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Adopted 3 December 2015
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Complainant Mexico
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Respondent United States
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Third Parties Argentina; Australia; Brazil; Canada; China; Ecuador; European Communities; Guatemala; Japan; Korea, Republic of; New Zealand; Chinese Taipei; Thailand; Turkey; Venezuela, Bolivarian Republic of; Norway
Measures at Issue
This compliance proceeding under Article 21.5 of the DSU concerned measures taken by the United States to implement the recommendations and rulings of the Dispute Settlement Body (DSB) in US–Tuna II (Mexico). In US–Tuna II (Mexico), the DSB found that certain US measures concerning the importation, marketing, and sale of tuna products (taken together, the Original Tuna Measure) were inconsistent with the Agreement on Technical Barriers to Trade (the TBT Agreement).Footnote 1 The Original Tuna Measure, inter alia, contained conditions under which tuna products could be labelled ‘dolphin safe’.Footnote 2 The United States' measure taken to comply with the recommendations and rulings of the DSB consisted of an amendment to the Original Tuna Measure (the 2013 Final Rule).Footnote 3 The Appellate Body generally referred to the Original Tuna Measure, together with the 2013 Final Rule, as the Amended Tuna Measure. The Amended Tuna Measure was the focus of this compliance proceeding.
Main Adopted Findings of the Panel and Appellate Body
TBT Article 2.1 (Treatment No Less Favourable)
The compliance panel found that one challenged aspect of the Amended Tuna Measure was consistent with Article 2.1 of the TBT Agreement and that two other challenged aspects violated Article 2.1 of the TBT Agreement.Footnote 4 On appeal, the Appellate Body ‘conclude[d] that the Panel employed an incorrect analytical approach to assessing whether the amended tuna measure has a detrimental impact on Mexican tuna products in the US market'.Footnote 5 Further, the Appellate Body concluded that the compliance panel had committed additional errors in its analysis regarding whether such detrimental impact stems exclusively from a legitimate regulatory distinction.Footnote 6 The Appellate Body, therefore, reversed the panel's findings regarding Article 2.1 of the TBT Agreement.Footnote 7 The Appellate Body attempted to complete the legal analysis, but found that it could not with respect to certain aspects of the Amended Tuna Measure. The Appellate Body, however, was able to determine that one aspect of the Amended Tuna Measure violated Article 2.1 of the TBT Agreement. Thus, the Appellate Body concluded that the Amended Tuna Measure is inconsistent with Article 2.1 of the TBT Agreement.Footnote 8
GATT Article I:1 (Most Favoured Nation)
The compliance panel found that certain aspects of the Amended Tuna Measure violated Article I:1 of the GATT 1994.Footnote 9 On appeal, the Appellate Body concluded that the panel had ‘applied an incorrect approach’ ‘in assessing whether the amended tuna measure modifies the conditions of competition to the detriment of Mexican tuna products in the US market under Article[ ] I:1 … of the GATT 1994’.Footnote 10 Thus, the Appellate Body reversed the panel's findings regarding Article I:1 of the GATT 1994.Footnote 11 The Appellate Body completed the legal analysis, and found that the Amended Tuna Measure violated Article I:1 of the GATT 1994 because it modifies the conditions of competition to the detriment of Mexican tuna products vis-à-vis tuna products imported from any other country.Footnote 12
GATT Article III:4 (National Treatment)
The compliance panel found that certain aspects of the Amended Tuna Measure violated Article III:4 of the GATT 1994.Footnote 13 On appeal, the Appellate Body concluded that the panel had ‘applied an incorrect approach’ ‘in assessing whether the amended tuna measure modifies the conditions of competition to the detriment of Mexican tuna products in the US market under Article[ ] … III:4 of the GATT 1994’.Footnote 14 Thus, the Appellate Body reversed the panel's findings regarding Article III:4 of the GATT 1994.Footnote 15 The Appellate Body completed the legal analysis, and found that the Amended Tuna Measure violated Article III:4 of the GATT 1994 because it modifies the conditions of competition to the detriment of Mexican tuna products vis-à-vis US tuna products.Footnote 16
GATT Article XX
Before the compliance panel, the United States argued that even if certain aspects of the Amended Tuna Measure were inconsistent with the GATT 1994, such inconsistency was justified under Article XX(b) or Article XX(g) of the GATT 1994.Footnote 17 The compliance panel agreed that all relevant aspects of the Amended Tuna Measure were provisionally justified under Article XX(g) of the GATT 1994,Footnote 18 but found that only one such aspect was further consistent with the chapeau of Article XX.Footnote 19 The panel exercised judicial economy with respect to the United States' arguments regarding Article XX(b) of the GATT 1994.Footnote 20 On appeal, the Appellate Body considered that the panel erred in its application of the legal standard under the chapeau of Article XX, and therefore reversed the panel's findings under Article XX of the GATT 1994.Footnote 21 Because the panel's finding, that all relevant aspects of the Amended Tuna Measure were provisionally justified under Article XX(g) of the GATT 1994, had not been appealed, the Appellate Body was only called upon to complete the legal analysis concerning the chapeau of Article XX.Footnote 22 The Appellate Body found that it could not complete this legal analysis with respect to certain aspects of the Amended Tuna Measure, but was able to determine that one aspect of the Amended Tuna Measure was inconsistent with the chapeau of Article XX.Footnote 23 Thus, the Appellate Body concluded that the Amended Tuna Measure was not justified under Article XX of the GATT 1994.
