine fishery than inside it.
11

(d) the Panel's finding that the tracking and verification requirements of the amended
measure are inconsistent with Article I II:4 of the GATT 1994 because they impose
a lighter burden on tuna caught outside the ETP large purse seine fishery than
inside it.12

(e) the Panel's finding that the certificat ion requirements of the amended measure
impose "arbitrary and unjustifiable discrimination between countries where the
same conditions prevail," contrary to the chapeau of Article XX of the GATT 1994,
because the requirements for tuna and tuna product caught outside the ETP large
purse seine fishery make it easier for non-dolphin-safe tuna to be incorrectly
labeled as dolphin safe.
13

4 See e.g., Panel Report, paras. 7.258-263, 7.283, 8.2(b).
5 See, e.g., Panel Report, paras. 7.369-7.372, 7.382, 7.462-7.463, 7.502, 8.2(c). The United States
considers that the Panel erred as a matter of law with respect to this finding. However, to the extent that the
Appellate Body considers the question of the meaning of municipal law in this instance to be a question of fact,
the Panel acted inconsistently with Article 11 of the DSU in concluding that the tracking and verification
requirements apply to all tuna and tuna product.
6 See, e.g., Panel Report, paras. 7.392, 7.395, 7.397-7.402, 8.2(c).
7 See, e.g., Panel Report paras. 7.455-456, 7.500-7.501, 7.504, 8.3(b) (with respect to the certification
requirements); id. paras. 7.464-465, 7.502-7.504, 8.3(c) (with respect to the tracking and verification
requirements).
8 See, e.g., Panel Report, paras. 7.603-7.605, 8.5(b) (with respect to the certification requirements);
id. paras. 7.611, 8.5(c) (with respect to the tracking and verification requirements).
9 See, e.g., Panel Report, paras. 7.455-7.456, 8.3(b).
10 See, e.g., Panel Report, paras. 7.463-7.465, 8.3(c).
11 See, e.g., Panel Report, paras. 7.500-7.501, 8.3(b).
12 See, e.g., Panel Report, paras. 7.502-7.503, 8.3(c).
13 See, e.g., Panel Report, paras. 7.598-7.603, 7.605, 8.5(b).

(f) the Panel's finding that the certificat ion requirements of the amended measure
impose "arbitrary and unjustifiable discrimination between countries where the
same conditions prevail," contrary to the chapeau of Article XX of the GATT 1994,
due to the design of the determination provisions.
14

(g) the Panel's finding that the tracking and verification requirements impose
"arbitrary and unjustifiable discriminat ion between countries where the same
conditions prevail" contrary to the chapeau of Article XX of the GATT 1994 because
they impose a lesser burden on tuna caught other than in the ETP large purse
seine fishery.
15

4. The United States also requests the Appellate Body to find that the Panel failed to make an
objective assessment of the matter before it, as call ed for by Article 11 of the DSU, with regard to
the so-called "determination provisions." 16 The Panel drew its conclusions with regard to these
provisions based on factual findings that were without a sufficient evidentiary basis, without
assessing the totality of the evidence, and without adequate explanation.
17
5. In the event that Mexico appeals the findin g by the Panel that the amended measure,
including the three challenged elements, is pr ovisionally justified under subparagraph (g) of
Article XX of the GATT 1994 and the Appellate Body reverses the finding with respect to any of the
three challenged elements, the United States seek s review of the Panel's exercise of judicial
economy with respect to the U.S. defense under Article XX(b) of the GATT 1994. 18
The United States submits that there are sufficien t facts on the record for the Appellate Body to
complete the analysis of the amended measure, in cluding the three challenged elements, and find
that the measure is provisionally justified under Article XX(b).